Tuesday, June 25, 2019

Supreme Court ruling on SNAP data bodes ill for journalists

"The Supreme Court limited . . . access to government records by expanding a federal law's definition of what can be deemed confidential," in a decision Monday, Jonathan Ellis and Richard Wolf report for the Argus Leader in Sioux Falls, South Dakota. "At issue was whether confidentiality, as used in a section of the Freedom of Information Act, means anything intended to be kept secret or only information likely to cause harm if publicized."

Reporter Jonathan Ellis and News Director Cory Myers of the
Argus Leader at the Supreme Court in April. (USA Today photo)
The Argus Leader fought for almost a decade to get Department of Agriculture data on how much money grocers and other food retailers get from the Supplemental Nutrition Assistance Program, formerly known as food stamps. The paper won the initial round in court, but the Food Marketing Institute, a retail trade lobby, appealed, arguing that releasing the records would harm some businesses' ability to compete with other retailers.

The Supreme Court ruled in favor of FMI 6-3, with justices Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor dissenting.

During oral arguments in April, the justices "appeared conflicted between upholding the spirit of the freedom of information law, and the desire to stick to the literal meaning of the word 'confidential,'" Ellis reported then. "FMI and the federal government 'had argued for a broad definition that would leave ample room to keep data from the public. Media organizations and public-interest groups favored a more narrow definition requiring harm, which would make confidentiality apply to fewer FOIA requests," Ellis and Wolf report.

In the decision, 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" the FOIA.

In the dissent, Breyer wrote: "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."

Al Cross, director of the Institute for Rural Journalism and Community Issues and publisher of The Rural Blog, wrote on Twitter, "I fear for freedom of information when Justice Gorsuch writes, 'The USDA tried to meet the paper halfway.' It was nowhere close to halfway! USDA gave the Argus Leader the names of groceries, but not what it needed for a story: how much SNAP money they got."

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