High Court Strikes Blow to Freedom of Information

The U.S. Supreme Court has ruled in favor of allowing government agencies to withhold data that a private entity has deemed confidential … as long as that entity and agency promise to keep those records from disclosure.

In 2011, the Argus Leader newspaper (Sioux Falls, S.D.) submitted a Freedom of Information request to the U.S. Department of Agriculture,  soliciting data about how taxpayer-funded dollars were being used at businesses selling food products under the Supplemental Nutrition Assistance Program, or food stamp program.

According to the newspaper, the records “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.”

The 6-3 Supreme Court decision overturns 8th Circuit and district court rulings stating that these records should have been provided. Under existing case law, exemptions to the Freedom of Information Act would be allowed in such instances only if the government could not obtain the data or its dissemination would harm the private entity’s competitive position.

Now that entity need not show any harm.

You can read the entire decision as reported by Scotusblog.com. Here is an excerpt:

Henceforth, a private-sector submitter of information to an agency will only need to show their efforts to keep the information private and the assurances they received from the agency that it would keep the information from the public.

Scotusblog also noted how Trump appointee Neil Gorsuch, who wrote the opinion,  referred to dictionary interpretations of the term “confidential.” He overlooked FOIA’s legislative history as well as Congress’ intent in enacting it. “Nor was he persuaded by the newspaper’s effort to argue for the relevance of common law definitions of ‘confidential.'”

You can read the Supreme Court decision by clicking here.

Justices Ruth Bader Ginsburg, Sonia Sotomayor and Stephen Breyer dissented, believing the ruling disregards key provisions of FOIA, hindering the media’s and public’s ability to hold government accountable.

Cory Myers,  Argus Leader news director, said, “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.”

Living Media Ethics (Routledge/Taylor & Francis) discusses in several chapters how journalists use FOIA in investigations. The Act was signed into law in 1966 by President Lyndon Johnson.  You can review provisions and learn how to use FOIA at this URL.

In an excerpt from Living Media EthicsMiles Moffeit, investigative reporter for The Dallas Morning News, notes that businesses and government agencies often withhold information from the public. “We have to double down on our mission to hold public servants accountable,” Moffeit says. “Reporters have a huge responsibility to stretch ourselves as watchdogs, and to champion the vulnerable, as well as ourselves as guardians of democracy.”

Given the ruling in Food Marketing Institute v. Argus Leader, reporters now will have to work harder to serve the public in their watchdog role.


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