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The Supreme Court stamps on freedom of information

June 25, 2019

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.”