NFIB Scores a Win for Small Business Privacy Rights

Date: September 22, 2016 Last Edit: September 23, 2016

The Eighth Circuit Federal Court of Appeals just recently handed down a hugely important decision that has received far less attention than it deserves. The case concerned a series of Freedom of Information Act (FOIA) requests through which radical environmental activists were seeking to obtain personal information about ranchers and farmers—including GPS coordinates to their home address, email addresses, personal phone numbers, and other sensitive information from which one might infer the state of their personal finances. The Environmental Protection Agency (EPA) initially began to release the requested information in batches, but was then hit with a lawsuit seeking to block further disclosures and to compel EPA to order the activists to return information that had been illegally released. 

We filed last spring, arguing that the federal Privacy Act prohibits the disclosure of sensitive information about small business owners. Remarkably EPA and her allies argued small business owners utterly lack standing to challenge disclosure of sensitive records, which federal officers may compile on businesses. Our brief specifically took issue with that rationale—emphatically making the case that small business owners retain personal privacy protections, notwithstanding their choice to engage in economic activity.  And the good news is that the Eighth Circuit agreed with us—holding that affected farmers and ranchers can assert a privacy interest, so as to prohibit disclosure of sensitive information. Also the mere fact that contested information might otherwise be obtained through an exhaustive search of state and local records does not mean that business owners are without right to object to federal compilation and release of those materials. 

In this case, we were specifically worried that the information would be used by activists to harass and intimidate small business ranchers and farmers. But on a more fundamental level, we thought it important to clarify that small business owners—in all industries—have a right under federal law to object to federal agencies releasing information that may invade their own personal privacy interests. In a statement on the heels of the decision, Karen Harned, Executive Director of the NFIB Small Business Legal Center, said: “The idea that EPA has the authority to release the private home addresses, phone numbers, and email addresses of farmers and ranchers is preposterous. The EPA violated the privacy and trust of American farmers and their families. Today, the Court rightly upheld federal privacy laws and protected farmers and ranchers from potentially dangerous exposures.”

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