In Cmty. Ass'n for Restoration of the Env't v. Dep't of Ecology, 149 Wn. App. 830, 205 P.3d 950, 961 (Wash. Ct. App. 2009), the Washington Court of Appeals, Division Two, determined whether the Department of Ecology ("the Department") erred in permitting information to be redacted in dairy companies' NMPs.
Under the pertinent Washington statute:
"In addition to the submission of NMPs to the Department, the permit required CAFOs to maintain "'certain additional operational records onsite'" and make these records "'available upon request by the Department and the Department of Agriculture." If a member of the public requested information, the Department would request the information from the CAFOs. Under the permit, the CAFO must have supplied the information upon the Department's request. The Department could then determine on a "case-by-case" basis whether any of the requested information qualified as a confidential business record and was, therefore exempt form public disclosure." Id. at 955.
The Department provided a general permit to dairy companies regarding the release of nitrate pollutants. Id. at 953.
The plaintiff--community organization filed a complaint with the Pollution Control Hearings Board ("the Board"), who affirmed. Id.
The plaintiff then filed a complaint with the circuit court, contending that " . . . the Board erred when it concluded that the permit made NMPs available for public review and further argued that without the redacted information, citizens would not be able to determine whether observed CAFO activities were done pursuant to its NMP or in violation of that NMP." Id. at 961.
The Department maintained that the Clean Water Act and state law protected information regarding trade secrets, and that its "case-by-case" analysis was reasonable. Id.
Under Washington's law, it states:
"Whenever any records or other information supplied to the Department "relate to the processes of production unique to the owner or operator thereof, or may affect adversely the competitive position of such owner or operator if released to the public or to a competitor, the owner or operator . . . may so certify, and request that such information or records be made available only for the confidential use of the Department." Id. at 961.
The Washington appellate court stated that the statute granted the Department authority to decide whether a NMP constitutes a trade secret, id. at 962, and therefore deferred to the Department regarding the redaction of specific information. See id.