FOIA Doesn’t Entitle Newspaper to Private Business Information

June 24, 2019 by Dan McCue
One of several depictions of past and current Supreme Court justices on the main floor of the u.S. Supreme Court building. (Photo by Dan McCue)

WASHINGTON – The U.S. Supreme Court ruled Monday that the media and general public are not entitled to every bit of information a government body collects about private businesses.

The underlying case came to the high court from South Dakota where the Argus Leader, a newspaper owned by USA Today publisher Gannett, which wanted to see how much grocery stores across the nation were earning through their participation in the federal government’s Supplemental Nutrition Assistance Program, also known as SNAP.

Reporters from the Argus Leader, which happens to be South Dakota’s largest daily paper, filed a Freedom of Information Act request with the U.S. Department of Agriculture for data on the $65 billion a year program, but the government rejected the request, citing Exemption 4 of the Freedom of Information Act.

Exemption 4 shields from disclosure of “commercial or financial information” provided by private parties, if that information is also “confidential.”

The newspaper sued, arguing that the information is public and its use by the reporters is of considerable public interest because it would detail how the government is spending their tax money.

A lower court ordered the government to comply with the newspaper’s request, at which point, the Food Marketing Institute, a supermarket trade association, stepped in to continue the case.

The association maintains its members rarely if ever disclose their store-level sales data publicly because it can be used by competitors to secure an edge in future marketing.

The Trump administration has thrown its support behind both the department and the association.

Writing for the six-member majority, Justice Neil Gorsuch said the Agriculture Department was correct in applying Exemption 4 to the Argus Leader’s request.

In his view, “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.” 

The court majority went on to conclude that the store-level SNAP data qualifies as “confidential” under this standard.

The 8th Circuit Court of Appeals erred to hold otherwise, Gorsuch said.

Justice Stephen Breyer wrote a separate opinion concurring in part and dissenting in part, which Justices Ruth Bader Ginsburg and Sonia Sotomayor joined.

In a statement Food Marketing Institute President and CEO Leslie Sarasin said she agrees with the Supreme Court’s ruling and is pleased to have “a clear interpretation of confidentiality regarding private businesses’ commercial data.”

“Our industry’s commitment to the shopper remains constant amidst seismic marketplace shifts,” Sarasin said.  “The nation’s grocery stores have long kept confidential the amount consumers spend at individual stores whether through payment by cash, credit, debit or the Supplemental Nutrition Assistance Program, or SNAP.

“This store-level sales data undoubtedly must be considered confidential because its release would provide an unfair advantage to competitors,” she continued. “Legislative history tells us the Freedom of Information Act, or FOIA, was created to shine a light on actions by the government, not on that of private parties, and the Court’s expressed desire to refer our case back to the lower courts demonstrates that our case sets an important precedent well beyond disclosing store-level SNAP sales in grocery.”

As for the Argus Leader, news director Cory Myers said in a statement published by USA Today, that he and his colleagues at the paper are “disappointed in today’s outcome.”

“This is a massive blow to the public’s right to know how its tax dollars are being spent, and who is benefiting. Regardless, we will continue to fight for government openness and transparency, as always,” Myers said.

The case is Food Marketing Institute v. Argus Leader Media, 18-481.

Supreme Court

Supreme Court Weighs Ending Non-Unanimous Jury Verdicts in Criminal Cases Law
Supreme Court Weighs Ending Non-Unanimous Jury Verdicts in Criminal Cases
October 10, 2019
by Dan McCue

WASHINGTON - The Supreme Court this week took up a question it has avoided in recent years: Whether the Sixth Amendment of the Constitution requires unanimous verdicts in criminal cases in both federal and state courts. In practice, the Bill of Rights applies to both the... Read More

Supreme Court to Rule on Gun Law As Mass Shootings Create Outrage Guns
Supreme Court to Rule on Gun Law As Mass Shootings Create Outrage
October 10, 2019
by Tom Ramstack

WASHINGTON - The Supreme Court cast itself back into the emotional gun rights controversy when it put a lawsuit over a New York City ban on the transportation of  firearms on its schedule for its current session. The New York law bans most transportation of guns... Read More

Supreme Court Debates Whether Discrimination by 'Sex' Includes Gay and Transgender Workers Supreme Court
Supreme Court Debates Whether Discrimination by 'Sex' Includes Gay and Transgender Workers
October 8, 2019
by Dan McCue

WASHINGTON - The cases came from New York, Georgia and Michigan. In one, Donald Zarda, a Long Island man who taught skydiving for 15 years, was fired by his employer, Altitude Express, when a female customer complained that he had told her he was gay to... Read More

Justices Open New Term Hearing Challenge to Kansas' Lack of Insanity Defense Supreme Court
Justices Open New Term Hearing Challenge to Kansas' Lack of Insanity Defense
October 8, 2019
by Dan McCue

WASHINGTON -- The Supreme Court began what is expected to be a closely watched election year term on Monday with a case that asked a fundamental question: Does the U.S. Constitution guarantee a defendant an insanity defense? At issue in Kahler v. Kansas is whether Kansas... Read More

House Files Bipartisan Amicus Brief in Supreme Court in Support of DACA Supreme Court
House Files Bipartisan Amicus Brief in Supreme Court in Support of DACA
October 4, 2019
by Dan McCue

WASHINGTON - More than 170 current and former members of the House filed a bipartisan amicus brief in the Supreme Court Friday in support of the Deferred Action for Childhood Arrival program. Deferred Action for Childhood Arrivals, or DACA, is the 2012, Obama-era policy that protected... Read More

Supreme Court to Hear High Profile Abortion Case in Midst of 2020 Campaign Supreme Court
Supreme Court to Hear High Profile Abortion Case in Midst of 2020 Campaign
October 4, 2019
by Dan McCue

WASHINGTON - The Supreme Court agreed Friday to decide whether Louisiana can lawfully close down abortion clinics if their doctors do not have admitting privileges at a nearby hospital. The case does not threaten to overturn Roe v. Wade, the 1973 Supreme Court ruling that affirmed... Read More

Straight From The Well
scroll top