Update: On June 24, 2019, the U.S. Supreme Court reversed and remanded the lower court’s decision. “[W]here commercial or financial information is both customarily and actually treated as private by its owner and provided to the government under an assurance of privacy,” Justice Neil Gorsuch wrote in the Court’s opinion,” the information is ‘confidential’ within the meaning of Exemption 4.”
The Reporters Committee and 36 media organizations filed an amicus brief in the Supreme Court in support of the Argus Leader in Food Marketing Institute v. Argus Leader. The Food Marketing Institute (FMI) is appealing a decision of the Eighth Circuit that held that Exemption 4 of FOIA does not shield from release information generated and compiled by the government regarding the amounts of federal money disbursed to food retailers under the Supplemental Nutrition Assistance Program. The amicus brief argues that because the FOIA Improvement Act of 2016, which codified the “foreseeable harm” standard, significantly alters FOIA but does not apply to the request at issue in this case, the Court should dismiss the writ of certiorari as improvidently granted. Alternatively, the amicus brief argues that the Court should affirm the Eighth Circuit and adopt the test set forth in National Parks & Conservation Ass’n v. Morton, 498 F.2d 765 (D.C. Cir. 1974) for interpreting Exemption 4. The amicus brief also highlights the strong public interest in access to records regarding expenditures of public funds, which is protected by the National Parks test, and news stories that use such records.