Opinion: SNAP just got more transparent – but perhaps not for long

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I’ll concede it.

Writing a deep dive blog into the gyrations of Supplemental Nutrition Assistance Program lawmaking in developing Farm Bill 2018 legislation can be polarizing.  Especially in the new world of tribal politics.

But this isn’t about SNAP work requirements so stay with it.  Rather this is about taxpayer transparency of SNAP usage.

Here’s the background.

Back in 2011, Argus Leader Media sent a Freedom of Information request to USDA requesting SNAP data – specifically ‘yearly redemption amounts, or EBT sales figures, for each store’ participating in the program between fiscal years 2005 and 2010.

USDA, while seemingly admitting to Argus it had the wherewithal to do so, instead sent a list of names and addresses of the nation’s participating SNAP retailers.

After appealing to USDA and being told no means no, Argus filed a complaint  in federal district court for judgment to acquire the withheld information.

Argus lost at the district court level.

The District Court of South Dakota – Sioux Falls granted USDA summary judgment, concluding SNAP spending data was exempt from disclosure under federal law.

Argus appealed the ruling to the U.S. Court of Appeals for the Eighth Circuit, which concluded the district court made a mistake and reversed the decision.  The court reasoned:

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.”

Case over right?  Argus gets the SNAP data right?

Not so fast.

The case has more lives than a cat.

One of the defendants – Food Marketing Institute – went back to the district court looking for a loophole.  FMI argued to the court that exemption four of the FOIA should apply to SNAP information.

Exemption four essentially protects “trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential.”

The Food Marketing Institute argued USDA required retailers to provide the government SNAP statistics … and in return under FOIA have a reasonable expectation the data would not be shared beyond the government.

But the federal district court found the Food Marketing Institute’s argument invalid.  And the case once again was appealed to the Eighth Circuit, which earlier this month upheld the district 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.”

OK … now does Argus (and any other media interested in filing a FOIA) get the SNAP data?  Perhaps.

But the media may need to move quickly before Farm Bill  2018 is signed into law.  Frankly this sort of information shouldn’t be the subject of a half decade court food fight.  The public has a reasonable right of knowing how its tax dollars are being spent.

So why was USDA and grocery trade groups fighting tooth and nail to keep basic SNAP data bottled up?

One key reason probably is that grocery stores don’t want you to know that SNAP dollars make up a significant portion – perhaps more than half in some states – of all grocery retail sales.

In other words SNAP is lucrative.

Grocery chains also had to be thinking: f we lose against Argus it won’t be long before some media organization will be back asking for specific information – what are people actually buying with SNAP funding.

National Grocers Association president and CEO Peter Larkin perhaps unintentionally tipped the grocery retail industry’s hand saying buried somewhere in new farm bill legislation is language that would prohibit release of SNAP information.

Yup it’s there.

As it turns out House lawmakers want to create a new “national gateway” to collect SNAP data, but then prevent the public from learning what it contains:

(F) NONDISCLOSURE OF INFORMATION.—Any information collected through such gateway about a specific retail food store, wholesale food concern, person, or other entity, and any investigative methodology or criteria used for program integrity purposes that operates at or in conjunction with such gateway, shall be exempt from the disclosure requirements of section 552(a) of title 5 of the United States Code pursuant to section 552(b)(3)(B) of title 5 of the United States Code. The Secretary shall limit the use or disclosure of information obtained under this subsection in a manner consistent with section 9(c).

Well that’s horse hockey.

Basic SNAP data is not proprietary information. What is true is that grocery stores don’t want to be embarrassed and worse by the knowledge that they are raking in huge profits from SNAP.

About Dave Dickey

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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