By Sarah Everhart
In Maryland the review of public records by any public body in the State is dictated by the Maryland Public Information Act. Pursuant to the Agriculture Article of the Maryland Code, Nutrient Management Plans are currently required to be submitted by almost all farmers in Maryland and contain detailed information on the amount, placement, timing, and application of animal waste, commercial fertilizer, sludge, or other plant nutrients to prevent pollution and maintain productivity. A summary of each Nutrient Management Plan is to be filed with the Maryland Department of Agriculture (MDA) and retained for a period of three (3) years in a “manner that protects the identity of the individual from whom the nutrient management plan was prepared.”
On April 13, 2015, in the last few hours of the General Assembly’s 2015 session, the legislature passed a bill (SB 695) to change the Maryland Public Information Act. The major changes to the Public Information Act were the creation of a five-member compliance board to address fee disputes, and the establishment of an ombudsman position to handle disagreements between government agencies and members of the public attempting to access records. The bill originally had language meant to change Sections 8-801.1-8-1010 of the Agriculture Article of the Maryland Code to define the scope of what constitutes personal information in a Nutrient Management Plan summary. The bill initially defined the personal information that required redaction from a Nutrient Management Plan summary as the applicant’s “name, telephone number, personal email address and social security number.” A Senate committee removed the proposed language from the bill. Opponents of the proposed language said the proposed definition of personal information would have made it easy to identify a farm’s address and the summary would reveal private business information. The bill, as amended, is now on its way to Governor Hogan for his signature and will become effective October 1, 2015.
As ALEI described in a post last July, there was recent litigation between the Waterkeeper Alliance and MDA which reached the highest court in Maryland, the Court of Appeals, on the issue of whether the personal information in Nutrient Management Plans can be withheld by MDA beyond the initial three-year requirement. The lower courts, the Circuit Court of Anne Arundel County, and the Court of Specials Appeals (the initial appellate court of Maryland), both ruled that Nutrient Management Plans, regardless of the year of issue, are public records subject to review, but before disclosure the Plans must be redacted to erase names and all other identifying information to protect the applicant. The case was appealed to the Court of Appeals but the Court failed to rule on the confidentiality issue because of a jurisdictional defect with the case and ultimately remanded the case.
Currently, Nutrient Management Plan summaries in Maryland are public records subject to public review as long as all identifying information is redacted, unless a court issues a new interpretative ruling on the existing law or the law is amended by the 2016 General Assembly.