The US Supreme Court ruled 6-3 yesterday that the public does not have the right to know where more than $60 billion in taxpayer money that is part of the Supplemental Nutrition Assistance Program (SNAP) specifically is being spent.
The case was precipitated back in 2011 when the Sioux Falls Argus Leader sued the federal government to obtain, under the Freedom of Information Act (FOIA), data about how much money some 320,000 supermarkets were getting under SNAP, often referred to as food stamps; it was part of reporting projects on food stamp fraud and a look at the nation’s food deserts.
After the federal government lost the case, the Food Marketing Institute (FMI) stepped in and initiated appeals that eventually went to the Supreme Court. The FMI argument was that the release of the information would cause competitive harm to the supermarkets involved.
FOIA does allow the federal government to withhold information that has been gathered from businesses that includes trade secrets or data that the businesses consider to be confidential and that would cause competitive harm if released. The legal arguments were over whether the food stamp information falls into this category.
In his majority opinion, Associate Justice Neil Gorsuch wrote, "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' under the meaning of (FOIA).”
But, in the dissenting opinion, Associate Justice Stephen Breyer wrote, “the whole point of FOIA is to give the public access to information it cannot otherwise obtain … Given the temptation, common across the private and public sectors, to regard as secret all information that need not be disclosed, I fear the majority's reading will deprive the public of information for reasons no better than convenience, skittishness, or bureaucratic inertia.”
Inn comments released after the court’s decision was handed down, Leslie Sarasin, FMI’s president/CEO, said, “We agree with the U.S. Supreme Court’s ruling today that a forty-five-year-old interpretation of what constitutes ‘confidential commercial and financial information’ required reexamination.
“Our industry’s commitment to the shopper remains constant amidst seismic marketplace shifts. The nation’s grocery stores have long kept confidential the amount consumers spend at individual stores whether through payment by cash, credit, debit or the Supplemental Nutrition Assistance Program, or SNAP. This store-level sales data undoubtedly must be considered confidential because its release would provide an unfair advantage to competitors. Legislative history tells us the Freedom of Information Act, or FOIA, was created to shine a light on actions by the government, not on that of private parties.”
The National Grocers Association (NGA) filed amici briefs supporting FMI in the various appeals, and Peter Larkin, NGA’s president/CEO, also had a comment: “NGA welcomes the Supreme Court’s decision that will protect store-level SNAP sales data from public disclosure. NGA has maintained that a retailer’s SNAP store data should remain private because its release would harm competition in the food retail industry. Knowing that their confidential business information will remain protected by the government, independent supermarkets will continue to be strong partners in the SNAP food delivery system, serving the millions of American families who rely on domestic food assistance.”
As would be expected, Argus Leader news director Cory Myers had a different take: "We’re disappointed in today’s outcome … 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 case was precipitated back in 2011 when the Sioux Falls Argus Leader sued the federal government to obtain, under the Freedom of Information Act (FOIA), data about how much money some 320,000 supermarkets were getting under SNAP, often referred to as food stamps; it was part of reporting projects on food stamp fraud and a look at the nation’s food deserts.
After the federal government lost the case, the Food Marketing Institute (FMI) stepped in and initiated appeals that eventually went to the Supreme Court. The FMI argument was that the release of the information would cause competitive harm to the supermarkets involved.
FOIA does allow the federal government to withhold information that has been gathered from businesses that includes trade secrets or data that the businesses consider to be confidential and that would cause competitive harm if released. The legal arguments were over whether the food stamp information falls into this category.
In his majority opinion, Associate Justice Neil Gorsuch wrote, "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' under the meaning of (FOIA).”
But, in the dissenting opinion, Associate Justice Stephen Breyer wrote, “the whole point of FOIA is to give the public access to information it cannot otherwise obtain … Given the temptation, common across the private and public sectors, to regard as secret all information that need not be disclosed, I fear the majority's reading will deprive the public of information for reasons no better than convenience, skittishness, or bureaucratic inertia.”
Inn comments released after the court’s decision was handed down, Leslie Sarasin, FMI’s president/CEO, said, “We agree with the U.S. Supreme Court’s ruling today that a forty-five-year-old interpretation of what constitutes ‘confidential commercial and financial information’ required reexamination.
“Our industry’s commitment to the shopper remains constant amidst seismic marketplace shifts. The nation’s grocery stores have long kept confidential the amount consumers spend at individual stores whether through payment by cash, credit, debit or the Supplemental Nutrition Assistance Program, or SNAP. This store-level sales data undoubtedly must be considered confidential because its release would provide an unfair advantage to competitors. Legislative history tells us the Freedom of Information Act, or FOIA, was created to shine a light on actions by the government, not on that of private parties.”
The National Grocers Association (NGA) filed amici briefs supporting FMI in the various appeals, and Peter Larkin, NGA’s president/CEO, also had a comment: “NGA welcomes the Supreme Court’s decision that will protect store-level SNAP sales data from public disclosure. NGA has maintained that a retailer’s SNAP store data should remain private because its release would harm competition in the food retail industry. Knowing that their confidential business information will remain protected by the government, independent supermarkets will continue to be strong partners in the SNAP food delivery system, serving the millions of American families who rely on domestic food assistance.”
As would be expected, Argus Leader news director Cory Myers had a different take: "We’re disappointed in today’s outcome … 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.”
- KC's View:
-
I have a bias here. I started out a a newspaper reporter, and so I reflexively and instinctively tend to support the journalist position … which I always have in this case.
As I’ve written here before, nobody would be surprised if Walmart is a major beneficiary. But what if we found out that, say, Whole Foods was? That was would be interesting … and not exactly worth keeping a secret.
With apologies to my friends at FMI and NGA and all the supermarkets they represent, as a taxpayer I believe that I have a right to know where my money is being spent. I get twitchy when transparency is resisted by the federal government.
In this case, however, resistance actually has been futile.
