Florida Federal Court: FEMA Must Cough Up Records Now
 
September 26, 2007
 
Charles D. "Chuck" Tobin- Washington

A federal judge, following weeks of delay and propaganda by the government, recently gave the Federal Emergency Management Agency (FEMA) just 72 hours to begin producing records under the Freedom of Information Act (FOIA) to three Gannett newspapers in Florida.

At the conclusion of a late Friday, August 24, 2007, expedited hearing in Fort Myers, Judge John Steele, of the U.S. District Court for the Middle District of Florida, ordered the agency to place in the newspapers’ hands – by the following Monday, August 27 – the addresses of the individual Florida households that received FEMA aid following the 2004 hurricane disasters in the state. The judge also ruled that by September 10, FEMA must release the addresses of recipients of flood insurance administered by the agency.

Judge Steele’s ruling comes on the heels of the U.S. Eleventh Circuit Court of Appeals’ decision in June in favor of the Gannett newspapers. The appeals court reversed Judge Steele’s 2005 summary judgment decision that denied, on privacy grounds, the Gannett newspapers’ FOIA requests for the addresses. Citing Congressional and Executive Branch investigations of fraud in the delivery of aid in Florida, the Eleventh Circuit 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 country, and we cannot find any privacy interests here that even begin to outweigh this public interest.

FEMA announced on August 6 that it would not pursue further appeals from the Eleventh Circuit panel’s ruling. The agency, however, immediately began a campaign of press releases and letters that:

• Falsely told 1.2 million aid recipients that the Florida newspapers had asked for their social security numbers. The newspapers had not done so.
  
• Misled aid recipients in California and North Carolina into believing that the Gannett newspapers had asked for information about them. The Gannett newspapers had not asked for any information outside of Florida. Another newspaper not involved in the Fort Myers litigation had made the broader request.
  
• Blamed the Eleventh Circuit for finding that an aid recipient’s address is a public record, and suggested it will not take the court’s ruling into account in future FOIA requests: “[T]he agency will continue to protect the names and addresses of disaster victims in the future under both the Privacy Act and the personal privacy exemption to the Freedom of Information Act.”
  
• Told the Gannett newspapers that they would have to wait to receive the information until the Eleventh Circuit returned jurisdiction to Judge Steele’s court. FEMA rescinded that decision when the Gannett newspapers protested.

FEMA’s press releases had set out a timetable for the documents’ disclosures, but when the agency failed to meet its first self-imposed deadline, the Gannett newspapers asked Judge Steele to enter a new judgment and force the agency’s immediate compliance.

At the hearing, the agency asked the district court to give it until mid-October to release the flood-insurance records, on grounds that it had not yet notified people of that release. The Gannett newspapers objected, arguing that FOIA does not permit delays for notifications, and citing FEMA’s misstatements in the letters to other aid recipients. After closely questioning FEMA’s counsel on the logistics involved in producing the insurance records, Judge Steele gave the agency less than three weeks to comply.

The Gannett newspapers, which are The News-Press, FLORIDA TODAY and Pensacola News Journal, have brought motions for appellate and district court-level attorney’s fees.

Holland & Knight represents the Gannett newspapers in this litigation.

For more information, email Charles D. Tobin at Charles.Tobin@hklaw.com or call toll free, 1-888-688-8500.