Privacy laws should not form impenetrable shield for CAFO information

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Photo by the U.S. Department of Agriculture

Hog finishing facilities, where pigs grow from 50 to 275 lbs. at a three-generation family farm in North Carolina.

Dave Dickey

Dave Dickey

Do you know what defines a very, VERY bad day for a federal district court judge? To have your court of review believe your ruling is so gosh awful that it not only reverses your decision but essentially tells you to open some of those leather dust filled law books in your underused library and try again.

District of Minnesota Judge Ann Montgomery had just such a day earlier this month in the case American Farm Bureau Federation and National Pork Producers Council vs. EPA.

Here’s the background. It’s a twisted path, but these are most of the major points:

2008: The Government Accountability Office takes the Environmental Protection Agency to task for not possessing “reliable information it needs to identify Concentrated Animal Feeding Operations (CAFOs) nationwide” under the rules of the Clean Water Act. The study recommends the EPA develop its own list of permitted CAFOs nationwide.

October 2011: The EPA proposes a rule to gather info on CAFOs.

July 2012: The EPA withdraws its CAFO information rule in face of furious public comment in opposition. NPPC and AFBF surely sigh in relief because if the rule was adopted, CAFO information would have to be disclosed, no questions asked, under section 308 of the Clean Water Act.

2012 forward: The EPA begins centralizing CAFO data already publicly available from state databases in an effort to respond to the GAO’s 2008 study.

February 2013: The EPA receives Freedom of Information requests from three environmental advocacy groups and releases its CAFO database on 19 states. These include the names of farmers, ranchers and sometimes other family members, along with home addresses, GPS coordinates, telephone numbers and emails. Since then, the EPA has obtained CAFO information on seven additional states.

July 2014: The NPPC and AFBF file suit against the EPA for its FOIA release, asking the federal district court of Minnesota for injunctive relief.

Enter District Judge Montgomery, who essentially ruled in her January 2015 decision that NPPC and AFBF lacked constitutional standing in this case to bring suit against EPA, in part because “the Plaintiffs’ member farmers’ information, including their physical addresses, is publicly available from multiple sources, Plaintiffs face a seemingly impossible task of showing that prohibiting the EPA’s distribution of already public information will redress the speculative injuries they currently allege.”

Putting it in a nutshell, District Judge Montgomery ruled NPPC and AFBF can’t argue that farmer’s privacy was invaded by the EPA release because the information was already part of the public record.

But of course you know what happened next: NPPC and AFBF went up the court ladder in October 2015 to the 8th U.S. Circuit Court of Appeals, which on Sept. 9 handed Montgomery her very, VERY bad day.

The 8th Circuit Court of Appeals ruled:

“All told, we conclude that the EPA’s disclosure of spreadsheets containing personal information about owners of CAFOs would invade a substantial privacy interest of the owners while furthering little in the way of public interest that is cognizable under FOIA, Under these circumstances, disclosure ‘would constitute a clearly unwarranted invasion of personal privacy.”

But you can’t put the genie back in bottle, horse back in the barn, invent your own metaphor. The EPA’s detailed CAFO spreadsheets are already out in the wind.

However, the 8th Circuit did go further, sending the case back to District Judge Montgomery to hold hearings on EPA’s CAFO spreadsheets of seven states not released by FOIA request. The case bears watching because Montgomery did not hear arguments on whether the EPA believes there is an exemption within the FOIA that would trump the Privacy Act. Also at stake is whether the EPA violated privacy law.

I generally err on the side of transparency, having done reporting in Illinois where FOIA’s for CAFO information are routinely rejected for privacy concerns.

It seems to me that some CAFO information is in the public interest. Here’s hoping that District Judge Montgomery agrees.


About Dave Dickey

Dickey spent nearly 30 years at University of Illinois at Urbana-Champaign’s NPR member station WILL-AM 580 where he won a dozen Associated Press awards for his reporting. For the past 13 years, he directed Illinois Public Media’s agriculture programming. His weekly column for Big Ag Watch covers agriculture and related issues including politics, government, environment and labor. Email him at dave.dickey@investigatemidwest.org.

This column reflects the writer’s own opinions and not those of Big Ag Watch

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