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General Legislative Discussions Any general discussion concerning legislative issues or events. Not necessarily specific to a particular region, or even a type of animal group.

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Old 04-21-2019, 01:35 PM   #1
Interesting FOIA Case Going to USSC

Interesting case going to the USSC. At issue is the limit on what kind of info is subject to FOIA and what is not, with respect to confidential commercial data, even if that data involves how much money the government is spending.

The Argus Leader is arguing for public records at the U.S. Supreme Court on Monday. Here's why.

Jonathan Ellis, Sioux Falls Argus LeaderPublished 2:27 p.m. CT April 17, 2019 | Updated 1:58 p.m. CT April 19, 2019

Argus Leader will be heard in the U.S. Supreme Court April 22. Here's why.

What started as a routine request for government spending records more than eight years ago will be the subject of a U.S. Supreme Court argument Monday that could alter the landscape of public information in the United States.

What's at stake

At stake in Food Marketing Institute v. Argus Leader Media is more than 40 years of established case law on a key provision of the Freedom of Information Act, known affectionately as FOIA by researchers, journalists and government watchdogs. Industry groups led by FMI and the U.S. Chamber of Commerce hope to persuade the high court to drastically narrow information that is currently available under FOIA.

How did the case start?

The case centers on a request under FOIA that the Argus Leader made in February of 2011 with the U.S. Department of Agriculture. The request asked USDA to turn over several years of annual amounts that taxpayers paid to every business in the country that sells food under the Supplemental Nutrition Assistance Program, formerly known as the food stamp program. Businesses that participate in SNAP include grocers, gas stations, big-box retailers and farmers’ markets.

Why does this matter: Supreme Court case: Why is Argus Leader seeking food stamp data?

The Argus Leader felt the taxpayer payments would identify potential instances of food stamp fraud, as well as give more insight into food deserts and food insecurity in rural South Dakota. The payments would also identify which corporations make the most money in the program.

USDA declined to release the records, which triggered years of litigation as the paper fought to win what it considered a routine request for government spending records, the type of records that governments around the country regularly make public.

SNAP is the nation's most important anti-hunger program for the poor. At its height during the Great Recession, taxpayers spent $80 billion a year on the program. That number has gradually decreased to $65 billion with the improving economy.

What is the Freedom of Information Act?

The origins of the case predate the Argus Leader’s 2011 request. Congress passed FOIA in 1966, and on July 4, 1966, President Lyndon B. Johnson signed it into law, writing: "This legislation springs from one of our most essential principles: A Democracy works best when the people have all the information that the security if the nation will permit."

The act included nine exemptions that allow federal agencies to withhold certain documents, including law enforcement records and records that could compromise national security. Among them is exemption four, which allows the government to withhold, "Trade secrets or commercial or financial information that is confidential or privileged."

More: Judge grants Argus Leader Media attorney fees in FOIA lawsuit

In 1974, the U.S. Court of Appeals for the District of Columbia sought to flesh out the exemption in National Parks & Conservation Association v. Morton. The court decided that the government could withhold records under exemption four only if releasing them would "cause substantial harm to the competitive position of the person from whom the information was obtained."

The competitive harm test advanced by the National Parks decision has been adopted by courts across the country.

The information that can be withheld

But FMI argues the National Parks decision made more information available to the public than Congress intended when it passed FOIA. The exemption, FMI contends, allows the government to withhold information that businesses deem "confidential." The trade group argues that businesses treat their SNAP sales figures as confidential and should therefore be exempt from disclosure.

"National Parks," FMI argues in its brief with the Court, "came from an era when many courts were less than rigorous about statutory text, and National Parks exemplifies this approach."

FMI’s argument - that the plain meaning of "confidential" should control whether information is released under FOIA - is likely to be an appealing one among the Court’s textualist justices, who analyze cases based on the statutory text, said Bernard Bell, a Rutgers Law School professor who has followed the case.

"I think they are looking to continue the trend of refocusing the interpretation of FOIA on the text of the FOIA statute rather than some of the sensitive accommodations to competing interests that courts were inclined to do in the 1970s and 80s when a lot of FOIA law was being developed," Bell said.

How we got here: How a South Dakota FOIA request landed in the U.S. Supreme Court

The U.S. Chamber of Commerce, which filed a brief supporting FMI, argues businesses should decide what is confidential and therefore releasable under the law.

"In keeping with the ordinary meaning of its plain language, this provision should allow businesses to share sensitive commercial information freely with the government, safe in the understanding that the information will not be disclosed under FOIA as long as the submitter has not otherwise made the information available to the general public," the Chamber argues.

This is what the Argus Leader is arguing

In its brief, the Argus Leader argues that the National Parks test was consistent with the understanding of what "confidential" meant when Congress enacted FOIA.

"When FOIA was enacted, the common law protected against disclosure of confidential business information if the disclosure would cause competitive harm. In other words, ‘confidential commercial information’ was a term of art at common law meaning business information that would cause competitive harm if disclosed"

The paper has argued throughout the eight years of litigation that the records it seeks are routine spending records, akin to what governments make public all the time.

FOIA, Bell said, was intended to allow the public to know what government is doing. At the heart of that intent is understanding where government is spending taxpayer money.

"Just in terms of having some knowledge of how the government is spending money, what impacts those expenditures are having, it would seem to me as important for that information to be available to the public," he said. "That wouldn’t even be a consideration if the sole question is how the business treats the information."

Indeed, FMI argues that FOIA does not justify "categorical" disclosure of government spending to the taxpayers who fund the government.

Looking ahead to Monday's Supreme Court appearance

Ultimately, Monday’s trip to the Supreme Court could put an end to a long, drawn out legal battle that started in President Obama's first term in office.

"We've been at this a long time," Argus Leader news director Cory Myers said, "and at every turn the courts have sided with our argument that this is public information. It's unfortunate that FMI felt the need to intervene after government had agreed to release the public data, but I'm confident the U.S. Supreme Court will find in the public's favor."

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