Last week, the Supreme Court ruled against the public’s right to information involving government dealings with private companies and corporations. Following the Court’s ruling, a business need only claim that information it provided to the government is “privileged or confidential” for the government to justify withholding the business’ records from the public – a disappointing outcome for the media and advocates for government transparency.
The Court’s ruling concludes an eight-year legal battle that first arose when the Argus Leader, a South Dakota-based newspaper, sought data from the United States Department of Agriculture while investigating fraud in the administration of a food stamps program. The Argus Leader won in the lower courts, after which Food Marketing Institute (FMI), an American trade group, intervened and filed a petition to the Supreme Court to block the release of the documents, setting the stage for the Court to reexamine the nation’s preeminent public records law.
Congress enshrined public access to public records when it enacted the Freedom of Information Act (FOIA) in the late 1960s. FOIA codified the public’s right to request access to records from federal agencies, with hopes that the legislation would help support an informed citizenry. Alongside the disclosure requirements, FOIA also detailed several exemptions to the statute. FOIA’s exemption 4, which allowed the government to withhold financial or commercial records considered “privileged or confidential,” was at the heart of FMI vs. Argus Leader.
Casting aside decades of precedent that business records could be exempt from FOIA if disclosure would result in “competitive harms,” the Court instead relied on a strict interpretation of the law holding that records need only be “privileged or confidential” to be exempt from disclosure. The Court’s tautological reasoning means that if a business chooses not to release information publicly, the information is confidential and exempt from release under FOIA.
The ruling will narrow the public’s access to information, especially for private businesses that contract with government agencies. Leading up to oral arguments, numerous press freedom and government accountability groups, including Open The Government, had urged the Court to improve upon and clarify how FOIA’s exemption 4 is applied. The Court’s decision was widely received by advocates as a disappointing setback for the country’s Freedom of Information laws and the public’s right to know.
Michael Morisy, chief executive of MuckRock News, an OTG coalition partner stated: “I’m really concerned this ruling will give corporations — including government contractors — a broad veto power over meaningful transparency and oversight. In this case, we’re told the public has no right to know how it’s tax dollars are being spent. In other cases, this might mean that the public can’t see how government is using tech companies to run surveillance programs or shine light on fraud and abuse in private prisons. Particularly at a time of increasing privatization of government services, this is a major setback for understanding how our country works.”
As our federal government outsources more of its processes to contractors and businesses, the challenge of accessing timely and accurate information about its affairs just became even more difficult. Instead of leading on issues of transparency and openness the Supreme Court just gifted private business interests another tool of secrecy.