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FEMA must release disaster relief records

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NEWS MEDIA UPDATE   ·   ELEVENTH CIRCUIT   ·   Freedom of Information   ·   June 26, 2007

NEWS MEDIA UPDATE   ·   ELEVENTH CIRCUIT   ·   Freedom of Information   ·   June 26, 2007

FEMA must release disaster relief records

  • An appeals court has denied the agency’s claims of privacy protection in favor of public’s right to know under the Freedom of Information Act.

June 26, 2007  ·   A federal appeals court in Atlanta (11th Cir.) ruled Friday that the Federal Emergency Management Agency was wrong to withhold disaster relief records, including 1.3 million addresses of individual relief recipients, from news agencies requesting the information pursuant to the Freedom of Information Act.

In an often-blistering 66-page opinion, the three-judge appellate panel cited example after example of FEMA’s apparent failures throughout the 2004 hurricane season as evidence of the public’s need for the disclosure of detailed information regarding the disaster relief payouts in and around Florida. For instance, the court pointed to an inspector general report that found systemic “shortcomings” throughout the agency, and a subsequent Senate committee investigation that found that at least one of FEMA’s relief programs “allowed taxpayer dollars to be wasted.”

“The public interest in evaluating the appropriateness of FEMA’s response to disasters is not only precisely the kind of public interest that meets the FOIA’s core purpose of shedding light on what the government is up to; the magnitude of this public interest is potentially enormous,” Circuit Judge Stanley Marcus wrote.

The court’s opinion consolidated two separate trial court cases involving Florida newspapers that submitted FOIA requests seeking documents regarding FEMA’s distribution of disaster aid in the wake of four hurricanes that hit the state in a six-week period. Although the suits involved substantially the same FOIA requests to and denials by FEMA, the outcomes in the lower courts were dramatically different, necessitating the appeals court’s guidance.

In the first case, three Gannett Co.-owned Florida newspapers — The News Press in Fort Myers, the Pensacola News Journal and Florida Today in Melbourne — requested damage assessment software data, including recipient names and addresses, from a FEMA program that awarded $1.2 billion in 2004 hurricane aid for housing and “other needs” assistance. The papers also requested names and addresses from the 33,000 National Flood Insurance Program claims received by FEMA during that same time period.

The agency denied the newspapers’ FOIA requests for names and addresses, claiming that the information was protected under the federal Privacy Act and FOIA and “would constitute a clearly unwarranted invasion of personal privacy.” The newspapers sued, and a federal trial judge in Fort Myers ruled in favor of the agency and upheld the denial of access to the personally identifying information.

In the second case, the South Florida Sun-Sentinel requested the same data, including names and addresses of those receiving aid, sought by the other newspapers, as well as information from 27 other natural disasters dating back to 1998. FEMA again refused to disclose the recipients’ names and addresses, citing personal privacy, and the Sun-Sentinel filed suit.

A federal trial court in Fort Lauderdale agreed with the decision to withhold individual names, but found a “substantial and legitimate public interest” in disclosing the addresses of aid recipients. The court concluded the addresses were a necessary component to the public debate regarding FEMA’s handling of disaster assistance.

The appeals court upheld both district court decisions regarding the privacy of names of people who received federal government disaster relief money. But the appeals court sided with the newspapers and the Fort Lauderdale court in finding the public nature of addresses under FOIA.

“In light of FEMA’s awesome statutory responsibility to prepare the nation for, and respond to, all national interests, including natural disasters and terrorist attacks, there is a powerful public interest in learning whether, and how well, it has met this responsibility,” the court wrote. “Plainly, disclosure of the addresses will help the public answer this question by shedding light on whether FEMA has been a good steward of billions of taxpayer dollars in the wake of several natural disasters across the county, and we cannot find any privacy interests here that even begin to outweigh this public interest.”

Tampa attorney Rachel Fugate, who represented the Sun-Sentinel, said this is a significant and important FOIA opinion because “it is now going to provide a mechanism for oversight.”‘

“The court said to FEMA: ‘These questions are out there. These questions are unanswered. The public needs answers,'” Fugate said.

A FEMA spokeswoman said Tuesday that the agency was still reviewing the ruling.

(The News-Press v. U.S. Dep’t of Homeland Security; Sun-Sentinel Co. v. U.S. Dep’t of Homeland Security; Media Counsel: Rachel E. Fugate, Thomas & LoCicero, PL, Tampa, Fla., for the Sun-Sentinel, Charles D. Tobin, Holland & Knight LLP, Washington, D.C., for Gannett)LC

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