Preliminary Data from FEMA as Requested by the City
Q: I have requested “preliminary” flood mapping data from FEMA for the city. The FEMA Consultant has responded that the data are preliminary, therefore, they are not required to release it to the public. However, the city is using the preliminary flood data to dictate development standards. The city requires developers to conduct their own flood studies since the FEMA information is only draft or preliminary. If individual flood study conclusions are different than FEMA, the city sides with FEMA saying the FEMA information is superior. I want to independently verify the FEMA data, since I suspect it to be inaccurate. I believe the FEMA data I’ve requested falls under CPRA and FOIA since the city FEMA flood study was funded by local and federal money.
A: Since the records at issue were created by a federal agency and apparently maintained by a local agency, you may have rights of access under either the FOIA (to the extent you are requesting the records from FEMA) or the Public Records Act (to the extent you are requesting the records from the City. See, e.g., Govt. Code section 6252(e) (defining public records subject to disclosure under the PRA as those records “prepared, owned, used, or retained by any state or local agency”) (emph. added).
Thus, the FEMA data would appear to be a public record subject to disclosure under the California PRA unless an exemption to disclosure applies. If you have not already done so, you should request the data from the City under the PRA. As you are no doubt aware, your request can either be oral or in writing. A sample written request can be found at the CFAC web site. (http://www.cfac.org/templates/cpraletter.html)
Although it is usually more difficult and time-consuming to obtain data under the FOIA, you should also make a formal written request to FEMA for the data under FOIA, following the instructions on the FEMA web site http://www.fema.gov/help/foia.shtm. At least as a preliminary matter, it does to appear that the information you seek should be exempt from disclosure under FOIA.
I hope this information is helpful to you.
Q: I have requested the data from FEMA. The FEMA consultant has responded saying that the data can not be released since it is draft and not adopted. Maybe that falls under Exemption 5? The city claims that the only have paper maps and not the digital data.
I asked the city this morning to request the digital data from the FEMA consultant since they city is relying on this data to draw conclusions and make decisions. The city said they will ask for the data, but can not guarantee that the FEMA consultant will release it.
A: I think you should push FEMA to release the information by making a formal written request to the agency. While I suppose there is an argument that Exemption 5 would apply, I really don’t think that argument carries the day. Exemption 5 has been construed to apply to documents that are normally privileged in the context of civil discovery, primarily through the work product privilege, attorney client privilege and/or the deliberative process privilege. Of those three, the only one that might arguably apply would be the deliberative process privilege. However, the deliberative process privilege does not apply to purely factual data.