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Pacific Northwest
Hawai'i CFS

CFS Sues State of Hawaii for Refusing to Disclose Information on Field Tests of Genetically Engineered Crops in Hawaii

July 22, 2003

The Center for Food Safety (CFS), a national nonprofit organization, represented by Earthjustice, filed a lawsuit today in the Circuit Court of the State of Hawai`i, First Circuit, seeking to compel the Department of Agriculture of the State of Hawai`i (DOA), to provide, pursuant to state open records laws, public access to state records relating to ongoing open-air field tests of genetically engineered, pharmaceutical-producing crops in Hawai`i.  DOA has denied access to any of the requested records, claiming that under federal law it cannot disclose them without prior approval of the United States Department of Agriculture (USDA).

“DOA’s reasoning is transparent,” explained Earthjustice attorney Isaac Moriwake.  “The requested records are held by the state, so state, not federal, law applies.  The DOA is mixing apples and oranges in trying to withhold information from the public that will reveal the state’s negligence in failing to oversee these field trials.”

The information sought by CFS relates to ongoing field tests of plants genetically altered to produce a wide range of industrial chemicals or drugs, including contraceptives, blood clotters and thinners, hormones, vaccines, and other potent, biologically active substances.  Because such methods, also known as “biopharming,” often use food crops consumed by humans and take place in the open air, they raise obvious concerns about potential harmful exposure to humans and the environment.

Nonetheless, very little information is provided to the public about the field tests.  For example, USDA’s website indicates that two biopharm field tests in Hawaii were permitted in 2002:  a .5-acre field test of a variety of sugar cane that received a gene from a “man,” and a 20.8-acre field test of a variety of corn, whose gene donor is concealed as “confidential business information.”  No other information is provided regarding, for example, the substances produced by the crops, or even the location of the tests, beyond their existence somewhere in the state.

“The shroud of secrecy surrounding biopharming is unacceptable,” said Joseph Mendelson, CFS’ legal director.  “The public has the right to know about these potentially harmful substances being grown in our backyard.  The state has become a willful accomplice in depriving Hawaiians this right.”

DOA cooperates with USDA in overseeing field tests of all genetically engineered crops in Hawai`i, including those related to biopharming, and in the process, produces and receives documents containing important information about what kind of substances are being produced, how and where these substances are being released, and what the responsible authorities are doing to control them.  CFS has requested access to these documents, but DOA has refused, claiming that:  (1) disclosure would “frustrate a legitimate government function” because DOA would no longer receive any documents from USDA, and (2) the documents are “protected from disclosure” under federal open records laws because they contain confidential business information.

Moriwake, however, pointed out that USDA’s own regulations require it to furnish documents to DOA and reiterated that the federal laws expressly apply only to federal agencies and do not affect DOA’s own, independent duties of disclosure under state law.  If the state believed that it could not disclose certain information, he added, it could simply redact the information before issuing the documents, instead of denying all access.

The state public records law, entitled the Uniform Information Practices Act (or UIPA), Haw. Rev. Stat. ch. 92F, requires state agencies to make all government records, with few narrow exceptions, available to the public for inspection and copying.  UIPA allows citizens denied access to sue to compel compliance; it mandates that such cases “shall take precedence on the court’s docket over all cases” and provides for reimbursement of litigation expenses to citizens vindicated in court.

Mendelson made clear CFS’ resolve to enforce the statute:  “In the case of genetically engineered crops, and biopharming in particular, what we don’t know could cause serious harm.  The state must be held to basic standards of public accountability and cannot be allowed to go to such lengths to keep the public completely in the dark.”

To view complaint, click HERE.