On Monday, the Supreme Court ruled against a newspaper in a case regarding the Freedom of Information Act, the law that allows disclosures of classified information held by the government, according to CNN. The ruling will make it harder for those who apply for a FOIA request to get private companies’ data, even if releasing that data wouldn’t harm the company.
The lawsuit that led to the ruling was brought by a South Dakota newspaper against the Department of Agriculture and a food retailers group in 2011. The newspaper, the Argus Leader, part of the USA Today Network, sought information on how food stamps were being used at supermarkets. Specifically, they wanted data on which stores where participating in the federal food stamp program and how many people were using food stamps at each store, according to CNN.
The decision was made with a 6-3 majority, and the majority opinion was written by Justice Neil Gorsuch (you know, the guy who wrongfully took the seat that should have belonged to Merrick Garland).
In the decision, 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.”
This is pretty ridiculous. What Gorsuch and the majority are arguing is that anything that is considered “confidential” by a company shouldn’t be released through a FOIA request. But if the information was freely available, why would anyone request it in the first place?
Justice Stephen Breyer, writing the dissenting opinion, noted this irony. Breyer wrote that “the whole point of FOIA is to give the public access to information it cannot otherwise obtain.”
The battle around what constitutes appropriate use of FOIA has been waged for decades now, as the Angus Leader notes:
Enacted eight years earlier in 1966, FOIA included an exemption that allowed the government to withhold information obtained from businesses that included trade secrets or financial data considered confidential. But the 1974 ruling narrowed what was considered confidential to records that, if released, would cause substantial competitive harm.
The trade group argued that the ruling overstepped congressional intent and asked the Supreme Court to allow businesses to decide on the need for confidentiality. The group was supported by industry groups, including the U.S. Chamber of Commerce.
This decision is a win for those business groups, and it will greatly expand what falls under the realm of FOIA exemptions. It’s bad news for advocates of transparent government and corporate accountability.
“We’re disappointed in today’s outcome, obviously,” Argus Leader news director Cory Myers said in a statement. “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.”
“The Court’s decision effectively gives businesses relying on taxpayer dollars the ability to decide for themselves what data the public will see about how that money is spent. This is a step backward for openness and a misreading of the very purpose of the Freedom of Information Act,” Maribel Perez Wadsworth, president of the USA TODAY Network, said in a statement.
FOIA has been the guiding force behind all kinds of important revelations about government misdeeds. Just lately, we’ve learned that the Trump administration fought against displaying an LGBT rainbow flag on federal property, that a government website accidentally leaked dozens of social security numbers, and that Border Control officers believe they have the right to search pretty much everyone.
The dissenting justices, Breyer, Sonia Sotomayor, and Ruth Bader Ginsberg, disagreed with Gorsuch on what “confidential” information from private businesses should be protected. They wrote in their dissent that exemptions should be used in cases where the data would “cause genuine harm to the owner’s economic or business interests.”
Breyer wrote that he feared the decision “will deprive the public of information for reasons no better than convenience, skittishness, or bureaucratic inertia.”