Appeals court sides with farm groups on CAFO info

By Stephen Davies

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WASHINGTON, Sept. 9, 2016 - EPA violated the Freedom of Information Act by releasing personal information, including phone numbers and email addresses, of the owners of concentrated animal feeding operations (CAFOs), a federal appeals court ruled today.

The unanimous decision by the 8th Circuit Court of Appeals in St. Louis is a big victory for the American Farm Bureau Federation and the National Pork Producers Council, which sued EPA three years ago after it released CAFO information to environmental groups. The court reversed the decision of U.S. District Judge Ann Montgomery in Minnesota, who found that AFBF and NPPC had not been able to demonstrate standing on behalf of their members.

Farm Bureau general counsel Ellen Steen said AFBF is reviewing the decision and its implications, but she called it "a clear and very significant win for farmers and ranchers. The decision is a vindication of the right of farm families to protect their personal information, such as their home address and GPS coordinates, their phone numbers and email addresses."

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The appeals court "recognized that EPA cannot legally gather farmers' and ranchers' personal information and serve it up on a silver platter to anyone who asks for it," Steen said. "We are thrilled that AFBF was able to stand up and defend the privacy of farmers and ranchers in this way."

EPA contended that because the information is already publicly available, the plaintiffs “cannot show causation or redressability” - essential elements of legal standing.

The appeals court disagreed. “The agency asserts that the disputed information is already publicly available through the states, and the court cannot prevent further distribution and use of that information by third parties,” the 8th Circuit said. “This argument, however, rests on the agency's flawed understanding of the plaintiffs' alleged injury in fact. The asserted injury is the nonconsensual disclosure of personal information by the EPA. That injury was caused by EPA's disclosures and threatened disclosures, and it can be redressed by an order requiring EPA to refrain from future disclosures and to recall information previously disclosed.”

The environmental groups that intervened on the side of EPA in the case - Food & Water Watch, the Environmental Integrity Project and Iowa Citizens for Community Improvement - had argued that AFBF's and NPPC's claims are moot because EPA had already released the information, which will remain available to the public.

But the 8th Circuit said “the case is still live,” noting that “EPA has proposed to disclose more information from seven states, including Minnesota, and . . . EPA has the capacity to request the return of information that it already disclosed.”

EPA also had said that it did not violate FOIA's prohibition against release of “private” information such as personnel and medical files because the information it released was already available from the individual states.

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But the court said EPA's reasoning was “contrary to law.”

“The EPA here is more than simply a second source for identical, publicly available information,” the court said. “The agency has aggregated vast collections of data from the majority of states - much of it obtained through state-specific information requests - and provided it to requesters in a single response,” the court said.

The case now goes back to the district court, where AFBF said the remaining question is whether the Farm Bureau and NPPC can obtain an injunction to prevent future releases of farmers' and ranchers' personal information. 

The environmental groups have disputed AFBF and NPPC's argument that the case is about personal information. When they sought to intervene in the case in 2013, Food & Water Watch Executive Director Wenonah Hauter said it was about obtaining “basic information - the identities and contact information of owners and operators of these facilities.”

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