Flickr/Ryan Gillin
Now we'll never know how much money the Walmarts of the world make from taxpayer-funded benefits. Because it's "confidential."

Access Justice News Plate Shelf

The Supreme Court on Monday ruled in favor of grocery retailers in an unusual case that has pitted journalists against the grocery industry for nearly ten years. The decision will dramatically limit the kinds of business information that citizens and journalists can obtain via the Freedom of Information Act (FOIA), ending a 45-year precedent.

Nearly a decade ago, a newspaper in South Dakota called the Argus Leader submitted a FOIA request for data showing how much money retailers collect via the Supplemental Nutrition Assistance Program (SNAP, formerly food stamps). (We covered the case here.) The United States Department of Agriculture (USDA) refused to release the data, citing Exemption 4 under FOIA, which protects “confidential” business information. The Leader sued in response, the case wound its way through the lower courts, and the Supreme Court heard arguments in April of this year.

“Where information is already publicly available, people do not submit FOIA requests—they use Google.”

At issue was the definition of the word “confidential.” For the past 45 years, courts have applied a test to determine whether or not company information should be disclosed: If releasing its data could cause substantial competitive harm to a company’s bottom line, the government can’t be compelled via a FOIA request to share it. In its suit, the Leader argued that releasing SNAP sales would not damage retailers’ profits. The USDA stopped defending the case after it lost in court, and the Food Marketing Institute (FMI), a trade association representing retailers, took up the case on the agency’s behalf. At April’s hearing, FMI argued that the court should throw out this test and adopt a dictionary definition of the word “confidential,” meaning that the information is customarily kept private or that the party receiving the information had offered assurances of secrecy. It also argued that the “substantial competitive harm” test had been applied unevenly—read the full background on that here.)

In Monday’s 6-3 decision, the Supreme Court ruled that “confidential” should be interpreted based on the dictionary definition. Justice Neil Gorsuch wrote in the majority opinion that if a company decides information is confidential, the government should withhold it via FOIA. “At least where 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, the information is confidential within the meaning of Exemption 4,” Gorsuch wrote.

The Court’s decision effectively gives businesses relying on taxpayer dollars the ability to decide for themselves what data the public will see about how that money is spent.

What this means is that the Supreme Court has dramatically expanded the category of information that can be now classified as “confidential” and, as such, withheld under FOIA. In the past, reporters at The New Food Economy have seen information withheld under Exemption 4 that hasn’t seemed to relate to business secrets at all—the number of deaths at a warehouse, for instance, or an egg farm’s plan to make its machines safer. Before, we could’ve challenged those redactions and had a reasonably good chance of prevailing in court. Monday’s ruling seems to indicate that this information can now be considered secret simply because the companies involved say it is.

The Food Marketing Institute, which represented grocery stores in the case, issued a press release on Monday calling the decision “landmark.” Stewart Fried, a lawyer who wrote an amicus brief on behalf of a retailer association, wrote in an email that “The Argus Leader decision … restores the proper balance to how federal agencies and courts must interpret Exemption 4—based on the plain meaning of the word ‘confidential,’ not a judicially-created requirement inconsistent with the statutory language used by Congress more than 50 years ago.”

In a dissenting opinion, Justice Stephen Breyer wrote that the decision goes against the spirit of FOIA. “The whole point of FOIA is to give the public access to information it cannot otherwise obtain. So the fact that private actors have ‘customarily and actually treated’ commercial information as secret … cannot be enough to justify nondisclosure. After all, where information is already publicly available, people do not submit FOIA requests—they use Google.”

In a statement to the press, USA TODAY President Maribel Perez Wadsworth expressed disappointment with the decision. “The Court’s decision effectively gives businesses relying on taxpayer dollars the ability to decide for themselves what data the public will see about how that money is spent. This is a step backward for openness and a misreading of the very purpose of the Freedom of Information Act,” she added.

Elsewhere, press freedom advocates are looking to Congress to reintroduce and clarify the concept of “substantial competitive harm” in light of this decision. Melissa Wasser, coalition director for the News Media for Open Government, a coalition of news organizations that advocates for the freedom of the press, says her organization will be working on this in the future. “One good check on the judicial branch is Congress,” she says.

H. Claire Brown

Claire Brown is a staff writer for The New Food Economy focusing on food policy and the environment. Her reporting has won awards from the Newswomen’s Club of New York and the New York Press Club. She is based in Brooklyn. She can be reached via email at [email protected] or on Twitter at @hclaire_brown.

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