Energy and Environment Monitor

Court Slaps Down EPA Over Improper Disclosure of Private Information

September 21, 2016

By: Blair M. Gardner

The U.S. Court of Appeals for the Eighth Circuit handed the EPA an unexpected reversal last week in a case involving its unlawful disclosure of private information to environmental groups. The Eighth Circuit reversed a district court which had concluded that the farm organizations which sued EPA did not have standing to bring the action. More important, the circuit court addressed the merits of their Freedom of Information Act (FOIA) claim to conclude that EPA wrongly provided private information to the environmentalists after it had secured it from state agencies.

At issue is information about “concentrated animal feeding operations” (CAFOs), defined as an area where animals are confined and fed for a specific period of time. Once a CAFO is established, discharges from the area must secure an NPDES permit from EPA or the authorized state agency which administers the Clean Water Act. EPA collected information about CAFOs from 35 states beginning in 2011, all of which was publicly accessible. In 2013, three environmental groups submitted a FOIA for the information including the legal name of the CAFO, mailing and e-mail addresses, GPS coordinates, and primary telephone numbers. EPA concluded that an exemption under FOIA which would have precluded the disclosure did not apply. The American Farm Bureau Federation and the National Pork Producers Council then brought a “reverse” FOIA action under the Administrative Procedures Act claiming that EPA had acted arbitrarily and capriciously in disclosing the information.

The Court reached two interesting conclusions about EPA’s decision to disclose the aggregated information. First, the “CAFO owners still have a privacy interest in preventing the mass aggregation and release of their personal information by the government.” Notwithstanding the availability of the information, “the agency’s comprehensive listing of CAFOs substantially increases the public visibility and accessibility of that information.” In other words, EPA had no interest in serving as the aggregator of the information for the public’s use.

Second, a general interest of the public in disclosure of the CAFO information did not outweigh the owners’ privacy concerns. The Court observed that the relevant public interest is “the extent to which disclosure of the information sought would shed light on an agency’s performance of its statutory duties [.]” In other words, the public interest vindicated by FOIA is the right of individuals to police the actions of their government, not a right to police other citizens. The fact that the CWA itself gives individuals the right to bring suits did not justify EPA’s FOIA disclosures to promote that outcome.

The case is American Farm Bureau; National Pork Producers Council v. U.S. Environmental Protection Agency, No. 15-1234, U.S. Court of Appeals for the Eighth Circuit (October 22, 2016).

This article was authored by Blair M. Gardner, Jackson Kelly, PLLC.