|Amicus brief in FMI v. Argus Leader|
Plaintiff below, Respondent Argus Leader Media publishes the Argus Leader, the largest-circulation newspaper in South Dakota, based in Sioux Falls, and a member of the USA Today newspaper network. In investigation of federal food subsidies, the Leader invoked the FOIA to find out how much taxpayer money is paid by the U.S. Department of Agriculture (USDA) to individual food retailers. The USDA refused on a number of grounds, including exemption 4. Joining the USDA in resisting disclosure is a trade association of food retailers, Petitioner Food Marketing Institute (FMI).
The Eighth Circuit, per U.S. Circuit Judge Jane L. Kelly, upheld the trial court's ruling in favor of the newspaper. Argus Leader Media v. USDA, 889 F.3d 914 (8th Cir. 2018). The court wrote:
Applying the law to the facts, we find no basis for reversal. The trial evidence showed that the grocery industry is highly competitive, but is already rich with publically-available data that market participants (and prospective market entrants) use to model their competitors' sales. The evidence shows that releasing the contested data is likely to make these statistical models marginally more accurate. But the evidence does not support a finding that this marginal improvement in accuracy is likely to cause substantial competitive harm. The USDA's evidence showed only that more accurate information would allow grocery retailers to make better business decisions.
On appeal (No. 18-481: SCOTUSblog, Oyez), the parties dispute how to interpret exemption 4. The Eighth Circuit followed the lead of the U.S. Supreme Court to define "confidential" as risking "substantial competitive harm." Even within that test, lower courts have divided over the requisite degree of certainty to bring the exemption into play, from the reasonable possibility of advantage to a competitor to a near certainty that economic loss will result. FMI would instead prefer that the Court embrace a much broader exemption: what FMI calls the "ordinary meaning" of the word "confidential," that is, simply, exempting from disclosure information that a company has not disclosed.
I signed on in support of Argus Leader Media to an Amicus Brief of FOIA and First Amendment Scholars, organized by the First Amendment Clinic at Cornell Law School, by students under the leadership of faculty including Assistant Director Cortelyou C. Kenney, and for my part via FOIA expert Professor Margaret Kwoka at the University of Denver Sturm College of Law. The brief asserts:
Petitioner [FMI] argues for sweeping changes to FOIA’s test for disclosure of confidential commercial information under Exemption 4 used by all Courts of Appeals for the past forty-four years, beginning with National Parks in 1974. Acknowledging that FOIA does not define the term “confidential,” the National Parks court held that the statute requires disclosure— notwithstanding a claim that the withheld records are confidential commercial information—absent a showing of either (1) impairment of the government’s ability to obtain necessary information in the future; or, as relevant here, (2) infliction of substantial competitive harm to the information submitter. 498 F.2d 765, 770 (D.C. Cir. 1974). That test has withstood the test of time. Any change should come from Congress, rather than this Court, because of the unusual context of FOIA, and the unusual context of this case.
Saliently, to my mind, the brief demonstrates congressional approval of the "substantial harm" test, and the FOIA ought not be reinterpreted contrary to its laudable aim of transparency.
As I have written recently in another context, the greatest threat around the world today to transparency and accountability might come from the private sector as surely as from the public sector. There should be no question as to the need to maximize transparency where the two meet. While FMI lobbies Congress and works through a Food PAC and "political education fund," certainly taxpayers are entitled to know what public subsidies are being delivered to FMI constituents.
Other signatories on the brief are: Ashutosh A. Bhagwat, Martin Luther King, Jr. Professor of Law, University of California, Davis School of Law; Michael C. Dorf, Robert S. Stevens Professor of Law,
Cornell Law School; Heidi Kitrosser, Professor of Law, University of Minnesota Law School; Seth F. Kreimer, Kenneth W. Gemmill Professor, University of Pennsylvania School of Law; Margaret B. Kwoka, Associate Professor with Tenure, University of Denver Sturm College of Law; James O’Reilly, Retired Professor, University of Cincinnati College of Law; and Nelson Tebbe, Professor of Law, Cornell Law School.