Supreme Court creates new limits to FOIA disclosure

Posted at 10:13 AM, Jun 24, 2019
and last updated 2019-06-24 12:13:27-04

The Supreme Court on Monday dealt a setbackto Freedom of Information Act advocates, ruling that the term “confidential” can be interpreted broadly to allow the government to withhold from disclosure under FOIA private businesses’ financial or commercial data in the government’s possession, even if the disclosure of that information would not cause any harm to the businesses.

The ruling came in a case concerning food stamps, in which a South Dakota newspaper had sought data from the Department of Agriculture on the number of stores participating in the federal food stamp program, and store-by-store data on the amount of purchases made using food stamps.

Writing for a 6-3 court, Justice Neil Gorsuch sided with a trade association representing grocery retailers, holding that FOIA does not require disclosure of such information so long as the business labels it as “confidential,” and provides it to the government under an assurance of privacy.

Gorsuch wrote that “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'” and fits within the exemption.

“We’re disappointed in today’s outcome, obviously,”said Argus Leader news director Cory Myers. “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.”

FOIA requires the government to make information available to the public upon requests, but there is a list of exemptions. Monday, the majority defined “confidential” to include information that is “both customarily and actually” treated as private by its owner and provided to the government under an “assurance of privacy.”

Gorsuch said that the court cannot “expand” the exemption beyond what its “terms permit.”

The dissenters objected, saying that there should be a requirement that the disclosure would cause “harm.”

Justice Stephen Breyer, joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor, wrote that in order for the information to be exempted it must also “cause genuine harm to the owner’s economic or business interests.”

Breyer said that he feared that the majority’s decision “will deprive the public of information for reasons no better than convenience, skittishness, or bureaucratic inertia.”