The following editorial was published by the Waterloo-Cedar Falls Courier on July 7:
The U.S. Supreme Court just slammed the door shut on the public’s right to know how businesses are fulfilling government contracts, reversing 50 years of precedents under the Freedom of Information Act.
Congress needs to reopen it again, even after reaffirming the availability of records that wouldn’t “harm” businesses in the FOIA Amendments of 2016.
Eight years ago, the Sioux Falls Argus Leader sought records from the U.S. Department of Agriculture regarding payments to South Dakota grocery stores and other companies involved in the Supplemental Nutrition Assistance Program, or SNAP, commonly called food stamps.
The Argus Leader asked the USDA, which administers the program, for the name, address, store type and annual SNAP sales figures from 2005 to 2010. Nationally, SNAP provides 40 million Americans with an average monthly assistance of nearly $125 — $70 billion total.
“The crux of the government program is that the government — with taxpayer dollars — buys groceries for low-income families from stores that wish to do business under the program,” the Argus Leader stated.
It added, “The public has a right to know how much taxpayer money grocers, gas stations, big box retailers and others get by participating in the federal food stamp program.”
But the USDA wouldn’t provide SNAP sales figures, citing Exemption 4 of the FOIA regarding confidential business information with the potential to harm the company.
However, after the USDA surveyed all 321,988 SNAP retailers, it found only a few hundred objected to releasing their food stamp sales numbers.
The USDA lost, but the Food Marketing Institute, a trade group representing 40,000 retailers, picked up the baton, along with the U.S. Chamber of Commerce and other business groups.
In a 6-3 decision, the U.S. Supreme Court reversed that decision with Justice Elena Kagan joining the five conservatives. The majority cited the failure of Exemption 4 of the FOIA to adequately define “confidentiality.”
“We cannot approve such a casual disregard of the rules of statutory interpretation,” wrote Justice Neil Gorsuch.
Justice Stephen Breyer countered that the ruling “will deprive the public of information for reasons no better than convenience, skittishness, or bureaucratic inertia.”
In fact, Congress was pretty specific in the FOIA Amendments of 2016 about its intent, including a requirement “that federal agencies disclose requested information unless the agency reasonably foresees the disclosure of requested records or documents resulting in harm to a protected interest under FOIA.”
The U.S. Supreme Court ruling upended similar intent in a 1974 U.S. Eighth Circuit Court of Appeals decision in National Parks & Conservation Association v. Morton, the former standard, that disclosure of information would be made available unless the government or a third party, usually the business involved, showed it would harm “the competitive position” of the third party or the ability of the government to collect information.
The high court decision has numerous ramifications about accessing information, particularly with the privatization of many government services — from prisons to Medicaid — or government contracts for voting machines, surveillance technology and facial recognition, database management and consulting on environmental, health and safety issues.
“They want to keep secret anything that a third party submitting information to the government says is secret,” said Adam Marshall, an attorney with the Reporters Committee for Freedom of the Press.
The decision could reverberate on state levels. The Cedar Rapids Gazette has sought information from the University of Iowa Hospitals and Clinics concerning outsourcing its AirCare helicopter ambulance service to Air Methods, a for-profit corporation. The hospital, a public entity, won’t say how much money it’s getting from the company amid patient complaints about exorbitant costs.
An Osceola man filed a complaint with the Iowa Attorney General’s Office after being charged $35,000 for a 40-mile flight to Mercy Medical Center in Des Moines in 2014, which he wasn’t sure was necessary. The hospital gets 800 to 1,000 air transports annually.
“What’s at stake in this case is whether private companies’ dealings with the federal government will be further cloaked in secrecy,” said Jonathan Ellis, the Argus Leader reporter who sought the food stamp information.
“If we can’t get access to information submitted to government by private companies, then it will be difficult to know whether the government is regulating the private sector effectively, or whether private vendors are carrying out public functions responsibly.”
This isn’t about disclosing the secret formula of Coca Cola or other proprietary information. Instead, the Supreme Court decision raises the possibility that no outside entity — media or public watchdogs — could review the relationship of government and business interests, a step toward crony capitalism.
We hope noted whistleblower Sen. Charles Grassley, R-Iowa, the Senate Finance Committee chairman, will take the lead in revisiting the FOIA to make Congress’ intent abundantly clear to the court.