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Environmental Law

: ESA Blawg

FWS already abandoned e-mail; is it intentionally discouraging public comment too, and ignoring DOJ's advice?

By Keith Rizzardi

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As a regular reader of the Federal Register, I have noted an ongoing error in the "privacy" provisions of the FWS notices. Could it be that FWS is discouraging public comments on its proposed Endangered Species Act actions by warning -- threatening? -- that it will disclose the home addresses of people who submit comments?

For example, in a recent Federal Register notice, announcing status reviews on 11 species, FWS states as follows: Our practice is to make information, including names and home addresses of respondents, available for public review. Before including your address, telephone number, e-mail address, or other personal identifying information in your response, you should be aware that your entire submission—including your personal identifying information— may be made publicly available at any time. While you can ask us in your submission to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. 73 Fed. Reg. 58262 (Oct. 6, 2008). A recently proposed rule on the piping plover included similar language. 73 Fed. Reg. 56861 (Sept. 30, 2008). NOAA -- the sister agency to FWS also charged with ESA implementation -- offers a somewhat tamer version of this privacy "warning" in its notices. See, e.g. 73 Fed. Reg. 55051 (Sept. 24, 2008)(Middle Columbia River steelhead recovery plan, stating that "Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.")

As a general rule, there seems to be no reason for FWS to adopt a routine practice of making public the home addresses of citizens. In fact, the FWS statements are particularly suspect when compared with the Department of Justice's Freedom of Information Act manual, which explains that FOIA's Exemption 6 permits the government to withhold all information about individuals in "personnel and medical files and similar files" when the disclosure of such information "would constitute a clearly unwarranted invasion of personal privacy." This language has been broadly interpreted by both DOJ and the Supreme Court to protect personal privacy, including the home addresses of citizens who write to the federal government.

The worst part of the FWS statement is the suggestion that FWS "cannot guarantee that we will be able" to protect home addresses even when a citizen so requests. FWS should read pages 559-560 of the Department of Justice FOIA manual, which states as follows: "The majority of courts to have considered the issue have held that individuals who write to the government expressing personal opinions generally do so with some expectation of confidentiality unless they are advised to the contrary in advance; their identities, but not necessarily the substance of their letters, ordinarily should be withheld." Furthermore, the DOJ FOIA manual at footnote 81, cites important caselaw, including the following: Save Our Springs Alliance v. Babbitt, No. A-97-CA-259, slip op. at 7-8 (W.D. Tex. Nov. 19, 1997) (concluding that release of home addresses and telephone numbers of government correspondents would not shed light on whether agency improperly considered writers' comments); Voinche v. FBI, 940 F. Supp. 323, 329-30 (D.D.C. 1996) ("There is no reason to believe that the public will obtain a better understanding of the workings of various agencies by learning the identities of . . . private citizens who wrote to government officialsquot;), aff'd per curiam, No. 96-5304, 1997 WL 411685 (D.C. Cir. June 19, 1997) Holy Spirit Ass'n v. U.S. Dep't of State, 526 F. Supp. 1022, 1032-34 (S.D.N.Y. 1981) (finding that "strong public interest in encouraging citizens to communicate their concerns regarding their communities" is fostered by protecting identities of writers).

Perhaps FWS continues to use the cautionary "we may disclose your home address" language because it has used the internet to receive public comments. See, e.g. the public comment and privacy procedures on Regulations.gov. However, as a matter of common sense, e-rulemaking should not necessitate the collection of home addresses at all from citizens commenting on Endangered Species Act implementation; even if e-rulemaking did justify this approach, FWS abandoned the electronic rulemaking process. The same Federal Register notice quoted above specifically states that people should "mail or hand-deliver information on the following species to the U.S. Fish and Wildlife Service, Field Supervisor, at the corresponding address below..."

Giving the FWS staff and DOI lawyers, as a whole, the benefit of the doubt, I suspect that many folks have not even noticed this problem. Staffers working on proposed rules are simply cutting and pasting prior Federal Register notices that were improperly and erroneously edited. But somewhere along the line, somebody either made a serious legal error -- or worse. FWS should correct the mistake.

Full post as published by ESA Blawg on October 07, 2008 (boomark / email).