Supreme Court limits access to government records in loss for Argus Leader, a member of the USA TODAY Network




WASHINGTON – The Supreme Court limited public and media access to government records Monday by expanding a federal law's definition of what can be deemed confidential.

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.

Associate Justice Neil Gorsuch wrote the 6-3 decision, with Justices Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor dissenting.

A retailers trade group, the Food Marketing Institute, and the federal government 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.

In 2011, the case began with a request that the Argus Leader newspaper made under the Freedom of Information Act. The Sioux Falls, S.D., newsroom is part of the USA TODAY Network.

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The Argus Leader asked the Department of Agriculture, which administers the Supplemental Nutrition Assistance Program, to release the annual amounts taxpayers paid to more than 320,000 retailers participating in the program.

Data were requested as part of the newsroom's ongoing projects into food access deserts and fraud in the food stamp program.

"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 (FOIA)," Gorsuch ruled.

Breyer differed by noting that "the whole point of FOIA is to give the public access to information it cannot otherwise obtain."

"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," Breyer said.

"We’re disappointed in today’s outcome, obviously," Argus Leader news director Cory Myers said. "This is a massive blow to the public’s right to know how its tax dollars are being spent, and who is benefiting. Regardless, we will continue to fight for government openness and transparency, as always."

After the Agriculture Department refused to release the data,the Argus Leader sued. The case wound its way to the U.S. Court of Appeals for the Eighth Circuit and back to federal district court in South Dakota, where a judge ruled the information should be released.

The government did not appeal that ruling, but the Food Marketing Institute intervened and appealed again to the Eighth Circuit. The appeals court ruled against the Institute in 2018, prompting its request to the Supreme Court to hear the case.


A key issue in the case, which was argued April 22, was whether a 1974 ruling from the U.S. Court of Appeals for the District of Columbia Circuit had twisted FOIA beyond Congress' original intent.

Enacted eight years earlier in 1966, FOIA included an exemption allowing the government to withhold information it obtained from businesses that include trade secrets or financial data considered confidential. But the 1974 ruling narrowed what was considered confidential to records that, if released, would cause substantial competitive harm.


The Food Marketing Institute argued the ruling overstepped congressional intent and asked the Supreme Court to allow businesses to decide the need for confidentiality. The group was supported by other industry groups, including the U.S. Chamber of Commerce.

The Argus Leader argued that records of government spending, including taxpayer payments to food stamp retailers, were at the heart of why Congress created FOIA. It also argued that Congress had acquiesced to the 1974 ruling's standard by failing to change it during numerous reviews of FOIA since 1974.

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