A U.S. Supreme Court decision this week negates precedent dating back more than 40 years, draws the shades tighter on government transparency and will make it more difficult to ferret out public corruption — Congress can correct that and should muster the will to carry that out.
The misguided ruling was issued in a case that began when the Argus Leader, a South Dakota newspaper, was denied a request eight years ago for data from the U.S. Department of Agriculture about its Supplemental Nutrition Assistance Program. A reporter at the newspaper requested the data to facilitate an investigation of potential fraud of the program formerly known as food stamps and identify food deserts: areas that lack access to nutritious food and grocery.
The federal agency balked on the basis the information requested was confidential and exempted by the Freedom of Information Act from release. It lost in the lower court and was ready to relent in January 2017, but the Food Marketing Institute picked up the torch on behalf of grocers and carried it to the appellate court, where a second loss was tallied, and on to the U.S. Supreme Court, which sided with regulated businesses at the public’s expense.
Until this week most courts deferred to a 1974 ruling that required the government or a third party required to report the information sought by a request to show two things. It was required that information requested be considered confidential and that its disclosure would either harm the government’s ability to collect it or the competitive position of the business required to report it.
The Supreme Court essentially negated the second half of that equation, allowing the government to deny requests only on the basis that information sought is deemed confidential. The Electronic Frontier Foundation notes this opinion comes at a time when companies that do business with the government have asked more frequently to sign nondisclosure agreements and provide notice of any FOIA requests.
The Freedom of Information Act presently provides no exact definition for confidential. Congress could — and should — rectify that and reconcile this week’s decision and the exemption used to shield from public inspection information reported by regulated businesses.
The Freedom of Information Act is a valuable tool that provides public access to government documents. It is a key that unlocks doors to information that sheds a light on how government operates. Any attempt to limit the scope of that act or access to government records must be turned back at every turn.