Update 7/5/2019: On Monday, June 24th, the U.S. Supreme Court made it easier for companies to keep information submitted to the federal government from the public by adopting a broader meaning of what can be deemed confidential under the Freedom of Information Act. In an opinion by Justice Neil Gorsuch, the Court ruled 6-3 that when commercial or financial information is (1) both customarily and actually treated as private by its owner, and (2) provided to the government under an assurance of privacy, the information is “confidential” within the meaning of Exemption 4 of FOIA. This overruled a 45-year-old precedent in National Parks & Conservation Association v. Morton, which had held that information is “confidential” — under the meaning in Exemption 4 — only where the disclosure was likely to (1) hurt the government’s ability to obtain necessary information in the future or (2) cause “substantial harm to the competitive position of the person from whom the information was obtained.”
The Reporters Committee for Freedom of the Press is supporting Argus Leader Media in its fight for public access to information about how much revenue retailers earn from the federal nutrition assistance program, SNAP.
The decision in Food Marketing Institute v. Argus Leader Media will bring to the U.S. Supreme Court a question about Exemption 4 of the Freedom of Information Act. Exemption 4 is typically used by agencies to prevent the release of trade secrets and confidential business information. The court’s decision will determine whether agencies can withhold from the public information that businesses have submitted to the government by claiming that the information has been otherwise kept private, or if the exemption only applies when substantial harm to a business’s competitive interest would occur from releasing the information.
In a friend-of-the-court brief filed March 25, the Reporters Committee and a coalition of 36 media organizations argued that the public has a right to access information on the government’s spending and interactions with private parties under FOIA.
“FOIA is a powerful tool used by journalists, news organizations, and the public to monitor how the government spends tax dollars,” the Reporters Committee stated in the brief. “For example, journalists have used SNAP data to determine which private companies obtain the greatest benefits from government subsidies. Similar records also allow the public to understand which companies the government selects for lucrative contracts.”
The U.S. Department of Agriculture and FMI previously argued that sharing the data would cause competitive harm to retailers, but the trial court and federal court of appeals rejected that argument. Argus Leader Media and other transparency advocates say the public has a right to access this information.
“The public has a right to access information about how and where the government spends public money,” said Reporters Committee staff attorney Caitlin Vogus. “When the government reached out to SNAP retailers about this issue, less than one percent of them objected to the release of this data.”
In the brief, the media coalition argued that using Exemption 4 to prevent the release of the records the Argus Leader requested does not align with the FOIA Improvement Act of 2016. The Act requires there to be “foreseeable harm” in order for an agency to withhold information under a FOIA exemption. Because the FOIA Improvement Act of 2016 does not apply to the request at issue, which was filed before the Act was passed, but will apply to future requests, the Reporters Committee argued that the Supreme Court should not have accepted the case and should dismiss it.
The brief also notes that FMI’s interpretation of the word “confidential” to mean any record that has been kept private is not enough to withhold information because it doesn’t prove substantial harm would occur. The brief cites a case from the federal court of appeals in the District of Columbia involving the National Parks and Conservation Association in which the court held that “confidential” should be defined as something that would either “impair the Government’s ability to obtain the necessary information in the future” or cause “substantial harm to the competitive position of the person from whom the information was obtained.”
“The mere fact that information may have been kept private does not demonstrate that competitive harm will result from its release,” the Reporters Committee argued in the brief.
Oral arguments before the Supreme Court in Food Marketing Institute v. Argus Leader Media are scheduled for April 22. View the full brief.