SUPREME COURT DECISION LIMITS FREEDOM OF INFORMATION REQUESTS INVOLVING GOVERNMENT CONTRACTORS, COLUMBIA JOURNALISM REVIEW REPORTS

WPCNR INFOTELLIGENCE. Special to WPCNR From the Columbia Journalism Review. June 25, 2019:

The Supreme Court stamps on freedom of information
By Jon Allsop

In 2011, the Argus Leader, a newspaper in Sioux Falls, South Dakota, was at work on a project about access to food and potential fraud in the food
stamp program, which retailers administer in cooperation with the government.

Jonathan Ellis, a reporter at the paper, requested data from the
Department of Agriculture, which runs the program at the federal level,
under the Freedom of Information Act, or FOIA. The department said no; the data Ellis requested, it argued, pertained to businesses, and was
confidential. 

In response, the Argus Leader sued; it won, and the government decided not to appeal the verdict. But Ellis still did not get the data.

The Food Marketing Institute, an industry group representing retailers,
picked up the case and took it to an appeals court; when that court, too,
upheld the Argus Leader’s request, the group—backed by the US
Chamber of Commerce—escalated its secrecy fight all the way to the
Supreme Court.
 
The court, which heard arguments in the case in April, issued a ruling yesterday against the Argus Leader.

The Freedom of Information Act has always allowed private government contractors to claim an exemption on confidentiality grounds, but—
under a precedent set in 1974—contractors have had to show that
disclosing the requested information would cause them competitive
harm.

Yesterday, in a 6-3 vote, the Supreme Court ruled to make that test
substantially less strict: going forward, contractors will be able to keep
any “commercial and financial information” they give to the government secret at their discretion, as long as the government gave them an
“assurance” that it will remain private.”

As Justice Stephen Breyer wrote in his dissent, the ruling establishes
certain information as “confidential” not because it is legitimately
sensitive, but because those who possess it want to keep it that way.

The ruling, Breyer fears, “will deprive the public of information for
reasons no better than convenience, skittishness, or bureaucratic inertia.”
 
The Argus Leaderand press-freedom advocates—expressed similar concerns. Cory Myers, the paper’s editorial director, called the verdict 
“a massive blow to the public’s right to know how its tax dollars are being spent, and who is benefiting.”

Ellis, who filed the initial FOIA (and co-wrote yesterday’s Argus Leader
piece on the ruling), tweeted that while the Department of Agriculture’s
denial of his request was never legitimate,

“today, six members of the US Supreme Court used it as a vehicle to wipe out more than 40 years of established FOIA precedent.”

Later, Ellis said he was “truly sorry to my colleagues who work to hold
government accountable that my FOIA request was used to undermine
our work. If I could go back in a time machine and change this I would.”
 
Clearly, none of this is Ellis’s fault.

But experts fear that the court’s ruling will make journalists’ lives more
difficult.

“Businesses in regulated industries will be the main beneficiaries of this decision, while the press and public will have a harder time using the
FOIA to investigate such businesses and their interactions with
government agencies,” Jonathan Peters, a media law professor at the
University of Georgia and CJR’s press freedom correspondent, tells me in an email.

Michael Morisy, founder of MuckRock, a collaborative news site focused on FOIA and transparency, adds that the ruling will be particularly
damaging in a climate of increasing privatization of government services.

“Already, at the state level, we see contractors push the meaning of
confidential trade data to include everything from how much they
charge agencies (and therefore, the public) to the header columns of
spreadsheets that summarize public data,” he tells me in an email.
 
While this is a federal ruling on a federal law, local reporters will not be
spared the impact.

State governments have their own freedom of information laws which
will not directly be affected by the Supreme Court’s decision.

But reporters such as those at the Argus Leader commonly look at the
local footprint of federal programs. And, as Avi Asher-Schapiro, of the
Committee to Protect Journalists, reported ahead of the Argus Leader 
hearing in April, some states lack significant case law around access to
information, and thus often use comparable federal laws as guidance.
 
Ultimately, the Supreme Court’s decision only adds to the mounting
impediments American journalists face at work. Trump’s anti-press
attacks grab the headlines, but subtler trends like the weakening of
transparency laws may have a deeper impact.

“This decision is of a piece with government efforts nationwide to shield
information and events from public view,” Peters says. “It’s offensive to
the basic idea that our democratic system is based on the will of the
people… The Argus Leader case does even more damage to that idea.” 

Comments are closed.