Appeals Court Rules FEMA Must Disclose Hurricane Relief Info to Florida Newspapers

In a sweeping new precedent under the Freedom of Information Act (FOIA), the U.S. Eleventh Circuit Court of Appeals has held that the Federal Emergency Management Agency (FEMA) must release to Gannett’s and Tribune Co.’s Florida newspapers the addresses of 1.3 million people who received hurricane relief aid and federal insurance money after the 2004 hurricanes.

The 66-page decision of the appeals court overturning a ruling by a Fort Myers federal judge and agreeing with a contrary ruling by a Fort Lauderdale federal judge, said the “powerful public interest” in “whether, and how well” FEMA has met its “awesome statutory responsibility to prepare the nation for, and respond to, all national incidents, including natural disasters and terrorist attacks” strongly outweighs any privacy interest that FEMA could assert.

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 tax payer 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.

The appeal before the Eleventh Circuit involved the two separate lawsuits – the Fort Myers action filed by Gannett’s The News-Press, Pensacola News Journal and FLORIDA TODAY, and the Fort Lauderdale action filed by Tribune’s Co.’s South Florida News & Sun-Sentinel – seeking information under FOIA about FEMA’s disbursements of more than $5.3 billion dollars of public funds after the four major hurricanes that hit the state in 2004. The newspapers had filed the requests for FEMA individual assistance claim information and beneficiaries under the National Flood Insurance program. FEMA, citing FOIA’s Exemption 6, which protects disclosure of information that “would constitute a clearly unwarranted invasion of personal privacy,” refused to release the names and addresses of aid recipients.

The trial judge in Gannett’s case in Fort Myers agreed with FEMA, found the disclosure would invade the privacy of aid recipients, and that the release of “the names and addresses would shed little additional light on FEMA’s conduct.” In the second case in Fort Lauderdale brought by the Tribune Company’s Sun-Sentinel, the trial judge held that the addresses – but not the names – should be released.

Both cases were consolidated for appeal in the Eleventh Circuit. The court first clarified that FOIA rulings of this nature are subject to a more rigorous de novo review, in which appeals courts take a fresh look at the facts before a trial judge, rather than a “clearly erroneous” standard that gives more deference to the trial judge. This portion of the ruling will enhance the abilities of journalists and the public to challenge adverse FOIA rulings in federal trial courts in this circuit.

The court then concluded that the public interest in addresses of aid recipients was significant and overwhelming. It strongly disagreed with the Fort Myers judge in the Gannett case that the release of addresses of aid recipients would “tip the scale toward the privacy invasion side.” The Eleventh Circuit ruled that:

In short, the public interest in determining whether FEMA has been a proper steward of billions of tax payer dollars is undeniable and powerful. … Thus, we readily find that the addresses would further a powerful public interest.

The court then addressed and conducted the balancing test required under the FOIA privacy exemption and found that the disclosure of the addresses would not “constitute a clearly unwarranted invasion of personal privacy. The court rejected as unfounded the Fort Myers judge’s assertion that there would be a stigma attached to a recipient of this form of government aid, and that release of the addresses would create a danger of identity theft or actual theft. The appeals court also rejected the Fort Myers judge’s assertion that the Gannett newspapers’ stated intention of directly contacting aid recipients would constitute an invasion of privacy: “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.”

Finding that any asserted privacy was “dwarfed by the powerful public interest in disclosure,” the Eleventh Circuit concluded that “the appropriateness of FEMA’s response to disasters is not only precisely the kind of public interests that meets the FOIA’s core purposes of shedding light on what the government is up to; the magnitude of this public interest is potentially enormous.”

Holland & Knight represented the Gannett newspapers in this matter.