What Information About Applicants for Environmental Permits is Publicly Available Under the Freedom of Information Law?

The United States Court of Appeals for the Eighth Circuit recently decided that personal information about applicants for environmental permits is exempt from disclosure under the Freedom of Information Law (FOIA). American Farm Bureau Federation v USEPA, 2016 WL 4709117 (8th Cir. 2016).

The case arose out of a challenge by the American Farm Bureau Federation and the National Pork Producers Council to the disclosure of certain personal information about their members. The Clean Water Act prohibits the discharge of pollutants into waters of the United States, except as authorized under the Act. Members of the plaintiff associations own or operate concentrated animal feeding operations (CAFOs)that had discharge permits issued by USEPA. When applying for a permit, owners and operators are required to submit permit applications that include some personal information (e.g. names, addresses, email addresses and phone numbers). EPA obtained information about other CAFOs from states. While EPA was gathering information about CAFOs, several environmental organizations file Freedom of Information Requests about CAFOs. After disclosure of the information, the plaintiffs raised concerns and EPA took the position that the disclosure was required by FOIA.

The plaintiffs based their claim on the 6th exemption to FOIA, which exempts from disclosure “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” EPA took the position that disclosure was required because the information was publicly available from other sources and the public interest in the information meant that the request was not “unwarranted.” The Court rejected that argument, finding that the disclosure could be a substantial invasion of privacy because it could facilitate harassment of the owners. The Court also rejected the claim that the privacy interests were reduced by the fact that the information was publicly available from other sources.

We live in a world in which the government is always gathering information about businesses. This decision informs business owners that their private information can be protected from public disclosure, even if it is publicly available from other sources.

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