There is this scene in A Few Good Men where Colonel Nathan R. Jessep, played by Jack Nicholson, finds himself a witness in a military court trial involving two enlisted men accused of murder. Defense counsel Lieutenant Daniel Kaffee, played by Tom Cruise, applies the heat.
YOU CAN’T HANDLE THE TRUTH!
That in a nutshell that is what the Food Marketing Institute is telling the public while desperately trying to conceal how taxpayer dollars are being spent by recipients of the Supplemental Food Assistance Program.
To date it’s been an almost eight-year court battle between South Dakota’s Argus Leader newspaper and USDA and FMI.
Here are some particulars:
In 2010, the Argus Leader submitted a Freedom of Information request asking USDA to disclose how much money each retailer collects from the taxpayer funded SNAP. USDA declined to provide the information, citing a FOIA exception protecting confidential business information.
The District Court of South Dakota – Sioux Falls granted USDA summary judgment, concluding SNAP spending data was exempt from disclosure under federal law.
That was good enough for USDA which stopped defending the case.
But Argus wasn’t finished, appealing the decision to the Eighth Circuit which reversed the district court ruling:
The district court’s contrary conclusion stemmed from a misreading of the statute. First, the district court singled out the term “any information,” interpreting the statute to require withholding of all information—regardless of its source—used to determine whether “a retailer qualifies or continues to qualify for participation in the [program].” Yet the statute makes clear that only information obtained under § 2018(c)—submitted by a retailer—is exempted. When the statute says “obtained” it means “obtained,” not “can be obtained,” as the district court reasoned. (Emphasis added). “Congress expresses its purpose by words. It is for [courts] to ascertain—neither to add nor to subtract, neither to delete nor to distort.”
Enter FMI which until this point let USDA take the lead.
FMI would have you believe that SNAP sales data needs to remain a secret because grocery stores have very small profit margins and if the public were to know a retailer’s SNAP income it could hurt the bottom line.
YOU CAN’T HANDLE THE TRUTH!
So, FMI took the case back to court.
At the district level the FMI argued that if USDA compelled retailers to provide SNAP statistics it had a reasonable expectation the data would not be shared beyond the government. The district court ruled otherwise.
At the Eighth Circuit, it was more of the same:
“As to the facts we see no clear error. FMI argues that the district court erred in finding that the release of the contested data would have little effect on the grocery industry, and failed to give enough weight to its assertions that releasing the data would stigmatize some stores and cause stores to stop accepting SNAP. But record evidence showed that the contested data – which are nothing more than annual aggregations of SNAP redemptions – lacked the specificity needed to gain material insight into an individual store’s financial health, profit margins, inventory, marketing strategies, sales trends of market share.”
Which takes us to earlier this month, when the U.S. Supreme Court decided to take up the case.
The stakes are huge. At issue is far more than whether or not Argus gets basic SNAP data from grocery stores.
It will touch any industry compelled to give the federal government data, and more broadly could take the teeth out of FOIA.
That’s because in its ruling the Supreme Court likely will need to address in some detail just what information is protected by the FOIA business information exemption.
Could a ruling in favor of FMI provide Big Ag (and any industry for that matter) powerful new tools to deny even basic FOIA requests? You bet it could.
A Chamber of Commerce brief argued the high court needs to do something to stem the flow of information to the public:
“Refocusing courts on Exemption 4’s plain text will alleviate uncertainty, reduce burdens on both courts and litigants, and allow companies to make informed decisions about whether to voluntarily share sensitive information with the government or participate in government programs that entail mandatory disclosures.”
Well, I have news for the Supreme Court. Give corporations an inch and they’ll take a mile.
Here’s hoping the Supreme Court rules that the PUBLIC CAN HANDLE THE TRUTH!
About Dave Dickey
Dickey spent nearly 30 years at University of Illinois at Urbana-Champaign’s NPR member station WILL-AM 580 where he won a dozen Associated Press awards for his reporting. For 13 years, he directed Illinois Public Media’s agriculture programming. His weekly column for Big Ag Watch covers agriculture and related issues including politics, government, environment and labor. Email him at email@example.com.
This column reflects the writer’s own opinions and not those of Big Ag Watch.