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Court says pygmy owl habitat disclosures do not invade privacy

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  1. Freedom of Information

    NMU         D.C. CIRCUIT         Freedom of Information         Nov 6, 2002    

Court says pygmy owl habitat disclosures do not invade privacy

  • A federal appeals panel ruled unanimously Nov. 5 that public disclosure of government-designated areas to protect an endangered bird does not violate the privacy of landowners in those areas.

The chance that lawless birders, learning the location of the nesting sites of an endangered pygmy owl, will trespass on private lands for a glimpse of the tiny creature, constitutes only a “minimal” privacy interest of the landowners. And that interest is outweighed by the public’s interest in knowing what the U.S. Fish and Wildlife Service is doing to protect the endangered owl, a federal appeals panel ruled Nov. 5.

The U.S. Court of Appeals in Washington, D.C., ruled unanimously that public disclosure of the agency’s site-specific determinations of “critical habitat” of the cactus ferruginous pygmy owl is important if the public is to monitor how the agency makes the determinations. It ruled that the National Association of Home Builders, which sought the information through the Freedom of Information Act, is entitled to disclosure.

Washington, D.C. attorney Lawrence Liebesman said his client has a strong interest in seeing that decisions about critical habitat for endangered species are fair and effective. The designation requires heightened review and scrutiny of activities on private landowners’ property, he said.

The Endangered Species Act requires that the government consider economic and other impacts in designating critical habitat. The court noted that the public cannot give the government information on impacts if it does not know what the designations are.

Responding to the builders’ lawsuit for disclosure of the nesting of the ferruginous pygmy owl in Arizona, the appeals panel rejected the government’s contention that the chance of trespass on private lands by birdwatchers would constitute a clearly unwarranted intrusion on personal privacy.

The panel reversed a decision by the federal district court in Washington, D.C. that the locations were covered by the FOI Act’s privacy exemption. The lower court had recognized that the public has an interest in how the government protects the owl, but said that interest is satisfied by disclosure of the method for designating protected habitat areas.

(National Association of Home Builders v. Norton; Attorneys: Rafe Petersen and Lawrence Liebesman, Holland and Knight, Washington, D.C.) RD

© 2002 The Reporters Committee for Freedom of the Press

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