Waterkeeper Alliance still arguing appeal

Managing Editor

ANNAPOLIS, Md. (May 13, 2014) — Continuing a six-year court battle over farmers’ nutrient management plan information, Waterkeeper Alliance last week argued an appeal last week in Maryland’s highest court to gain access to data farmers want to keep private.
In the Maryland Court of Appeals, Tarah Heinzen, attorney for Waterkeeper Alliance, said the state’s Court of Special Appeals ruling last May was too broad in applying confidentiality protections to any information related to nutrient management plans that would reveal the identity of an individual farmer.
With a narrow reading of the plain language of the law, only plan summaries should be exempt for three years or less, Heinzen said, leaving other documents, including audit reports, enforcement actions and entire nutrient management plans available for public access.
“The statute has a presumption of disclosure and we need some certainty and a clear standard to which documents the public has a right to access unredacted,” Heinzen told the court.
Attorneys for the Maryland Department of Agriculture and Maryland Farm Bureau, both respondents in the appeal, told the court that an interpretation that narrow would not make any sense since it would grant access to the information in the summary since the summaries are based on the entire plans.
“The statute’s confidentiality requirement would be illusory, meaningless, if the department is required to disclose plan information because it’s in the actual plan as opposed to the plan summary or because the department copied information taken directly from the plan onto a separate piece of paper such as an audit form,” said Assistant Attorney General Thomas Filbert, representing MDA. “Plan information is plan information.”
Margaret Witherup, representing Farm Bureau, said one instance where Farm Bureau and MDA differ is in the length of protection. Filbert said the information would lose its confidentiality protections when the plan expires after three years.
Witherup said in many cases, information from outdated plans could easily identify farmers that have current plans.
“... What the lower courts held is that for information that is older than three years old, if that information could lead to the identification of a farmer with a nutrient management plan that is less than three years old — in that narrow instance — that is when the identifying information should be protected,” Witherup said.
Witherup told the court the three-year time frame is related to the validity of soil test data in the plans not to confidentiality requirements, and cited examples of other MDA documents that are protected but have no time frame for protection such as animal health documents or soil and water conservation plans.
Following the appeals hearing last week, Waterkeeper and other environmental groups issued a news release stating that regardless of the Court of Appeals decision, they will campaign for legislative changes for more public oversight of the state’s nutrient management program.
“This case shows that Maryland has a real problem with allowing public access to information,” Jeff Holland, West Rhode riverkeeper said in a written statement. “In order for the public to have oversight of the Department of Agriculture’s farm pollution program, we’re going to have to get the legislature to stand up to the Farm Bureau and change the law.”
The fight over releasing nutrient management data goes back to 2007 when Waterkeeper Alliance filed Public Information Act requests with MDA for nutrient management information and Maryland Farm Bureau stepped in to block the release of information. In 2009, a Circuit Court judge ordered MDA to disclose nutrient management information but redact any information from any document related to a farmer’s nutrient management plan that would identify the farmer or farm operation.
After another PIA request from Assateague Coastkeeper in 2010 for information including inspection, compliance and enforcement actions, Farm Bureau again filed a complaint in Circuit Court to keep MDA from releasing the data.
The following year, the Circuit Court granted Farm Bureau’s complaint and MDA must redact any information on any document related to nutrient management plans that would identify an individual farmer. Waterkeeper Alliance appealed the decision which was upheld by the Court of Special Appeals last May.