Court blocks release of farm compliance data

An Eastern Shore judge blocked the state Tuesday from giving an environmental group information about farmers' compliance with a state law meant to curb polluted farm runoff into the Chesapeake Bay.

Worcester County Circuit Judge Thomas C. Groton III granted a temporary restraining order against the release of the information at the request of the Maryland Farm Bureau, which had gone to court Monday contending that state agriculture officials were about to give data illegally to the University of Maryland environmental law clinic.

The court case is the latest in a series of clashes between the farm group and the university's law clinic, which is representing the Assateague Coastkeeper, a Shore environmental group long critical of the state's enforcement of pollution laws on farms. The clinic was threatened earlier this year with loss of state funding for helping bring a lawsuit accusing a Worcester County farm couple and Salisbury-based Perdue, the nation's fifth-largest poultry producer, of polluting a local waterway.

The Worcester judge's ruling sparked an angry reaction from the Waterkeeper Alliance, the national umbrella organization for the Worcester-based Coastkeeper group. Scott Edwards, the alliance's legal director, contended that state agriculture officials had worked with the farm bureau to withhold information the group has been seeking since April about whether farmers are following the state's nutrient-management law.

"It's nothing short of collusion," Edwards said, noting that state Agriculture Secretary Earl "Buddy" Hance, a Calvert County farmer, is a former president of the farm bureau. "Here we are five months after [the original request], and they haven't turned over a single document here. It's absurd, the lack of transparency."

Hance did notify the farm bureau Aug. 25 that his agency was about to fulfill a public-records request filed by the law clinic for the Coastkeeper, acknowledged Royden Powell, an assistant agriculture secretary. But Powell said the state's public information law allows agencies to notify subjects of records requests. He said Hance contacted the farm bureau rather than individual farmers because the industry group represents their interests.

State officials say they agree with the environmental group that information about farmers' compliance with the law is a matter of public record. Powell said he has routinely replied to requests from members of the public wanting to know if an individual farmer has submitted a required "nutrient-management" plan with the state. Until now, he said, no one has complained.

But farm group officials insist the 1998 nutrient-management law requiring farmers to limit their use of fertilizer on crops also guaranteed that all identifying information about individual farmers would be kept confidential.

"You can say … how many are in compliance without having to release the name of every individual farmer, whether they're in compliance or not in compliance," said Patricia Langenfelder, president of the farm bureau. She questioned why any "third party" should be checking up on the state's oversight of farms and said her real concern is that the clinic might be looking to file more lawsuits against individual farmers for allegedly violating pollution laws.

The lawsuit brought by the Waterkeeper Alliance in March accusing the Hudson farm and Perdue of violating the federal Clean Water Act is pending in federal court. The clinic's representation of the Waterkeeper group in that case angered Shore lawmakers in Annapolis, who threatened to cut the school's funding unless it furnished information about its clients and how it chose them. The funding threat was later dropped, but the school still must report to lawmakers about its clinics.

The 1998 nutrient-management law requires all farmers to prepare plans spelling out how much chemical fertilizer and animal manure they put on their fields to raise crops. Farm runoff is a major source of nitrogen and phosphorus fouling the bay.

In passing the law, though, lawmakers agreed to the farm lobby's appeal to keep the farmers' plans from being open to public inspection.

Starting in 2007, the clinic-represented Waterkeeper group has fought a lengthy legal battle, first with the state, then the farm bureau, over whether the state's public information act required release of farmers' nutrient-management plans. An Anne Arundel County Circuit Court judge ruled in 2009 that the plans themselves were public documents, but that because of the nutrient-management law's confidentiality provision, the farmers' names and addresses in the plans must be redacted, or blocked out, before release.

At issue is whether government records related to farmers' plans also must be kept confidential. Jane Barrett, the law clinic's director, said information sought by her law students included reports on state inspections of farms and any problems found. She said the clinic wanted to see if the department's records supported its public statistics about farmers' compliance with the nutrient management law. Powell, the assistant agriculture secretary, said officials think that that data is public under state law. But the farm bureau contends in its court papers that by law, any nutrient-management plan information kept by the state that would identify individual farmers must be kept from the public.

State officials have said that 99 percent of all farmers have filed the required nutrient-management plans, but they estimate that about 70 percent are in compliance with the law. Some have not kept their plans up to date or might not be following them, officials have said.

Barrett said the clinic asked the state agency to provide the data to back up its statistics about compliance.

The state's public information law requires an agency to grant or deny a request to review its records within 30 days, unless more time is mutually agreed upon. Powell, the assistant agriculture secretary, said the group's original request was "overwhelming" and it took some time to get them to narrow down what information they were asking for.

After granting the restraining order, Judge Groton scheduled a hearing on the dispute Sept. 24 before a recently retired judge, Theodore R. Eschenburg.

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