![]() ![]() 1974), which eight circuits subsequently adopted. ![]() Circuit’s test in Nat’l Parks & Conservation Ass’n v. The Eighth Circuit affirmed, relying on the D.C. The USDA gave notice to the retailers that it would not appeal, at which point Food Marketing Institute intervened to appeal on the USDA’s behalf. After a two-day trial, the District Court disagreed and ordered disclosure. At the District Court, USDA presented evidence that the store-level data would provide a competitive advantage to other companies if released publicly. While much SNAP data is publicly available, this store-level information is not. As part of an investigation of food-stamp fraud, the newspaper filed a FOIA request with the USDA for data showing the amount of Supplemental Nutrition Assistance Program (SNAP)-formerly the Food Stamp Program-redemptions at individual stores. Argus Leader is a newspaper in Sioux Falls, South Dakota. Food Marketing Institute is a trade association representing retailers who operate tens of thousands of retail food stores. This case addresses the scope of this exemption.įirst, some background. The Supreme Court’s Public Information Office granted me a press pass to cover the arguments for this blog, since the case involves trade-secrets issues.Īs I discussed previously, the FOIA contains an exemption for “trade secrets and commercial or financial information obtained from a person and privileged or confidential,” which does not need to be disclosed publicly. Argus Leader Media, a case involving an exemption to the Freedom of Information Act (FOIA). Yesterday, the Supreme Court held oral argument Food Marketing Institute v. Thus, any company providing proprietary information to the federal government should first receive that assurance. But importantly, under the new test, the government must provide an assurance of privacy before Exemption 4 applies. This opinion aids companies who provide proprietary information to the federal government, as it removes the most troublesome hurdle to exempting that information from FOIA disclosure. Because that law required showing competitive harm, Argus Leader argued, Exemption 4 required the same.Īrgus Leader points to no treatise or case decided before Exemption 4’s adoption that assigned any such meaning to the terms actually before us: “commercial or financial information privileged or confidential.” So even accepting (without granting) that other phases may carry the specialized common law meaning Argus Leader supposes, the parties have mustered no evidence that the terms of Exemption did at the time of their adoption. Argus Leader argued that by referring to confidential commercial information, the statue used a term of art that required treating this information under the then-existing trade-secrets law. Instead, the Court adopted a more permissive test:Īt least where commercial or financial information is both customarily and actually treated as private by its owner and provided to the government under an assurance of privacy, the information is “confidential” within the meaning of Exemption 4.ĭuring oral argument, trade secrets came up in the context of one of the appellee’s attempts to justify the competitive-harm test. 5 USC § 552(b)(4).Īs I suspected, the majority (Justices Gorsuch, Roberts, Thomas, Alito, Kagan, and Kavanaugh) answered this question in the negative and abdicated the competitive-harm requirement. In short, this case addressed whether satisfying the Freedom of Information Act’s (FOIA) exemption for “trade secrets and commercial or financial information obtained from a person and privileged or confidential,” requires a showing of substantial competitive harm. Today, the Court entered its opinion, authored by Justice Gorsuch. I covered the oral argument for this blog. As I’ve written about previously (see here and here), the Supreme Court heard argument earlier this year in a case that implicates trade-secrets issues, Food Marketing Institute v. ![]()
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