Opinion: Supreme Court ruling could make FOIA more opaque

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Later this month – April 22 to be exact – the newly minted conservative U.S. Supreme Court will hear oral arguments in the case Food Marketing Institute v. Argus Leader Media.  I first blogged about the case in January but here are the particulars in a nutshell.

Argus Media Media and its South Dakota newspaper invoked the Freedom of Information Act to acquire from USDA how much taxpayer money grocery stores take in annually through the Supplemental Nutrition Assistance program.  USDA declined to provide the information setting off a court battle.

Argus initially lost in federal district court which ruled USDA properly withheld the information under exemption 3 of FOIA which applies to data and information that can’t be disclosed under other federal law.  But the Eighth Circuit reversed and sent it back to district court.

On remand the case became a debate over exemption 4 of FOIA which “trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential.”

Circuit Courts have ruled the confidential exclusion should only apply if disclosure is likely to cause competitive harm to the source of the information.  In ruling on remand for Argus the district court determined USDA’s claim of competitive harm was speculative.

USDA declined to appeal the ruling, but Food Marketing Institute which represents retail grocery stores took up the case.

On appeal the Eighth Circuit affirmed the district court ruling:

“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.”

Undaunted the FMI appealed to the U.S. Supreme Court which granted cert in January.

The questions before the Supreme Court are massive and will have far reaching consequences for journalists seeking transparency in corporation dealings with government.

At issue in particular is what does the statutory term “confidential” mean?  FMI is arguing in its amici curiae brief that the courts have got the definition of confidential wrong suggesting Congress intended no more or no less than a dictionary ordinary definition of the word.

A second question is equally far reaching asking the Supreme Court to consider what constitutes “substantial competitive harm under the FOIA 4 exemption.

It doesn’t take a rocket scientist to know on which side the U.S. Chamber of Commerce’s bread is buttered in this case.  In its amici curiae brief the Chamber is pushing hard for an ordinary definition of “confidential:”

“Refocusing courts on Exemption 4’s plain text will alleviate uncertainty; reduce burdens on courts, litigants, and government agencies; and allow companies to make informed decisions about whether to voluntarily share sensitive information with the government or participate in government programs that may require disclosures.”

Obviously should the Supreme Court agree with FMI and the Chamber of Commerce FOIA exemption 4 will become a rubber stamp sledgehammer wiled by Big Ag companies to prevent disclosure of information in their dealings with the media over governmental information.

The public will not know which ag companies are receiving tax dollars.  Corporations will have a new powerful tool shield public data proprietary in other cases like information about tests, scientific data, clinical trials from USDA, the Environmental Protection Agency and the Food and Drug Administration.

Not to mention financial information about government contracts including technology the feds purchase from the private sector.

Yeah, it’s a big deal. Here’s hoping the Eighth Circuit prevails.  The public needs more transparency in how its tax dollars are spent … not less.

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 dave.dickey@investigatemidwest.org.

This column reflects the writer’s own opinions and not those of Big Ag Watch.

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