Farm groups urge identity protection
ANNAPOLIS, Md. (March 13, 2018) — After a seven-year court battle, a push to have more information released from farmer’s nutrient management plans has moved into the Maryland legislature.
House bill 1221 aims to change current law to protect “personal information” rather than any information that could lead to the identity of the farmer for whom the plan was written.
According to the bill, personal information that would be protected, as defined in the state’s Public Information Act, includes name, address, identification numbers, medical or disability information, photograph or computer-generated image, Social Security number and telephone number.
It would not protect a farmer’s zip code, and regarding nutrient management plan summaries, it would not protect the number of acres farmed, type of operation, sources of nutrients applied, amount of manure generated, exported or imported and if there is manure storage on the farm.
At the bill’s hearing in the House Environment and Transportation Committee last month, proponents said the bill follows a recommendation from Maryland Attorney General report on implementing the state’s Public Information Act, and would decrease the expense involved in replying to public information requests for nutrient management plan summaries.
It would also make more data available on fertilizer use for studying water quality issues, proponents said.
“Looking at that data in the plans and then looking at the corresponding water quality monitoring helps us fill in the holes we have in the picture right now,” said Besty Nicholas, executive director of Waterkeepers Chesapeake.
Opponents said merely protecting the personal information of the farmer would not be enough to protect his or her identity, and that would lead to undue scrutiny and the release of proprietary information to farmers’ businesses.
“They are concerned about being the next Hudson family, being the ones brought to court over the fact that somebody thinks they used too many nutrients of one type or another or maybe they improperly applied some sort of fertilizer,” said Valerie Connelly, executive director of Maryland Farm Bureau, referring to a lawsuit brought by an environmental group against a Lower Shore poultry farm for alleged violations of the Clean Water Act.
The three year-long case ended with the Hudsons found not to be in violation of pollution laws.
“Individual farmers cannot afford to go to court and spend $300,000 on a case where they’re found to be compliant with the law,” Connelly said.
Nicholas told the committee while farms that fall under federal regulation could be sued, for farms regulated only under state law “there is no citizen right to sue.”
There also was disagreement between proponents and opponents on whether the nutrient plans and their summaries were proprietary business documents.
Lindsay Thompson, executive director of the Maryland Grain Producers Association said the bill would make available a farmer’s past yields, yield goals, soil test results and fertilizer application rates, all things that farmers use in operating their business.
“I would argue that anybody who thinks a nutrient management plan is not a business plan doesn’t know much about farming,” said Thompson. “This is very much a business plan because it tells you how much nutrients you’re going to apply and what your yields are and that’s your margins right there.”
On the Eastern Shore, Thompson said about 65 percent of the land grain farmers manage is rented land and the availability of nutrient management plans would add more pressure to farmers keeping their leased acres.
The fight over releasing nutrient management data goes back to 2007 when Waterkeeper Alliance filed Public Information Act requests with the Maryland Department of Agriculture 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 could lead to the identity of 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 ruled the Maryland Department of Agriculture must redact any information on any document related to nutrient management plans that would identify an individual farmer.
Waterkeeper Alliance appealed the decision to the Court of Special Appeals and then to the Court of Appeals. The Court of Appeals vacated the lower appellate court’s decision and remanded it back to the Circuit Court for any further proceedings.
“The end result is that a very simple request for information to Maryland Department of Agriculture resulted in a very extensive legal review and redaction process costing thousands of dollars that the information seeker was responsible for paying,” Waterkeepers’ Nicholas told the committee. “This is opposite of the intent of Maryland Public Information law which is defined very specifically by Maryland as favoring access to public records.”
Nicholas said at that point Waterkeeper Alliance chose not to retry the case.
“We decided we were better off to seek a remedy here,” she said.
In December 2017, Maryland Attorney General Brian Frosh’s report on the state Public Information Act recommend the legislature clarify what could and could not be released in a PIA request regarding nutrient management plans.
One suggestion from the report was to use “personal information” which is already defined in state law as the withholding requirement.
“Name, address, phone number, and social security number — if one is provided in the plan — would be the obvious choices, but
there might be other identifying information that the Legislature believes should be withheld,” the report said. “Ultimately, we recommend only that the General Assembly clarify the provision so as to avoid further unnecessary expenditure of public resources, not that it clarify it in any particular way.”
Connelly cited to the passage of the Maryland Water Quality Improvement Act of 1998, a contentious point in Maryland agriculture that established mandatory nutrient management plans for farmers. The agreement then was in return for accepting the mandated program — the first of its kind in the country — MDA would hold the plans and their summaries and the farmer’s identity would be protected.
“We’re saying identity is the important word for the farm community because it protects a little bit more than personal information as it’s defined in the law,” Connelly said.
“It permeates law that has to do with agriculture because it is an important concept that the assembly has agreed over the years should be protected.
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