Judge in FOI suit says government should take ‘the extra step’

Judge in FOI suit says government should take ‘the extra step’

04/08/96

WASHINGTON, D.C.–A federal District Court judge in early March chided the Department of Agriculture for not trying to help a public interest group get records under the Freedom of Information Act, and ordered the agency to pay the Chesapeake Bay Foundation’s attorneys fees.

Judge Stanley Sporkin said “It is not asking our government too much to go the extra step to help its citizens. Too often our government agencies take the indefensible position that they will do only as little as possible.”

Judge Sporkin in March 1990 had helped settle an FOI suit brought by the environmental public interest group for records of pesticide use by Maryland agencies, records that had been collected by the Department of Agriculture.

The department claimed that the Food Security Act protects the name of a “person” who provides pesticide information and the information itself unless it is in aggregate or statistical form. However, Maryland agencies had indicated early on that they were willing to waive those protections.

The Chesapeake Bay Foundation sought the pesticide use information in 1988 and received it after the settlement agreement in 1990.

The foundation then sought attorneys fees saying it had “substantially prevailed” in its lawsuit. Judge Sporkin awarded the $44,373 in attorneys fees, saying “the entire public benefits when it has information regarding the use or nonuse of potentially harmful chemicals.”

But the department appealed, saying its original denial had been “reasonable” because of the confidentiality provisions of the Food Security Act.

In December 1993, the U.S. Court of Appeals in Washington, D.C. remanded the case, ruling that before the lower court could order payment of attorneys’ fees, it had to determine that the government’s initial withholding had been illegal. The appeals panel rejected trial court findings that the government had been obdurate and said the department’s denial had been reasonable under the Food Security Act.

But Judge Sporkin found the department’s denial illegal nonetheless. The Food Security Act did not protect aggregate or statistical data, the form in which the information was provided, he said. Furthermore it did not identify any “person,” a word which does not commonly encompass public agencies such as those which had provided the data. He noted that the Food Security Act was intended to protect private suppliers of information from competitive and commercial misuse of the data they provided, not state agencies.

Judge Sporkin said the resources expended in the case were excessive. There were at least eight hearings before the lower court and one before the court of appeals involving at least 18 orders and two memorandum opinions, he noted. “All of this effort could have been avoided if the government simply had tried to accommodate the public interest in the first instance,” he said. (Chesapeake Bay Foundation v. Department of Agriculture; FOI requester’s counsel: Nancy Crisman, Washington, D.C.)