Opinion: Supreme Court’s expanded FOIA confidentiality exemption hurts public need to know

More

The following story is a fiction in order to illustrate how June's Supreme Court ruling in Food Marketing Institute v. Argus Leader Media has just changed the federal taxpayer's right for governmental transparency in its dealings with Big Ag.

Big Meat USA – among the nation's largest pork packers – recently commissioned an internal study to determine how many legs are on each pig it slaughters.  While believing the answer is probably four legs it ordered all its slaughter houses to provide monthly reports on the number of two legged, three legged, four legged, five legged and more than five legged pigs destined for pork products of all kinds.  After a year of survey the final report ended up in the hands of Big Meat USA's executive team who closely observed the results in the hope there were not any of the five legged variety.

Meanwhile USDA – for indescribable reasons – heard about the Big Meat USA survey and were naturally curious – if not downright alarmed – if indeed five legged pigs were being eaten by the public.  So USDA compelled Big Meat USA to provide the survey to governmental analysts for interpretation and possible new federal rules while hoping that if you counted all those legs and divided by four you would come up with exactly the number of pigs Big Meat USA slaughtered during the report period.  Anything else and the proverbial poop could hit the fan.

Because very little remains a secret in governmental circles Hot Dog Publications and its newspaper the Weekly Wienerwurst learned of the study's existence and wanted a look-see.   So it filed a Freedom of Information Request with USDA to compel the government to cough up the data set.

Big Meat USA cried foul saying the study amounted to confidential propriety information and it expected the government to keep the study a secret.  End of story.

So … now we get completely real in June's Supreme Court ruling in Food Marketing Institute v. Argus Leader Media.

As I wrote in a recent blog much was at stake.

The high court has redefined the parameters regarding what information the government can withhold from a FOIA request, specifically using exemption four.

Any reasonable person would say surely the taxpaying public should know that all pork fit to eat should have four legs.  

But that has all changed in the blink of an eye.  The Supreme Court ruling terminated the need for any Big Ag company – or any company for that matter – from needing to show that release of its confidential information to the public would create “substantial competitive harm.”

Under the Supreme Court reworked FOIA exemption four a company need only to:  1) show the financial or commercial information is treated as confidential by the company and 2) the information was given to the government with assurance of privacy.

Fictional Big Meat USA gets to keep its study a secret.

Writing for the majority Supreme Court 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” within the meaning of Exemption 4.” 

But this reasoning is flawed.  For if anything can be considered confidential then everything can be considered confidential and thus beyond the public's need for transparency in how government interacts with business.

Writing for the minority Supreme Court Justice Stephen Breyer admitted as much:

“The majority spells out two conditions, but in my view there is a third: Release of such information must also cause genuine harm to the owner’s economic or business interests...For the majority, a business holding information as private and submitting it under an assurance of privacy is enough to deprive the public of access. But a tool used to probe the relationship between government and business should not be unavailable whenever government and business wish it so. And 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.”

Justic Breyer called for in addition of the conditions required by the court's majority a company need also to show “release of commercial or financial information will cause genuine harm to an owner's economic or business interests.”  

But that no longer is the semi-transparent world in which we once lived.

 Big Ag now will be able to protect more/all information that is disclosed to the feds from the public eye. 

And reporters will need to get used to routine governmental FOIA rubber stamp exemption four replies when it comes to receiving Big Ag information from the feds. 


About Dave Dickey

Dave Dickey

Dickey spent nearly 30 years at University of Illinois at Urbana-Champaign’s NPR member station WILL-AM 580 where he won a dozen Associated Press awards for his reporting. For 13 years, he directed Illinois Public Media’s agriculture programming. His weekly column for the Midwest Center covers agriculture and related issues including politics, government, environment and labor. Email him at dave.dickey@investigatemidwest.org.