How far can state officials go in blocking public access to records showing how Maryland farms are doing at reducing their pollution of the Chesapeake Bay?
That's the question the state's top court is weighing after recent oral arguments in Annapolis. It's the latest chapter in a seven-year legal struggle pitting the Waterkeeper Alliance against the Maryland Department of Agriculture and the Maryland Farm Bureau.
Maryland farmers are required under a 1998 law to report to the state every year on how they are limiting their use of animal manure and chemicals to fertilize their crops.
The intent of the "nutrient management" law is to curtail runoff of fertilizer into nearby streams and the bay, where it contributes to the formation of "dead zones" that can harm fish, crabs and shellfish.
Under that law, the Department of Agriculture is required to shield from public disclosure any information about a specific farm's "nutrient management" report. Lawmakers granted that confidentiality in hopes it would encourage farmers to support the legislation, said Maryland Assistant Attorney General Thomas Filbert.
Because nutrient management plans are private, it is difficult to track which farms are letting the most fertilizer into the state's waterways. Though the state makes public broad information about agricultural pollution and environmental compliance, it does not single out growers.
Blocked from getting current reports, environmental groups such as the Waterkeeper Alliance are suing for access to older files. The groups say the older reports will give the public a better view of how agriculture contributes to bay pollution.
In addition, the lawsuit challenges the state's refusal to provide farms' state inspection records, which also monitor fertilizer use. The state says those are confidential under the same state law because they measure compliance with the nutrient management plan.
Tarah Heinzen, lawyer for the Waterkeeper Alliance, urged the Court of Appeals on May 5 to limit how much information state officials can withhold.
But Maggie Witherup, a lawyer for the Farm Bureau, argued that even the old plans — and the information in them — should be withheld if they could be linked to a current farm operation. What is in the plans can be disclosed, she said, as long as name, address and other identifying information are redacted.