FEMA, Newspapers in the Eye of the Storm in FOIA Battle

With the 2006 hurricane season upon us, last year’s Hurricane Katrina and the Federal Emergency Management Agency’s (FEMA) relief efforts remain vivid in the national conscience. But even before Katrina, Florida was slammed in 2004 by four major hurricanes – Charley, Frances, Ivan and Jeanne – which impacted nearly the entire state, and that impact still lingers.

In the wake of FEMA’s response to all of these catastrophes, in one case Gannett’s newspapers The News-Press, Pensacola News Journal and FLORIDA TODAY, and in a separate case the Tribune Company’s Sun-Sentinel, filed lawsuits in federal court against FEMA under the Freedom of Information Act (FOIA). Each lawsuit was filed to obtain information regarding how federal dollars were spent in the relief effort. The federal courts have recently issued decisions – and reached opposite results, for the most part – in both cases.

FEMA spent more than $5.3 billion dollars from public funds responding to the 2004 Florida hurricanes. Congress, the Department of Homeland Security’s Inspector General and the newspapers involved in these cases have investigated FEMA’s expenditures and operations in Florida. As U.S. Senator Bill Nelson of Florida testified, the result “is not a pretty picture.” After reviewing only a small portion of FEMA’s relief payments, Congress and the Inspector General of DHS concluded that FEMA has mishandled hurricane relief efforts in Florida. The investigations revealed that FEMA paid for more than 300 funerals in Florida, although only about 125 deaths statewide were attributable to the hurricanes. FEMA paid approximately $31 million dollars to individuals in households in Miami-Dade County following hurricane Frances, which made landfall 100 miles to the north and, therefore, caused relatively little damage in that county.

Indeed, FEMA Director Michael Brown himself testified that hurricane aid was distributed in Florida “incorrectly through errors of audit entry, inspections, and, unfortunately, even through fraudulent claims.” FEMA has sought to recoup more than $27.2 million dollars from at least 6,579 aid recipients, and the government has brought prosecutions against more than a dozen aid recipients.

The newspapers initially filed FOIA requests seeking records that would show FEMA individual assistance claim information, including: (1) the name of each individual claimant; (2) the physical address where the claimed damage occurred; and (3) National Flood Insurance Protection claim information, which includes each claimant’s address. FEMA refused to release the names and addresses of aid recipients on the ground that their claim to privacy interests under FOIA exemption 6 outweighed any public interest in determining how federal relief funds had been spent. FOIA exemption 6 allows the government to refuse to turn over information if doing so would constitute a “clearly unwarranted” invasion of privacy. The two lawsuits asked the courts to consider whether disclosure of the names and addresses of aid recipients would constitute a clearly unwarranted invasion of privacy in the face of the strong public interest in the information regarding how FEMA functioned during these catastrophes.

In the case filed by Gannett newspapers, a federal judge in Fort Myers ruled that the privacy interest of aid recipients in their names and addresses outweighed any public interest in receiving that information. Despite the intense public interest, the district court determined that the newspaper’s request “would constitute a clearly unwarranted invasion of personal privacy.” The district court found that the release of “the names and addresses would shed little additional light on FEMA’s conduct.” The newspapers have appealed that decision to the United States Court of Appeals for the Eleventh Circuit. Briefing recently has been completed, and the Eleventh Circuit has scheduled oral argument for the last week of August 2006 in Jacksonville, Florida.

In the meantime, the Sun-Sentinel presented the same issues in its case before another federal judge in Fort Lauderdale. In that case, the court ruled that the addresses (but not the names) of aid recipients should be released because:

Without the addresses of the purported damaged property, it would not be possible to analyze fully the allegations of fraud and wasteful spending. Likewise, the disclosure of the addresses would allow the public to examine and debate the policies of FEMA relative to the process and payment of claims. Armed with such information, an informed citizen could seek to lobby for either legislative or administrative changes that might improve the performance of FEMA’s delegated duties.

Therefore, the court ruled, the addresses of disaster claimants should be released, and any privacy interests in the addresses were outweighed by the public interest. Additional issues remain to be resolved before that decision becomes final and appealable. Whether FEMA appeals from that decision may depend on the Eleventh Circuit’s ruling in the Gannett case.

Holland & Knight represents The News-Press, Pensacola News Journal, and Florida Today in the litigation against FEMA pending in the U.S. Court of Appeals for the Eleventh Circuit.