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Fall 2008 Bulletin
FOIA and Access
City Officials Refuse to Release Address-Specific Flood Damage Data
City officials in Cedar Rapids, Iowa, have refused to release information about federal payments made to homeowners whose dwellings were damaged by floods during the summer of 2008, according to a story in the Aug. 31, 2008 Cedar Rapids Gazette.
The Gazette asked Cedar Rapids City Hall to provide address-by-address information about damage assessments of the 850 homes in the city’s flood plain because “a finding of substantial damage — at least 50 percent of a home’s value — can qualify some homeowners for more insurance money and may help others without insurance make a better case to the city for a buyout.”
Parts of Cedar Rapids were heavily damaged in the floods, and the state of Iowa is set to receive approximately $85 million in federal disaster aid, according to a September 11 story in The Gazette.
According to the August 31 Gazette story, city officials said that the data was the property of the Federal Emergency Management Agency (FEMA) and not the city, even though it was mailed to homeowners by the city’s Code Enforcement Division. All subsequent modifications to FEMA’s findings were also handled by the city.
Assistant City Attorney Elizabeth Jacobi denied the newspaper’s request under the federal Freedom of Information Act (FOIA), 5 U.S.C. § 552, for release of address-by-address damage assessments, citing the Federal Privacy Act of 1974.
The Privacy Act, 5 U.S.C. § 552a, states in part that its purpose is “to provide certain safeguards for an individual against an invasion of personal privacy by requiring Federal agencies, except as otherwise provided by law, to … collect, maintain, use, or disseminate any record of identifiable personal information in a manner that assures that such action is for a necessary and lawful purpose, that the information is current and accurate for its intended use, and that adequate safeguards are provided to prevent misuse of such information.”
In its FOIA request, The Gazette cited News-Press v. U.S. Department of Homeland Security, 489 F.3d 1173 (11th Cir. 2007), a case in which FEMA was ordered to release address-by-address information about federal relief provided to homeowners after several hurricanes caused widespread damage in Florida in 2004. (See “Appeals Court Sides with Newspapers in FEMA Aid FOIA Case” in the Summer 2007 issue of the Silha Bulletin.)
The 11th Circuit ruling held that FEMA had failed to meet its “heavy burden” of proving that the release of address-by-address relief information was a “clearly unwarranted invasion of personal privacy.” The opinion cited several of FEMA’s purported failures during the 2004 hurricane season as one of the reasons for keeping the records open.
“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,” Judge Stanley Marcus wrote.
“Plainly, disclosure of addresses will help the public answer this question by shedding light on whether FEMA has been a good steward of billions of taxpayer dollars,” Marcus continued. “[W]e cannot find any privacy interests here that even begin to outweigh this public interest.”
The court did allow the agency to withhold individual names of FEMA relief recipients, saying it would add only nominal public benefit and citing exemption 6 to the FOIA, which prohibits the release of “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.”
The opinion acknowledged that releasing information by address would make individual homeowners accessible to the media. But Marcus noted that “individuals are under no obligation to speak to reporters, and on balance, the modest annoyance of a ‘no comment’ is simply the price we pay for living in a society marked by freedom of information laws, freedom of the press, and publicly-funded disaster assistance.”
FEMA made clear immediately after the Florida case that the court’s ruling would not change its policies. FEMA officials told the Florida newspapers that brought the lawsuit that they would only release address-by-address information for aid paid between 1998 and 2004. Information about aid paid after 2004 would require another court order.
Attorneys involved in the 2007 case said that FEMA’s refusal to change its policy ignored the basis of the court’s ruling. “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,” said Charles Tobin, a lawyer for the Florida newspapers in a June 22, 2007 Fort Myers, Fla. News-Press story. “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.”
If The Gazette files suit to force the city of Cedar Rapids and FEMA to turn over address specific information, federal courts in Iowa could ignore the 11th Circuit precedent because Iowa is in the 8th Circuit. Circuit level opinions are only binding on federal courts in that circuit.
A September 3 editorial in The Gazette argued, “Yes, some things about a person’s life should be private. But when taxpayer money is involved, it comes with strings attached. One of those conditions … is the public’s right to know how its money is disbursed.”
“It would be a flagrant waste of taxpayer money for the government to wage more legal battles against such Freedom of Information requests – money that would be better used to assist individuals struggling mightily to rebuild their homes and lives,” the editorial said.
The Gazette reported that officials with the city attorney’s office referred questions to City Manager Jim Prosser, who said he wanted to review the matter before commenting.
– Jacob Parsley
Silha Research Assistant
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