New High Court FOIA Suit May Limit Access To Industry Data At EPA --From Inside EPA

This is not good news because of the sheer political strength of who's appealing this and will be something to follow very closely. The coal industry and utility giants are behind this one because they like to claim "proprietary information" in response to any scrutiny of their coal ash ponds and sludge holding areas.

This is a huge problem in Alabama with Southern Company, the parent of Alabama Power Company (BARD member), and we went into great detail about two plants in Alabama, E. C. Gaston & Gorgas, that refuse public release of any information on this issue in two previous postings.
Alabama Power Shareholders  Vote Against EPA Regulations
Alabama Power Gorgas Plant Rattlesnake Dam


The withholding of this information serves no public good, in fact, it is the antithesis of it. If the high court rules in favor of the energy giants on this issue we would be foolish to not expect a lot more secrecy in the future from this big polluter gang--that's the last thing that needs to happen given the high level of secrecy already in place.

October 4, 2010

The Supreme Court has agreed to review an appellate decision that, if upheld, could bar public access to industry data held by EPA and other federal agencies under claims that corporations can be shielded from Freedom of Information Act (FOIA) disclosure rules because they have a right to "personal privacy" akin to that afforded to individuals, public interest groups say.

In briefs urging the high court to back the Obama administration's request to overturn the ruling, a coalition of groups cite several examples where they would be unable to obtain data on industry's pollution releases, including a pending request seeking EPA data on Dow Chemical Co. releases in Michigan, as well as data entities may seek on the BP oil spill in the Gulf of Mexico and the Massey coal mining accident in West Virginia.

An attorney for one of the public interest groups says a ruling favoring corporations could have a significant effect on EPA documents because whenever companies cite information from enforcement records as embarrassing -- for instance that they polluted -- they could then claim a privacy interest, seeking to bar disclosure of those documents.

While courts would likely hold that the rights of the public trump a corporation's privacy interest in such cases, the effect of upholding the appellate decision would still have a "chilling effect" on the federal government's release of information, the attorney says, likely resulting in the government deferring release in order to avoid such suits.

The high court Sept. 28 agreed to review Federal Communications Commission (FCC), et al. v. AT&T Inc., et al., a ruling from the U.S. Court of Appeals for the 3rd Circuit that barred the FCC from turning over results of an investigation into "irregularities" in the company's billings to a Connecticut school under a special telecommunications access program.

Supreme Court Justice Elena Kagan has recused herself from the case. Kagan was the U.S. solicitor general who submitted the petition to the court in April.

In its brief urging the court to review the case, the Obama administration argued that the lower court ruling is the first in the law's 35-year history in which a court of appeals has held corporations enjoy "personal privacy" under the statute's Exemption 7(c), which allows agencies to withhold law enforcement records if their disclosure would result in an invasion of personal privacy. "That unprecedented decision creates a new and amorphous privacy concept that finds no support either in FOIA's text or the uniform body of case law and commentary that -- until this case -- instructed that FOIA's 'personal privacy' provisions protect only the interests of individuals," the government's brief says.

AT&T, however, argues that the contention that the 3rd Circuit decision "will wreak havoc with the administration of FOIA is tenuous at best." It points out that the ruling "requires only that agencies consider the privacy interests of corporations in the balancing analysis set forth in Exemption 7(c)." Further, it argues that the ruling was correct, noting that person is defined in statute to include corporations, and Congress' choice to use the adjective "personal . . . must be understood to refer to that definition."

The ruling is the second FOIA case the high court has agreed to hear in its upcoming term: Earlier this year, the court agreed to review Glen Milner v. U.S. Department of the Navy, a case that could decide the reach of an increasingly used exemption from FOIA disclosure requirements that courts have determined allows EPA and other federal agencies to withhold documents that parties can use to circumvent agency regulations.

The court is scheduled to hear arguments in Milner Dec. 1. The Supreme Court convenes its new term next week.

'Personal Privacy' Exemption

In its September 2009 ruling, the appellate court held that because FOIA defines "persons" to include corporations, they should also qualify for the "personal privacy" exemption that the law applies to law enforcement records, known as the 7(c) exemption.

Exemption 7(c) waives from mandatory disclosure records compiled for law enforcement purposes to the extent the production of those records "could reasonably be expected to constitute an unwarranted invasion of personal privacy."

AT&T argues that the plain text of [the law enforcement exemption] indicates that it applies to corporations. After all, 'personal' is the adjectival form of 'person,' and FOIA defines 'person' to include a corporation. We agree. It would be very odd indeed for an adjectival form of a defined term not to refer back to that defined term," the 3rd Circuit said.

But the federal government and open government groups say the ruling could have broad repercussions for public disclosure of government records.

The Obama administration argued in its petition seeking high court review of the case that letting the lower court ruling stand "threatens to revolutionize the manner in which the federal government must process hundreds of thousands of FOIA requests each year."

"Federal agencies have for decades processed FOIA requests under the previously settled understanding that corporations and other non-human entities have no interest in 'personal privacy' protected by FOIA," the government says in its petition asking the court to review the case. If the lower court ruling stands, it also "threatens to impose barriers to the public disclosure of government records concerning corporate malfeasance in government programs that the public has a right to review," the administration's petition says.

In their brief supporting the administration, the coalition of groups -- including Public Citizen, Citizens for Responsibility and Ethics in Government and Reporters Committee for Freedom of the Press -- raises special concerns about the exemption limiting access to pollution data.

For example, the brief notes that upholding the 3rd Circuit's ruling could limit public access to major environmental and health and safety data, including the BP spill in the Gulf of Mexico and the Massey coal mining accident. "Recent events of national importance show how records obtained or created during government investigations into corporate activities can contain information that is crucial for the public to know," the brief says.

The brief also notes that if the 3rd Circuit's ruling were upheld, they would likely have been unable to receive documents that "shed light" on EPA's oversight of a Dow Chemical plant polluting the Saginaw Bay and Lake Huron.

The group received voluminous documents related to EPA's actions, some casting "a negative light on Dow," the brief says. "If exemption 7(c) covered corporations' 'personal privacy,' the agency likely would have withheld many of these important records."

The attorney says the ruling opens the door to companies arguing that disclosure of documents related to pollution would be embarrassing and therefore should be withheld.

The coalition of groups say that such arguments are at odds with the statute, which the groups say grants privacy protections only to "'valid governmental and individual interests in confidentiality." But the groups' brief notes that if the court upholds the argument, "then each time a request is made for records concerning newsworthy topics like the economic downturn, oil spill, and mine explosion, delay and withholding could result." Suzanne Yohannan