S.D. newspaper seeks transparency in federal food subsidies through SCOTUS-bound FOIA suit

Amicus brief in FMI v. Argus Leader

On April 22, the U.S. Supreme Court will hear oral argument in a Freedom Of Information Act (FOIA), 5 U.S.C. § 552 (LII), case concerning the federal open records law exemption for sensitive competitive information.  Textually, the American access-to-information (ATI) statute, para. (b)(4) ("exemption 4"), exempts from disclosure "trade secrets and commercial or financial information obtained from a person [or legal personality] and privileged or confidential."  State ATI laws have comparable provisions, and interpretation of the federal law is sometimes influential on state courts interpreting similar language. 

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.

Court's strike against Mass. wiretap law for recording police raises bigger questions of 'right to receive,' freedom of information

The "right to receive" expression or information is the long neglected, often doubted, and sometimes maligned sibling of the freedom of expression.  While the First Amendment posits the expression of information that one possesses, the right to receive posits the acquisition of information as an essential prerequisite.  In other words, without access to information, the freedom of expression is meaningless.

By Khairil Yusof (CC BY 2.0).

More broadly conceptualized, the right to receive is an umbrella that covers a great many propositions in civil rights discourse, especially the freedom of information or access to information (FOI or ATI), and including also the right to news-gathering and "citizen journalism"; the right of access to meetings, libraries, and public facilities such as prisons; and, most recently, the right to record police.  Historically, American constitutional law widely rejected propositions in this vein, evidenced by the famously statutory U.S. Freedom of Information Act, 5 U.S.C. § 552, which nonetheless has exerted substantial influence in the advent of ATI as a constitutional and human right elsewhere in the world.

Modern information society has raised new challenges to the American constitutional rejection of a right to receive information and prompted the reexamination of right-to-receive propositions in the courts.  A new appeal has arisen in the logic that access is prerequisite to meaningful democratic engagement through the freedoms to speak, publish, assemble, and petition.  A fair piece of this reexamination has appeared in the case law surrounding the video-recording of police activity, spurred in part by news-media focus on police-involved shootings and subsequent Black Lives Matter and related protests. 

Conventional First Amendment law would have subsumed video-recording under the doctrine of no right to gather the news, thus compelling would-be recorders to obey police orders to stop upon self-serving public-safety rationales, and on pain of civil and criminal justice consequences for failure to comply.  But as electronic media technology has dissolved the distance between recording and public broadcast—the latter unquestionably constitutionally protected by the speech-core prior restraint doctrine—even American courts have been reluctant to find recording devoid of constitutional significance.

In December 2018, the U.S. District Court for the District of Massachusetts held the Massachusetts wiretap statute, a "two-party consent" law (see code; Digital Media Law Project), unconstitutional--facially, though in the limited, articulated circumstances of "the secret recording of police officers performing their duties in public, and the secret recording of government officials doing the same." The court, per Chief Judge Patti B. Saris, held:

On the core constitutional issue, the Court holds that secret audio recording of government officials, including law enforcement officials, performing their duties in public is protected by the First Amendment, subject only to reasonable time, place, and manner restrictions. Because Section 99 [Mass. wiretap] fails intermediate scrutiny when applied to such conduct, it is unconstitutional in those circumstances.

James O'Keefe speaks at 2018 Student Action Summit, West Palm Beach,
Florida, Dec. 21, 2018. By Gage Skidmore (CC BY-SA 2.0).

The ruling came upon joint consideration of two cases involving different partisan affilliations.  In one case, Boston-based civil rights activists K. Eric Martin and René Perez, supported by the ACLU of Massachusetts, sued under civil rights law to combat authorities' investigation of them for openly and secretly recording police activity in pedestrian and traffic stops and at protests.  A second case involved the conservative activist James O'Keefe and his Project Veritas Action Fund (PVA).  PVA sought to effect secret recordings, and not to be criminally prosecuted for them, in Massachusetts in a broader and intriguing list of scenarios:

• "landlords renting unsafe apartments to college students;
• "government officials, including police officers, legislators, or members of the Massachusetts Office for Refugees and Immigrants, to ascertain their positions on 'sanctuary cities';
• "'protest management' activities by both government officials and private individuals related to Antifa protests; and 
• "interactions with Harvard University officials to research its endowment and use of federal funds."

As the court acknowledged, the First Circuit previously joined the majority trend in courts to recognize a constitutional right (subject to reasonable time-place-manner regulation) to record police in public.  Considering the extant threat of prosecution, the court found sufficient merit in plaintiffs' claims to survive ripeness review. 

C.J. Saris

The court then found that application of the law to recording public officials in their official capacity in public places could not survive First Amendment intermediate scrutiny: "narrowly tailored to serve a significant government interest."  Following the First Circuit's example, the court ruled that accountability outweighed slimmer competing interests in public order and officials' personal privacy.  The court left to future cases to determine whether the rule here may be extended to recordings in private venues that are places of public accommodation, such as a restaurant, and to determine who besides police are "government officials."

The case is Martin v. Gross, No. 1:16-cv-11362-PBS (D. Mass. Dec. 10, 2018), available here from Courthouse News Service.  Hat tip to Michael Lambert at Prince Lobel and Christine Corcos at Media Law Prof Blog.

As the courts continue to struggle with right-to-receive cases, rejection of the "right" in American constitutional law becomes increasingly untenable.  A generation of rehearings on the question in the U.S. Supreme Court, and a consequent reshaping of the relevant First Amendment doctrine, seems inevitable.

Research proposes U.S. FOIA reform upon South African example

I've published in the Villanova Law Review, "Access to Information in the Private Sector: African Inspiration for U.S. FOIA Reform" (available from SSRN).  The article appears as part of a symposium edition of the law review (63:5) on FOIA reform.  The special edition commemorates 50 years of the FOIA, which was passed by Congress in 1966 and went into effect in 1967.  I was privileged to present the piece at the Villanova University Charles Widger School of Law in 2017, upon generous invitation to the Norman J. Shachoy Symposium.  Here is the foreword (footnotes omitted):

The Freedom of Information Act of 1966 (FOIA) was a landmark global example of transparency, or access to information (ATI), to ensure democratically accountable governance.  Government had grown in the twentieth century, especially in the new administrative state, and FOIA re-balanced the distribution of power between people and public authority.  Today in the twenty-first century, much power in American society has migrated from the public sector to the private sector, specifically into the hands of corporations.  Even insofar as it works well, FOIA operates only against the conventional state by enabling an individual’s capacity to realize civil and political rights.  FOIA simply was not designed to enable the attainment of human necessities such as education and housing, much less environmental protection and healthcare, especially when the greatest threat to those rights is not government deprivation, but the commercial marketplace.

ATI in Africa is a different story.  Three decades after FOIA, planted among the unprecedented ambitions of the South African constitution was a right to ATI.   And within that right lay an extraordinary new provision.  As guaranteed by the South African constitution and enabling law, a person may request records from a nongovernmental respondent, a private body, if the person can show that the records are “required for the exercise or protection of any rights.”   In other words, South African ATI law jettisoned the historic barrier between public and private sectors.  South African lawmakers were informed by the experience of apartheid, in which the private sector’s complicity had been a vital and brutal partner in state-sanctioned human rights abuse.

Blossoming beyond even the visioning of an apartheid remedy, ATI in the private sector has been construed by the courts in a wide range of applications, from intrafamilial business disputes to environmental conservation.  South African courts have struggled to define “required” and “rights” in applying the ATI law.  But South Africa has demonstrated that ATI in the private sector can work.  The public-private division justifies a change in the terms of access, but not an absolute barrier.  In the last five years, the South African approach has been reiterated in the domestic law of at least five other African countries and in pan-African human rights instruments meant to inspire more domestic adoptions.

In this article, I suggest that the African example inspire U.S. FOIA reform.  In its time, FOIA shone a light into the darkest corners of American politics.  Now America deserves a new approach to restore power to the people in the age of the corporation.

Villanova symposium seeks to rejuvenate 50-year-old U.S. FOIA

Panel 5 on global and comparative perspectives: moderater Fran Burns, professor of practice in the Department of Public Administration at Villanova University; Anamarija Musa, commissioner of information for the Republic of Croatia; Suzanne J. Piotrowski, associate professor in the School of Public Affairs and Administration, Rutgers University-Newark; and the smiling village idiot.  Photo graciously provided by Catherine E. Wilson, associate professor and chair of the Department of Public Administration at Villanova University.

The week before last, the Villanova Law Review at the Villanova University Charles Widger School of Law hosted the Norman J. Shachoy Symposium on Fifty Years Under the Freedom of Information Act, 1967-2017.  I was privileged to participate and owe a debt of gratitude to Villanova for extraordinary hospitality, especially Law Review coordinators Jourdan Simko and Valerie Caras (current masthead); faculty coordinator Professor Tuan Samahon, himself an accomplished teacher and scholar in constitutional law and government transparency and accountability; and Arthur J. Kania Dean and Professor of Law Mark C. Alexander.

Persons with a broad range and wealth of experience and perspective on the federal FOIA participated in the symposium, offering a mind-boggling array of insights into the state of our 50-year-old transparency regime and its prospects for reform.  Professor Samahon aptly opened the conference by asking participants to think about how the course of history might have been different had transparency been the rule of the day before 1967, say, at the time of the Bay of Pigs or the Gulf of Tonkin.  What far-reaching impact would there be of transformed American involvement in those events?  The question points to historic mistakes and lives that might have been saved, yes; but also to unknown alternatives and dangers unwittingly averted.

The U.S. FOIA was among the first of its kind in the modern world and ground-breaking in its scope.  Professor Samahon later in the afternoon, asking a question of my own panel, pointed to the startling success of the FOIA, lest we take it for granted: a beacon of transparency and accountability in the world, the operationalization of an essential condition for a successful democracy, and a feature of government that is sorely wanting in so many countries today, with real human suffering as the price of opacity and corruption.

At the same time, program participants seemed in universal agreement:  Our FOIA is showing its age.  More dynamic transparency instruments in foreign and international law—incubated in the so-called “second-generation” constitutional and human rights systems of Western Europe and emerging democracies around the world—have made vast strides in government transparency and accountability, leaving our FOIA looking, to put it mildly, rather tired and worn around the edges.  Speaking a cutting truth, Judicial Watch attorney Michael Bekesha said in an afternoon panel that to really make FOIA work, the current statute, 5 U.S.C. § 552, needs to be “blown up,” and a new law constructed in its place.  My own talk looked to innovations in FOI, or "access to information" (ATI) in Africa for inspiration.

Villanova video-recorded the day-long program, and the Law Review plans a symposium issue with contributions from the panelists, to be published later next year.  So stay tuned for more on this important subject.  Meanwhile, I will paste below the program, to whet the appetite.

The Villanova Law Review Norman J. Shachoy Symposium:

Fifty Years Under the Freedom of Information Act, 1967-2017

Friday, October 20, 2017, 9 a.m. to 4:30 p.m.

Welcome

• Mark C. Alexander, Arthur J. Kania Dean and Professor of Law, Villanova University Charles Widger School of Law
• Tuan Samahon, Professor of Law, Villanova University Charles Widger School of Law

Panel 1: The “On the Ground” Operation of FOIA

• Susan Long, Associate Professor of Managerial Statistics and Director of the TRAC Research Center, Whitman School of Management, Syracuse University
• Margaret Kwoka, Associate Professor, University of Denver Sturm College of Law
• Moderated by Suzanne J. Piotrowski, Associate Professor, School of Public Affairs and Administration, Rutgers University-Newark

Panel 2: The Press, the Academy, and FOIA

• David McGraw, Deputy General Counsel, The New York Times
• Jason Leopold, Senior Investigative Reporter, BuzzFeed News
• David M. Barrett, Professor of Political Science, Villanova University
• Moderated by Terry Mutchler, Mutchler Lyons

Panel 3: Congressional Oversight of the Executive Branch

• Katy Rother, Senior Counsel, Committee on Oversight and Government Reform, U.S. House of Representatives
• Aram A. Gavoor, Visiting Associate Professor of Law, The George Washington University Law School
• Moderated by Catherine J. Lanctot, Professor of Law, Villanova University Charles Widger School of Law

Panel 4: Resolving FOIA Disputes

• Alina Semo, Director, Office of Government Information Services, National Archives and Records Administration
• Marcia Berman, Assistant Branch Director, Civil Division, Federal Programs Branch, U.S. Department of Justice
• Michael Bekesha, Attorney, Judicial Watch, Inc.
• Moderated by Margaret Kwoka, Associate Professor, University of Denver Sturm College of Law

Panel 5: State and Global Comparative Perspectives

• Anamarija Musa, Commissioner of Information, Republic of Croatia
• Suzanne J. Piotrowski, Associate Professor, School of Public Affairs and Administration, Rutgers University-Newark
• Richard J. Peltz-Steele, Professor of Law, University of Massachusetts School of Law
• Moderated by Fran Burns, Professor of Practice, Villanova University

Exemplary court decision pries open 50-year-old murder investigation

Transparency (FOIA, open records, sunshine) advocates, public information officers, and judges hearing FOIA cases throughout the United States should heed a straightforward and concise decision this spring from the Arkansas Supreme Court, per Justice Rhonda K. Wood, concerning ongoing police investigations.  The case is Arkansas State Police v. Keech Law Firm, P.A., No. 16-545 (Ark. Apr. 20, 2017).  Bonus: the case comes with interesting, if tragic, facts.

In 1963, the murder of Harding College (now University) alumna and English Professor Ruby Lowery Stapleton shocked the community of Searcy, Arkansas.  According to the Harding College Bulletin, Stapleton was believed taken from a self-service laundry in Searcy, Arkansas.  Federal and state law enforcement officers and Harding volunteers searched for her for 11 days, and Harding offered a $1,000 reward for information leading to her detection.  Her body was found by a squirrel hunter in a dry creek bed 15 miles from the laundry.  Stapleton was survived by her husband and two children.

Professor Ruby Stapleton in the Harding College Bulletin, October 1963

Stapleton’s murder remains unsolved.  Fifty years later, in November 2013, family members sought access to the Arkansas State Police case file on the Stapleton murder.  The request spurred brief police re-engagement with the cold case, apparently to no avail.  Police refused access to the file under the ongoing investigation exemption of the Arkansas Freedom of Information Act.  After in camera review of the file, the Arkansas Circuit Court rejected the police theory and ordered the file disclosed.  The Arkansas Supreme Court affirmed.

Ongoing investigation exemptions are a FOIA universal across the state and federal sunshine statutes.  The public policy supporting them is hardly disputed: police investigations require secrecy, lest evidence be compromised or suspects tipped off.  At the same time, transparency is nowhere more urgent a policy priority than when counterpoised with the enormity of state police power to curtail liberty and even life.  This balance proves exceptionally difficult to achieve.  Cases vary broadly in their particulars, and judicial determinations are profoundly fact driven.

Therefore, though the language of ongoing investigation exemptions varies considerably, the question usually boils down to a court’s willingness to defer to, or to second-guess, police discretion.  The Arkansas statute provides a good example of the textual variability, because the statute actually protects only “undisclosed” police records against disclosure.  But that nonsensical oddity has long been construed by the state courts to mean “ongoing investigation,” in conformance with multistate FOIA norms.

In practice, on the whole across the states, courts tend to err on the side of secrecy.  To the frustration of journalists especially, no local judge wants to be responsible for obstructing or derailing a criminal investigation.  Thus law enforcement officials are frequently able to prolong the secrecy surrounding an investigation file well beyond arrest—to charge, to trial, even to exhaustion of appeals.  In fact, criminal investigation files might remain sealed indefinitely, while co-conspirators remain at large—or crimes remain unsolved.

Despite judicial patience that sometimes seems inexhaustible, the imperative of accountability for law enforcement weighs heavily against indefinite secrecy.  The Arkansas Supreme Court quoted a treatise on the Arkansas FOIA co-authored by John J. Watkins, Robert E. Steinbuch, and myself:

Police and prosecutors should not be permitted to apply this exemption as a matter of course until conviction or acquittal, or indefinitely until a charge is brought, if there is no genuine interest in enduring secrecy. To do so would excessively insulate the government against legitimate probes by the public and media into the performance of law-enforcement functions, even apart from the disadvantage to criminal defendants.

Long-cold cases such as the Stapleton murder squarely present this problem.  In reviewing the investigation file in camera in 2014, the Arkansas Circuit Court found “sparse activity” since 1965.  Police cited no documentary evidence of ongoing investigation from 1965 until the filing of the family’s FOIA request.  The Arkansas Supreme Court summed up the case simply: “This is a 54-year-old murder case. No charges have been brought or appear to be imminent.  The victim’s family and the public are entitled to know how the officials in this case, i.e., law enforcement, performed their duties.”

In the course of its concise analysis, the Court reiterated several points of best practices in FOIA compliance and dispute resolution.  These are multistate principles that warrant review.

• A FOIA should be construed liberally to accomplish the objective of transparency.
• Inversely, FOIA exemptions should be construed narrowly to accomplish the objective of transparency.
• As usual in litigation, questions of law and interpretation of a FOIA are subject to de novo appellate review.
• A trial court should conduct in camera review of disputed records to determine the applicability of a statutory exemption from disclosure.

The Arkansas Supreme Court stated moreover another solid practice point that had been lacking in state precedent:  Also as usual in litigation, questions of fact in a FOIA analysis are subject to the more deferential appellate standard of review, clear error.  As the Court observed, application of an ongoing investigation exemption is especially prone to generate a question of fact, as a qualitative, if not quantitative, assessment of purported police investigative activity is part and parcel of the analysis.  In the Stapleton FOIA case, the Court applied the clear error standard to defer to the circuit court’s assessment of the 1965-2014 police file.

As the Arkansas Court wrote, “A finding is clearly erroneous when the appellate court is left with a definite and firm conviction that a mistake has been committed.”  Or as the Seventh Circuit famously wrote in 1988: “To be clearly erroneous, a decision must strike us as more than just maybe or probably wrong; it must, as one member of this court recently stated during oral argument, strike us as wrong with the force of a five-week-old, unrefrigerated dead fish.”  A finding that is not clearly erroneous should be left undisturbed.

Finally, full disclosure and point of privilege:  Justice Wood, who authored this case for the Arkansas Supreme Court, was a law student, and then later a dean, when I taught at the University of Arkansas at Little Rock Law School.  She has shined in her career as lawyer, academic, and judge, undoubtedly owing to her unyielding integrity, character, and intellect—and decidedly owing in no part to me.  Nevertheless, I assert pride by virtue of mere association.

Don't take transparency for granted; FOIAs are always under fire

The 91st General Assembly of the state of Arkansas is winding down; the deadline to file new bills passed two days ago.  Unexceptionally among the states, this flurry of furious lawmaking always entails a range of assaults on the state freedom of information act (FOIA).  In fact, this spring season after the bill deadline is especially hazardous for transparency advocates, because pending bills and so-called "shell" bills, filed but devoid of content, can be quickly amended and rushed through committee with monstrous consequences.  The Arkansas Project, which favors transparency in state government, has written about the FOIA activity in this session, lately here and here.

It happens that this year also has seen the publication of the sixth edition of the treatise, The Arkansas Freedom of Information Act (U. Ark. Press), on which I am privileged to be co-author with Professor Robert Steinbuch and lead author John Watkins, professor emeritus.  Steinbuch has been especially vocal in the media on FOIA, making the case for transparency and holding legislative feet to the fire of public accountability, lest legislators undermine the law.  He penned in jest a cartoon, which he's given me permission to publish here:

Last year the federal FOIA turned 50, and the Swedish Press Freedom Act, oft regarded as the first FOIA in the world, turned 250.  This year, alongside its contemporaries in many states, the Arkansas FOIA turns 50.  Amid all the changes of our technological and populist age--no matter whoever is wiretapping whom--let's hope that Steinbuch's cartoon is only a lampoon at legislators' expense, and not a portent for government transparency and accountability at any level.