US Supreme Court Could Curtail Investigative Reporting

By Avi Asher-Schapiro / CPJ North America Research Associate

HAVANA TIMES – It’s been over eight years since Jonathan Ellis, an investigative reporter at the Argus Leader, filed what he thought was a routine Freedom of Information Act request. He wanted five years of reimbursement data from the Agriculture Department (USDA) Supplemental Nutrition Assistance Program (SNAP)–a program that helps people with low incomes buy food from grocery stores.

USDA refused to release the information on the grounds that it was confidential business information exempt from records requests. “To me it was pretty standard government expenditure information,” Ellis told the Committee to Protect Journalists (CPJ). “I didn’t understand what the big deal was.” 

The Leader, a daily based in Sioux Falls, South Dakota, sued and has been fighting its way through the court system ever since. On April 22, the Supreme Court will finally hear oral arguments in the case, which is known as Food Marketing Institute (FMI) v. Argus Leader, after the USDA stopped fighting the request when it lost a lower court ruling in January 2017 and the retail industry group FMI took over.

The stakes are high, not only for journalists who report on the relationship between businesses and the government, but also for local reporters who often brush up against similar exemptions in local and state-level records laws. If the newspaper loses and the Freedom of Information Act  (FOIA) exemptions expands, press freedom advocates and reporters told CPJ, crucial accountability reporting could become more difficult.

The issue hinges on an exemption that can be used to redact parts of a FOIA request. When journalists ask the federal government to turn over information, either the government or another party to the information can block its release if they argue the information is “confidential”–invoking a FOIA exemption known as Exemption 4. That’s exactly what FMI did. Ellis told CPJ that the data he’s after–detailed records of how much individual grocery stores are paid-out by the SNAP program–would help his reporting on issues from potential benefit fraud to “food deserts” (areas that lack access to nutritious food and grocery stores) in South Dakota. But FMI argues in court documents that those details are “confidential,” and not for public consumption.

As it stands, the FOIA statute does not provide an exact definition of “confidential.” Most courts defer to a 1974 Eighth Circuit ruling, National Parks & Conservation Ass’n v. Morton. The Eighth Circuit favored the disclosure of the information, unless the government or the third party was able to show the release of the information would harm the ability of the government to collect information in the future, or if it would harm the “competitive position” of the third party, often a business. When these cases have gone to court, Adam Marshall, the Knight litigation attorney with the Reporters Committee for Freedom of the Press, told CPJ, an argument must be made that disclosure of the information actually will do some harm. Until now, it hasn’t been enough for the government or the private entity to merely assert that they don’t want the information public. (In the lower court arguments for the FMI case, for example, expert witnesses were called to argue about the precise commercial value of the data Ellis requested).

Although the National Parks test does tend toward disclosure, the status quo hasn’t always led to outcomes that favor reporters. Back in 2010, the San Jose Mercury News described how its “18-month Freedom of Information battle” to obtain diversity statistics that Silicon Valley companies had filed with the U.S. Labor Department was met with an Exemption 4 argument. A number of the firms successfully argued that releasing the information would do the businesses competitive harm, and the Mercury News was unable to report out the story.

“To me, it was most ridiculous argument I’ve ever heard a private company make,” Mike Swift, a then-reporter for the Mercury News who filed the request, told CPJ. But the newspaper, Swift said, made the hard decision to not engage in a costly court battle. In 2011, CNN also ran into exemption 4 roadblocks in its reporting on diversity. Journalists at the Center for Investigative Reporting faced a similar block, and last year successfully sued to obtain the same type of Department of Labor filings that the Mercury News sought.

In the case pending before the Supreme Court, FMI, an industry group representing over 40,000 retail food stores, is trying to win a major change in how these cases are decided by giving the word “confidential” a broader meaning. FMI is proposing the court adopt a plain dictionary definition that would apply to anything companies try to keep from public view.

“They want to keep secret anything that a third party submitting information to the government says is secret,” Marshall said. “It’s a very troubling argument.” FMI is joined in the suit by a number of pro-business groups, including the U.S. Chamber of Commerce.

Attorneys for FMI did not respond to emails from CPJ. An FMI spokesperson directed CPJ to a blog post written by the group’s chief executive, Leslie Sarasin, about the case, in which she argues that “FMI has not attacked FOIA or transparency at all.”

John F. Zabriskie, a partner at the firm Foley & Lardner LLP, who often represents business clients wanting to keep records confidential, told CPJ that the FMI has a strong case. Although the case appears to “pit journalistic interests against a company’s commercial proprietary interests,” he said, “businesses are genuinely motivated by not having their competitively valued information disclosed.” A Columbia Journalism Review breakdown of FOIA shows businesses predominantly file the most requests.

The Reporters Committee for Freedom of the Press, along with other press freedom groups, submitted an amicus brief to the court in March, arguing that it should keep the existing National Parks test in place. They contend that FMI’s argument contradicts 2016 FOIA amendments Congress passed that instructed agencies to release all information unless there was “foreseeable harm” in doing so. The Argus Leader, for its part, is arguing that a win for FMI “effectively eviscerates FOIA of its purpose.”

Claire Brown, a staff writer for the non-profit website, The New Food Economy, said if the industry groups were to win, “it would mean less and less information for reporters.” Brown often covers federal regulatory agencies and said she relies heavily on this kind of data for her work. She can quickly tick off examples where she’s brushed up against private business information in the hands of the government. She’s reported on Occupational Safety and Health Administration data on corporate workplace injuries, menus offered by private contractors at the federal prisons, and USDA inspections at hog slaughtering plants. Often, agencies invoke Exemption 4, she told CPJ, to block her reporting.

Even if local reporters don’t tangle with Exemption 4 directly, the Supreme Court weighing in on the topic could trickle into their work, said Sam Jones, an attorney in Iowa who does open records litigation for the Iowa Gazette. The Iowa public hospital association, for example, recently blocked the Gazette’s request for release of pricing information for a report into the costs associated with its contracts with outside vendors.

Although the Supreme Court case wouldn’t directly hold sway over Iowa’s own records laws, it would have an impact, Jones told CPJ. “We don’t have the benefit of a huge cannon of case law here, we often look to other jurisdiction and federal statutes that are similar,” he said.

The Argus Leader case comes at a particularly portentous moment: as private industry and government are increasingly entwined, Aaron Mackey, an attorney with the Electronic Frontier Foundation, told CPJ. News outlets across the U.S. have reported recently on how companies that do business with the government have asked officials to sign non-disclosure agreements and to give them a heads-up on FOIA requests that may involve business records. In that climate, a court ruling that would block journalistic access to the kinds of records at issue in the FMI case may strike a significant blow to press freedom. “It’s a growing threat,” Mackey said. “It could start getting in the way of basic reporting.”