SCOTUS overturns FOIA precedent

Jun 24, 2019

For immediate release – June 24, 2019

Contact: Tonda Rush, tonda@nna.org

A June 24 U.S. Supreme Court decision eroded the federal Freedom of Information Act when it ruled in favor of businesses withholding information about the revenues they receive as part of taxpayer-supported programs.

Ruling on behalf of the Food Marketing Institute, a business group representing food retailers, the high court permitted the U.S. Department of Agriculture to withhold information on the revenues received by businesses when they sell food under from the Supplemental Nutrition Assistance Program (SNAP). The ruling, by a 6-3 majority, went against the Sioux Falls (South Dakota) Argus-Leader, which has sought information under FOIA for more than a decade.

The decision concluded a court battle that involved two federal appeals court decisions that the newspaper won, and a legislative skirmish involving the National Newspaper Association, after the grocers’ industry group tried to persuade Congress to make the SNAP records secret. The FOIA case began from efforts by Jonathan Ellis, an investigative reporter with the Gannett Company-owned Argus-Leader, to look into the ways local retailers were outfitting themselves to receive the tax-supported SNAP dollars during the 2008-09 recession.

The Court’s opinion, by Justice Neil Gorsuch, overturned nearly 45 years of FOIA precedent that had required businesses to show they would suffer competitive harm if information held by the federal government were released. Gorsuch said the precedent had been created erroneously and that when businesses consider information confidential and the government obtains it on a promise to keep the information confidential, the Freedom of Information Act cannot force its release.

“NNA is always concerned when the FOIA is cut back,” NNA President Andrew Johnson, publisher of the Dodge County Pionier, Mayville, Wisconsin, said. “In this case, we felt the need of the taxpayers to understand how their money was being spent should have overridden the industry’s desire for secrecy. That was especially true when the information actually came to USDA directly from SNAP users by way of a third-party information collector and not directly from the grocers. While we agree that confidential business information held by the government should be treated with respect, we are now concerned that the wide array of agencies that oversee commerce, trade, agriculture, consumer protection and a host of other important arenas in our country now have a new mandate to withhold information about their work.”

The News Media for Open Government, of which NNA is a member, released a statement here.