Access to government spending data in limbo as SCOTUS considers FOIA case

On April 22, the Supreme Court heard oral arguments in Food Marketing Institute v. Argus Leader Media, a case that is likely to reveal the Court’s first interpretation of a key component of the Freedom of Information Act. Transparency and accountability groups, including Open The Government (OTG), are eager to see how the pending decision will impact public access to government spending information.

The eight-year legal battle began with a routine request for public information in 2011 when the Argus Leader, a daily newspaper in South Dakota, submitted a FOIA request to the U.S. Department of Agriculture (USDA) asking for data on annual revenue retailers receive from the Supplemental Nutrition Assistance Program (SNAP), the federal food stamp program paid for by taxpayer funds. Journalists can use these data to investigate government spending of taxpayer monies in a variety of ways, including  examination of potential food stamp fraud and  revenue businesses generate from SNAP.

The USDA denied the Argus Leader’s request, claiming that such SNAP data constitute confidential business information and their disclosure would cause competitive harm for retailers. The Argus Leader then filed suit in federal district court, bringing national attention to one of FOIA’s lesser-known components, Exemption 4, which allows agencies to withhold “trade secrets and commercial or financial information obtained from a person and privileged or confidential.”

During last week’s oral arguments, attorneys for the Food Marketing Institute (a retail trade and lobbying group that became an intervener in the case after the USDA lost on appeal in the Eighth Circuit) and the Argus Leader focused on the definition of “confidential,” and the standard used to determine if an agency can withhold records based on whether the information could cause substantial competitive harm.

The Justices also discussed whether the Food Marketing Institute had legal standing to be in the case. If the Justices decide it does not, they may dismiss the case without deciding on the Exemption 4 interpretation.

Right to know advocates have voiced concern over the potential that an unfavorable decision would expand the interpretation of Exemption 4 limiting the public’s access to information. In March 2019, OTG joined an amicus brief initiated by Cause of Action Institute urging the Court to improve upon and clarify how Exemption 4 is applied.

Among other measures, the brief called on the Court to eliminate a “duplicative” legal standard that enables the government to withhold information. Several other OTG coalition partners, including the Reporters Committee for Freedom of the Press and Public Citizen, have also filed amicus briefs urging the Court to protect the public’s right to information.

The Justice’s will not share their official positions on the case for several more weeks, but the stakes are undeniably high. If the Court sides with the Food Marketing Institute, the decision could dramatically narrow the type of information that is accessible under FOIA, leaving the public with less information on government agencies’ spending and business interactions with private companies. The Court’s decision is slated for late June.