The cows are out of the barn, but a court finally closed the door on public release of names and locations of concentrated animal feeding operations (CAFOs).
In a unanimous ruling on Sept. 9, the U.S. Court of Appeals for the Eighth Circuit said the U.S. Environmental Protection Agency (EPA) violated the personal privacy of tens of thousands of farmers when it released names, addresses and other information concerning CAFOs. The ruling in American Farm Bureau Federation (AFBF), et al. v. EPA, et al. found that personal contact information for CAFOs should have fallen under a Freedom of Information Act (FOIA) exemption for private data.
The American Farm Bureau Federation (AFBF) and National Pork Producers Council (NPPC) had formally appealed a lower court ruling that allowed EPA to publicly release the information. That appeal, filed in April 2015, sought to reverse a ruling three months earlier by U.S. District Judge Ann Montgomery, in the U.S. District Court for the District of Minnesota (Case No. 15-1234).
“This was an unwarranted invasion of personal privacy by a federal agency in violation of law,” said AFBF general counsel Ellen Steen. “The court’s decision is a vindication of the right of farm families to control their own personal information. Farmers and ranchers have a strong privacy interest in their personal information, including their home address, even when they live and work on the farm.”
The lengthy legal battle stemmed from the 2013 EPA release of CAFO database information to three environmental advocacy groups under FOIA requests. The database included the names of farmers, ranchers and sometimes other family members, home addresses and GPS coordinates, home telephone numbers and personal emails.
In July 2013, AFBF and NPPC filed an injunction in the U.S. District Court for the District of Minnesota to block EPA from publicly releasing additional data under FOIA requests until a court could clarify EPA’s obligation to keep personal information about citizens private.
However, in her 2015 ruling, Judge Montgomery dismissed the case, concluding the farm groups lacked standing because the information released by EPA was already publicly available, and that CAFOs had yet to see any injury due to the release of the information. By dismissing the suit, Judge Montgomery ruled that farmers are not harmed when the government compiles and releases a storehouse of personal information, so long as individual bits of that information are somehow publicly accessible, such as through an internet search or on a Facebook page.
After Montgomery’s ruling, AFBF appealed the case dismissal, and requested and received a stay preventing EPA from releasing personal information in six additional states until the case was resolved.
In its ruling, the the Eighth Circuit appeals court recognized farm families usually live on the farm, noting that EPA’s disclosures could facilitate unwanted contact and harassment by the FOIA requestors and others.
“EPA’s release of the complete set of data on a silver platter, so to speak, basically hands to the requesters a comprehensive database of their own, whatever their motives might be,” according to the court.
“EPA now must ‘recall’ all of the personal information it unlawfully released, but unfortunately that information has now been in the hands of the FOIA requestors for three years, and many feel that the damage is done,” Steen said.
More history
The case actually has roots in EPA oversight of CAFOs through National Pollutant Discharge Elimination System (NPDES) regulations, dating back to about 2000. In 2008, the General Accountability Office issued a report concluding EPA did not possess reliable information it needed to identify and inspect CAFOs.
In October 2011, EPA published a proposed CAFO reporting rule, which would have required all CAFOs nationwide to submit basic information to EPA; or required EPA to collect basic information from CAFOs in specific watersheds. The proposed rule would have allowed EPA to collect information, like locations and animal population sizes, and make it publicly available and readily searchable through an EPA website.
Farmers, agricultural organization, USDA and even the Department of Homeland Security expressed concerns that the proposed rule was not only a serious overreach of EPA’s authority, but would create a road map for activists to harass individual families, and aid and abet terrorism and provide a threat to the nation’s food security.
EPA withdrew the proposed rule in July 2012, saying it was more appropriate to obtain CAFO information from existing sources, including USDA and state agencies already collecting the information.
In fall of 2012, environmental advocacy organizations submitted FOIA requests, seeking the release of information EPA already had on reporting CAFOs. In January 2013, EPA released data containing personal information about thousands of livestock and poultry farmers and ranchers in about 30 states.
At the time, the National Cattlemen’s Beef Association (NCBA) also said it was notified by EPA that CAFO information released through a FOIA request included many family farmers and ranchers who feed less than 1,000 head and were not subject to regulation under the Clean Water Act.
After the initial release, EPA attempted to recall some of the records, replacing it with a new set of data after redacting some of the personal information. However, one of the environmental advocacy groups, Food & Water Watch, said it would retain all original records. 
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Dave Natzke
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