Wednesday 22 May 2019

Transparency Can Lead to Clean Water & Lower Costs

Marylanders expect transparent government. This transparency is essential across all sectors of government and industry, including agricultural waste management. Without access to this information, local communities and citizens cannot be assured that these operations are not polluting the water that Marylanders rely on for drinking, swimming and fishing.

That’s why Waterkeepers Chesapeake along with Maryland Clean Agriculture Coalition (MCAC) are supporting legislation to address a significant loophole in current law that makes it impossible to obtain access to public records through a Public Information Act request if those records are held by agricultural operations. Maryland’s agriculture industry is afforded a level of secrecy that no other industry in our state enjoys, despite being heavily subsidized. Closing this loophole is critical to advancing transparency in the state, as well as to cleaning up the Chesapeake Bay.

As currently written, Agric. § 8-801.1, a provision of the Maryland Water Quality Improvement Act, requires most farms to follow Nutrient Management Plans (NMPs) and annually submit a plan summary to the Maryland Department of Agriculture (MDA). These plans are not written by the farmers themselves, but with the support of professional planners who are paid for with our public dollars.

Current law requires MDA to “maintain a copy of each summary for 3 years in a manner that protects the identity of the individual for whom the nutrient management plan was prepared.” Although this provision seems to only affect MDA’s disclosure of identifying information, such as the owner’s name and unique plan ID number, from the plan summaries themselves, recent court decisions have dramatically expanded the scope of this exemption. Specifically, although agencies are required to interpret exemptions narrowly, Maryland courts have read this provision as requiring MDA to redact information from any related documents if information in other records (such as publicly funded cost-share documents or pollution-related enforcement records) could potentially create a linkage to a specific plan summary.

Protecting the identities of thousands of nutrient management plan holders poses real obstacles to public oversight and transparency. MDA is tasked with ensuring that these operators comply with their plans and use public resources to do so. Access to information about the operation enables citizens to track public funding of conservation projects, compliance with NMPs to control pollution and the effectiveness of MDA’s oversight program.

In its recent report on Maryland’s Public Information Act, the Office of the Attorney General flags the current provision in the Agriculture Article that “protects the identity of the individual for whom the nutrient management plan was prepared.” The Attorney General notes that this “one-sentence provision was the subject of seven years of litigation arising out of the Department of Agriculture’s response to PIA requests from various environmental organizations.”

The report recommends “that § 8-801.1 of the Agriculture Article be amended to specify what identifying information should be withheld when nutrient management plans are provided in response to a PIA request.”

HB 1221: Protection of Personal Information in NMPs Act will do just that. By specifying what types of “personal information” are protected under NMPs in Maryland, the bill will bring NMPs in line with other information that’s available through Public Information Act requests. The current confusion around the type of personal information protected under NMPs has increased the cost to both the Maryland Department of Agriculture and information seekers alike. By specifying exactly what is protected, it prevents a complex and costly analysis in the case of each Public Information Act request.

Polling data shows that more than three-quarters of respondents supported eliminating the exemption that makes agricultural pollution control plans secret. A 2015 Opinionworks poll found that 77 percent would support legislation to make agricultural pollution control plans available to the public.

NMPs contain vital information for the protection of the Maryland’s local waters and streams. Having access to these plans will ensure the success of Maryland’s water quality standards and the Chesapeake Bay TMDL. Increased government transparency around NMPs also ensures that any related tax dollars are serving their desired function of reducing pollution in our waterways.

Read Waterkeepers Chesapeake's testimony here. Read MCAC’s testimony on HB 1221 here.

— Betsy Nicholas, Executive Director of Waterkeepers Chesapeake, MCAC co-chair