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The nation’s high court on Monday wrestled with whether government spending records from the nation’s largest food safety-net program are records that Congress intended to be released under a key federal transparency law.
Much of the argument in Food Marketing Institute v. Argus Leader Media centered on the meaning and intent of the word “confidential” and its use in the Freedom of Information Act, which Congress passed in 1966 to make government records available to the public.
The Food Marketing Institute, which represents grocers and other retailers, asked the U.S. Supreme Court to review the issue after a lower court ruled that spending records from the Supplemental Nutrition Assistance Program could be released to the public.
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.”
“One of the aims of FOIA was to make information public despite official willingness,” Associate Justice Ruth Bader Ginsburg said.
But Associate Justice Neil Gorsuch noted that the word “confidential” was presumed to mean something different in another section of the FOIA law. “Why should we give the same word two different meanings?” he said.
The case revolves around a FOIA request that the Argus Leader newspaper from Sioux Falls, South Dakota made in 2011. The paper asked the U.S. Department of Agriculture to turn over the annual amounts that taxpayers had paid to every business that participates in SNAP, formerly known as the food stamp program.
USDA, which administers the SNAP program, refused to turn over the information, sparking an eight-year lawsuit that the Supreme Court agreed to review last year.
The Argus Leader has argued that money paid to retailers selling groceries in the SNAP program are the spending records of taxpayer payments. Robert Loeb, a lawyer representing the Argus Leader, told the justices that knowing how the government spends money is “critical information” for the public, and he cited scandals involving the government paying $600 for toilet seats as an example of why government payments for goods and services should be public.
Retailers argued that the taxpayer payments should be treated as confidential commercial information and withheld from the public under an exemption to FOIA that protects trade secrets and confidential financial information. In 1974, a federal appeals court ruled that confidential information could be withheld only if its release was likely to cause substantial competitive harm.
Evan Young, a lawyer who represented FMI, said the 1974 decision requiring a showing of substantial competitive harm ignored the meaning of “confidential” by broadening its scope. Retailers in the SNAP program treat the payments they receive confidentially, which by itself should protect the payments from disclosure.
“Harm is not a part of the word confidential,” Young said.
But Loeb argued the competitive harm language was in keeping with the understanding of “competitive” when Congress drafted FOIA. And he said that Congress had used similar language 29 times since 2001 in other statutes, which showed Congress had given its blessing to the interpretation.
Gorsuch seemed skeptical, pressing Loeb why the use of the word confidential in the law to protect confidential informants was different from the use of confidential to protect business information.
Anthony Yang, an assistant solicitor general who represented the Trump administration, told the justices the government had given retailers assurances for decades that program payments would remain confidential.
“The government is trying to keep its word,” Yang said.
But Ginsburg questioned whether government promises to withhold information would jeopardize the intent of FOIA to disclose government information.
“To say the government can control this by making a promise that it won’t disclose, that seems to run counter to the whole idea of FOIA,” Ginsburg said.
A ruling on the case will come this spring.
USA Today Supreme Court Correspondent Richard Wolf contributed to this report.
This article originally appeared on Sioux Falls Argus Leader: Supreme Court grapples with whether food stamp payments are public records