South Dakota newspaper’s case seeking USDA data goes to high court
In March, DC Pro Chapter Recording Secretary Kathryn Foxhall, a noted freedom of information advocate, wrote for the Dateline Online newsletter that an upcoming Supreme Court case (with which she has a research connection) “could have the most important consequences for interpretation of the Freedom of Information Act in some time. In particular, it has implications for the ‘trade secrets’ issue that is increasingly worrisome for SPJ and other open government groups. It’s a focus of the SPJ Freedom of Information Committee.”
A decision has come down. Here’s another DC Pro Chapter board member’s description of what took place:
Food Marketing Institute v. Argus Leader Media, decided by a 6-3 vote, June 24, 2019; Gorsuch wrote the opinion; Breyer, Ginsburg, and Sotomayor dissented.
The federal government is not required under the Freedom of Information Act (FOIA) to disclose redemption data from retail stores participating in the government’s food stamp program.
The ruling blocked an effort by a South Dakota newspaper, the Argus Leader, to use a FOIA request to obtain data collected by the U.S. Department of Agriculture (USDA) about yearly spending totals at individual grocery stores participating in the food stamp program, formally known as the Supplemental Nutrition Assistance Program, or SNAP. The newspaper submitted the request in 2011 to the USDA’s Food and Nutrition Service. USDA supplied the names and addresses of stores participating in the program, but it declined to provide “store-level” data by citing the FOIA exemption, codified at 5 U.S.C. §552(b)(4), for “trade secrets and commercial or financial information obtained from a person and privileged or confidential.”
The newspaper sued USDA in federal court; the district court judge upheld the department’s withholding of the data, but on appeal a three-judge panel of the 8th U.S. Circuit Court of Appeals held, in line with several other circuit courts, that FOIA’s Exemption 4 shields financial information only if the release would result in “competitive harm.” On remand, the district court held a bench trial and determined that any competitive harm would not be substantial. USDA declined to appeal, but notified the Food Marketing Institute, a trade association representing grocery stores, to allow it to appeal the decision as an intervenor. The 8th Circuit affirmed the district court’s decision in a decision issued on May 8, 2018. The Supreme Court agreed to hear the trade association’s appeal.
In a 6-3 decision, the Supreme Court held that information collected by a federal agency is confidential for purposes of FOIA Exemption 4 if treated as private by its owner and provided under an assurance of confidentiality. Writing for the majority, Gorsuch began his 11-page opinion by commenting critically that the 8th Circuit had “engrafted” the competitive harm test onto Exemption 4. He traced that standard back to a decision by the U.S. Court of Appeals for the District of Columbia Circuit in 1974 that he said had drawn “considerable criticism” over the years. He noted that earlier decisions had treated information as confidential if collected by the government under an assurance of confidentiality. In regard to retailers’ participation in the food stamp program, Gorsuch noted that the government “has long promised them that it will keep their information private.”
He rejected what he called policy arguments offered by the newspaper and adopted by the dissenters. “They think it would be a good idea to require a showing of some harm,” he wrote, referring to the dissenting justices. In their opinion, Gorsuch continued, “they cite exclusively from specialized dictionary definitions lifted from the national security classification context that have no bearing on Exemption 4.”
In a concluding paragraph, Gorsuch stated the holding at length: “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.” Applying that test, Gorsuch concluded that the data at issue “is confidential under that construction.” Five justices joined his opinion without writing separately: Roberts, Thomas, Alito, Kagan and Kavanaugh.
In an opinion concurring in part and dissenting in part, Ginsburg argued that Exemption 4 requires proof of “genuine harm to the owner’s economic or business interests.” She criticized the line of decisions requiring proof of “substantial” harm but rejected the majority’s holding that Exemption 4 imposes no “harm” requirement whatsoever. “After all,” she wrote, “the word ‘confidential’ sometimes refers, at least in the national security context, to information the disclosure of which would cause harm.” She closed by invoking what she called “the whole point of FOIA,” to provide public access to information. “[A] tool used to probe the relationship between government and business should not be unavailable whenever government and business wish it so,” Ginsburg argued. She ended by saying that she would remand the case for a determination whether release of the information would cause genuine harm. Breyer and Sotomayor joined her opinion.
The decision reversed the 8th Circuit’s judgment and remanded the case for “further proceedings consistent with this opinion.”
— from Kenneth Jost, at large board member of SPJ DC Pro Chapter and author of a Supreme Court Yearbook updated annually
Bipartisan group of senators responds with Open and Responsive Government Act
In the wake of that decision, legislation was introduced July 23 in the Senate to reinforce open government tenets. This press release came from the office of Finance Committee Chairman Chuck Grassley, R-Iowa:
FOR IMMEDIATE RELEASE
Tuesday, July 23, 2019
Grassley, Leahy, Cornyn, Feinstein Introduce Bill to Reinforce Transparency in Wake of Supreme Court FOIA Decision and Recent Regulations
WASHINGTON – Senator Chuck Grassley (R-Iowa) today, along with Senators Patrick Leahy (D-Vermont), John Cornyn (R-Texas), and Dianne Feinstein (D-California), introduced the Open and Responsive Government Act (S. 2220), to reverse recent developments that undermine the public’s right to access information and hold government accountable. The legislation would restore a longstanding legal interpretation of the Freedom of Information Act’s (FOIA) exemption regarding confidential commercial information, which was recently cast aside by the Supreme Court. It would also respond to recent regulatory actions by making clear that any information which does not otherwise fall within one of FOIA’s nine exemptions should be made public — thus, reinforcing FOIA’s presumption of openness and transparency.
“The people’s business ought to be available to the people. It’s only through public oversight and transparency that we ensure government programs are operating as intended, without any waste, fraud, or abuse. Transparency is something worth fighting for, and it seems we’re always in an uphill battle to keep the sunlight shining on government. This balanced and bipartisan bill responds to recent court rulings and regulatory actions, restoring pro-transparency principles and making crystal clear where Congress stands on the public’s right to know,” Grassley said.
“Protecting the American people’s right to access information from and about their government – a fundamental right in any self-governed society – is a longstanding, bipartisan priority. That’s exactly why a bipartisan group of senators came together and introduced the Open and Responsive Government Act of 2019 today. Our bill is a targeted, commonsense step to bolster our premier transparency law, the Freedom of Information Act. The bill would limit the extent to which the government can use a recent Supreme Court opinion to justify abuses of a particular FOIA exemption to withhold information. And it would codify another court decision – one that the Trump administration increasingly ignores – prohibiting the government from withholding information on the tenuous rationale that it is supposedly not responsive to the FOIA request. I am proud to take part in introducing this bill and to continue our bipartisan efforts to keep our government open to the people it serves,” Leahy said.
“The Freedom of Information Act is a cornerstone of our country’s belief in open and transparent government. As court rulings are released and case law changes, updates like this must be made to FOIA to improve compliance and ensure Americans can continue to hold those who represent them accountable,” Cornyn said.
“Companies shouldn’t be allowed to hide information about how they’re spending federal funds or using federal property. Doing so would prevent the public from holding companies accountable for wasting taxpayer funds. This commonsense legislation restores the standard under which we’ve operated for 40 years and provides the public with the ability to know how taxpayer dollars are being spent,” Feinstein said.
Our bill is a targeted, commonsense step to bolster our premier transparency law, the Freedom of Information Act. The bill would limit the extent to which the government can use a recent Supreme Court opinion to justify abuses of a particular FOIA exemption to withhold information. And it would codify another court decision – one that the Trump administration increasingly ignores – prohibiting the government from withholding information on the tenuous rationale that it is supposedly not responsive to the FOIA request.
— Sen. Patrick Leahy
In June, the Supreme Court in Food Marketing Institute v. Argus Leader Media ruled that a longstanding interpretation of FOIA’s Exemption 4—often called the National Parks standard—is inconsistent with FOIA’s text and structure. For decades, the National Parks standard made clear that information may only be withheld from the public as “confidential” under Exemption 4 if its disclosure would cause “substantial competitive harm” to the person or entity that provided that information to the government. By setting aside this standard, the Court’s decision significantly broadens the scope of Exemption 4, making it more difficult for the media and general public to learn about government programs and hold accountable those who administer them. To rectify this, the Open and Responsive Government Act updates FOIA Exemption 4 to include key accountability language from National Parks, ensuring continued access to information.
The legislation also codifies a 2016 holding by the U.S. Court of Appeals for the District of Columbia to make clear that FOIA’s nine exemptions are the only authority under which agencies may redact information in otherwise responsive records. In American Immigration Lawyers Association v. Executive Office for Immigration Review, the court made clear that redacting information as simply “non-responsive” within an otherwise responsive record “cannot be squared with [FOIA’s] statutory scheme.” Recent regulatory actions, however, appear to conflict with that holding and grant authority “to issue final determinations whether to release or withhold a record or a portion of a record on the basis of responsiveness….” The bill responds to these developments by making the D.C. Circuit’s holding the rule, not the exception.
In March, Grassley, Leahy, Cornyn and Feinstein expressed concern about a continued culture of secrecy within the federal bureaucracy that has spanned many administrations. They recently criticized a new Environmental Protection Agency rule potentially undermining access to certain material. Proposed rules by the Department of the Interior were also the subject of criticism from transparency advocates.
The Open and Responsive Government Act is the just most recent of Senator Grassley’s longstanding efforts to respond to decisions by federal courts that undermine accountability, transparency, or other congressional intent. In 2018 and 2019, Senator Grassley introduced or sponsored legislation to close loopholes in the Anti-Terrorism Act of 1992 — a law he authored — after court decisions limited the ability of American victims of terrorism to seek justice. In 2017, Senator Grassley’s Family Farmer Bankruptcy Clarification Act became law, following bipartisan work to respond to a 2012 decision by the Supreme Court that ignored Congress’ express goal of helping family farmers.
Text of the Open and Responsive Government Act is available HERE.