3
Summer 2007 Bulletin
Appeals Court Sides with Newspapers in FEMA Aid FOIA Case Agency says Ruling will not Alter Policy
The 11th Circuit U.S. Court of Appeals ruled June 22, 2007 that the Federal Emergency Management Agency (FEMA) must turn over the addresses of individuals who received disaster relief funds in response to Freedom of Information Act (FOIA) requests.
Four Florida newspapers sought the records relating to the disbursement of $1.2 billion following the disastrous 2004 hurricane season in which four storms pummeled the state in six weeks. FEMA previously released disbursement records relating to the storms, but redacted the names and addresses of the 605,500 recipients.
In an opinion by Judge Stanley Marcus, the unanimous three-judge panel ruled that FEMA incorrectly withheld the addresses, but not the names, of the fund recipients under the federal Privacy Act and exemption six of the FOIA. Taken together, the exemption and the Privacy Act require federal agencies to withhold personally identifiable information in response to FOIA requests that “would constitute a clearly unwarranted invasion of personal privacy.”
“In light of FEMA’s awesome statutory responsibility to prepare the nation for, and respond to, all national incidents, including natural disasters and terrorist attacks, there is a powerful public interest in learning whether, and how well, it has met this responsibility,” Marcus wrote. “[W]e cannot find any privacy interests here that even begin to outweigh this public interest.”
News-Press v. U.S. Department of Homeland Security, 489 F.3d 1173 (11th Cir. 2007), consolidated appeals from two federal district court rulings where opposite conclusions were reached despite similar facts.
In the first case, The (Fort Myers, Fla.) News-Press, Pensacola News Journal, and Florida Today (Brevard County, Fla.) sought records detailing the disbursement of housing assistance, “other needs” assistance, and National Flood Insurance Program payments to federally insured properties. FEMA released the records relating to the Florida disbursements, but redacted the names and addresses of the recipients. The three Gannett Co.-owned newspapers filed suit in the Federal District Court for the Middle District of Florida seeking disclosure of the redacted information.
In the second case, the Fort Lauderdale-based South Florida Sun-Sentinel filed a FOIA request for the same information and additional information relating to 27 other natural disasters. FEMA again released the information without the names and addresses of the recipients. The Sun-Sentinel filed suit in the Federal District Court for the Southern District of Florida.
The Middle District Court concluded that FEMA properly withheld the information under exemption six, but the Southern District Court ruled that FEMA correctly withheld the names but not the addresses. The Gannett newspapers appealed from the Middle District’s ruling, and FEMA appealed from the Southern District’s decision on the addresses. The Sun-Sentinel did not dispute the Southern District’s holding on release of the recipients’ names.
The court ruled that “learning whether FEMA is a good steward of (sometimes several billions of) taxpayer dollars” is within the public interest. Generally, FOIA requests may be made for any reason and the party seeking documents need not assert a public interest in them, but when the information fits within an exemption the court must balance the interest contained within the exemption against the public interest in disclosure.
Here, suspicions of fraud and mismanagement had arisen from the disbursement of $31 million to residents of Miami-Dade County for damage caused by Hurricane Frances in 2004. According to the opinion, the eye of the storm landed more than 100 miles north of the county and caused little discernible damage in the area.
Press reports eventually led to investigations by the U.S. Senate and the Office of the Inspector General for the Department of Homeland Security. According to the 11th Circuit opinion, both investigations concluded that FEMA made serious mistakes in disbursing funds in Miami-Dade County due to questionable procedures. The reports on the investigations expressed concerns about widespread waste and fraud because the questionable procedures were used in disaster relief disbursements nationwide.
The appeals court ruled that the suspicions of widespread fraud raised by the government reports placed further investigation of FEMA’s handling of tax money in the public interest. Marcus held that the only way to evaluate whether disbursements were handled properly was on an individual basis – an evaluation that would require addresses.
The court based its conclusion in part on FEMA’s own statements shortly after criticism of the disbursements began appearing in the press. FEMA argued at the time that damage cannot be inferred from the path and strength of the storm. Instead, individual evaluation on a home by home basis would be required.
After finding a clear public interest in disclosure of the addresses, the court moved to a discussion of potential personal privacy interests that could exceed the public interest. Marcus dismissed each of the justifications cited by the Middle District Court when it ruled that the privacy interest in withholding the addresses exceeded the public interest in disclosure.
The court acknowledged that release of the addresses would allow the newspapers to discover the names of the recipients using other public records, but dismissed the importance of such a link. FEMA’s previously released records were so vague, that even with names attached they contained little information worthy of protection. The likelihood that thieves would seek the information for identity theft or actual theft was quite low, said the court.
FEMA also argued that release of the addresses would subject the recipients of aid to public embarrassment. But the court reasoned that receipt of aid should not cause embarrassment because disbursements are based on the amount of damage, not the economic status of the recipient.
Lastly, FEMA had argued that disclosure of the addresses would subject aid recipients to solicitations from news organizations and commercial enterprises. The court ruled these “modest instrusion[s]” were a small price to pay for the public’s interest in disclosure.
“[T]he disclosure of the addresses serves a powerful public interest, and the privacy interests extant cannot be said even to rival this public interest, let alone exceed it . . .. On this record we do not find the balancing calculus to be particularly hard,” Marcus wrote.
However, the court ruled that FEMA correctly withheld the names of the fund recipients. Releasing the names of disbursement recipients would add little to the public interest while substantially increasing the risk of adverse effects to personal privacy. The court reasoned that attaching the names to the records would increase the risk of commercial solicitation without substantially improving the analysis of the extent of the fraud. Disclosure of the “names would therefore constitute a clearly unwarranted invasion of personal privacy,” the court held.
The News-Press reported in a June 22 story that the case should improve press access to FEMA records following national disasters, including records concerning FEMA’s response to Hurricane Katrina in 2005. “No one likes to get sued, not even the government, and you would hope at least if they would get a similar request, they would respond in a different way,” said David Greene, executive director of The First Amendment Project.
The News-Press reported August 6 that FEMA said it would release the addresses only because of the court order, and would not change its policy based on the 11th Circuit ruling. FEMA officials said that the court order only calls for the release of information related to aid recipients between 1998 and 2004. A FOIA request seeking data related to a disaster that occurred after 2004 would require a new court order. The newspaper also reported that FEMA would spend an additional $1.1 million to notify the aid recipients that their addresses would be released to the media.
“The public interest in making sure that FEMA is effectively protecting us doesn’t change from disaster to disaster, year to year, or region to region,” Charles Tobin, a lawyer for the Gannett-owned newspapers, told The News-Press. “If FEMA really thinks the court didn’t mean for its decision to apply to other disasters, the agency has learned nothing from this exercise, and that’s very unfortunate for the public because it may mean more wasteful litigation in the future, at taxpayer expense.”
– Michael Schoepf
Silha Research Assistant
University of Minnesota | College of Liberal Arts | School of Journalism and Mass Communication
