Food Mktg. Inst. v. Argus Leader Media, No. 18-481, 2019 WL 2570624 (S.Ct. June 24, 2019) (Gorsuch, J.)

Food Mktg. Inst. v. Argus Leader Media, No. 18-481, 2019 WL 2570624 (S.Ct. June 24, 2019) (Gorsuch, J.)

Re:  Request for Supplemental Nutrition Assistance Program ("SNAP") redemption data from individual grocery retailers

Disposition:  Reversing and Remanding Court of Appeals for the Eight Circuit's affirmance of district court's grant of requester's motion for summary judgment

• Exemption 4:  The Supreme Court of the United States holds that "[a]t 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."  "Because the store-level SNAP data at issue here is confidential under that construction, the judgment of the court of appeals is reversed and the case is remanded for further proceedings consistent with this opinion."  Justice Gorsuch delivers the opinion of the court, and is joined by Chief Justice Roberts, Justice Thomas, Justice Alito, Justice Kagan and Justice Kavanaugh.
   
  The court first notes that "FOIA nowhere defines the term 'confidential.'"  "So, as usual, [the court] ask[s] what that term's 'ordinary, contemporary, common meaning' was when Congress enacted FOIA in 1966."  Citing Webster's Seventh New Collegiate Dictionary 174 (1963), the court finds that "[t]he term 'confidential' meant then, as it does now, 'private' or 'secret.'"  The court then finds that "[c]ontemporary dictionaries suggest two conditions that might be required for information communicated to another to be considered confidential."  Citing to Webster's Third New International Dictionary 476 (1961) and Black's Law Dictionary 370 (rev. 4th ed. 1968), the court finds that "[i]n one sense, information communicated to another remains confidential whenever it is customarily kept private, or at least closely held, by the person imparting it."  Citing to 1 Oxford Universal Dictionary Illustrated 367 (3d ed. 1961), the court finds that "[i]n another sense, information might be considered confidential only if the party receiving it provides some assurance that it will remain secret."  The court considers "[m]ust both of these conditions be met for information to be considered confidential under Exemption 4?"  The court finds that "[a]t least the first condition has to be; it is hard to see how information could be deemed confidential if its owner shares it freely."  "And there’s no question that [the submitter's] members satisfy this condition; uncontested testimony established that [the submitter's] retailers customarily do not disclose store-level SNAP data or make it publicly available 'in any way.'"  "But what about the second condition: Can privately held information lose its confidential character for purposes of Exemption 4 if it’s communicated to the government without assurances that the government will keep it private?"  "As it turns out, there's no need to resolve that question in this case because the retailers before us clearly satisfy this condition too."  "Presumably to induce retailers to participate in SNAP and provide store-level information it finds useful to its administration of the program, the government has long promised them that it will keep their information private."
   
  "Notably lacking from dictionary definitions, early case law, or any other usual source that might shed light on the statute's ordinary meaning is any mention of the 'substantial competitive harm' requirement . . . ."  The court finds that "National Parks' contrary approach is a relic from a 'bygone era of statutory construction.'"  The court relates that, "[n]ot only did National Parks inappropriately resort to legislative history before consulting the statute's text and structure, once it did so it went even further astray[]" by engaging in "a selective tour through the legislative history."  "[The court] cannot approve such a casual disregard of the rules of statutory interpretation."
   
  Justice Breyer, with whom Justice Ginsburg and Justice Sotomayor join, writes separately to concur in part and dissent in part.  Justice Breyer writes that "[t]he majority spells out two conditions, but in [his] view there is a third: Release of such information must also cause genuine harm to the owner's economic or business interests."  Justice Breyer writes that "like the majority, [he] believe[s] that National Parks' harm requirement goes too far."  However, Justice Breyer "cannot agree with the majority's decision to jump to the opposite conclusion, namely, that Exemption 4 imposes no 'harm' requirement whatsoever."  Justice Breyer relates that "'Confidential,' in this sense, conveys something about the nature of the information itself, not just (as the majority suggests) how it is kept by those who possess it."  "Reading 'confidential' in this more restrictive sense is more faithful to FOIA's purpose and how [the court has] interpreted the Act in the past."  Justice Breyer believes that "[t]he whole point of FOIA is to give the public access to information it cannot otherwise obtain."  "So the fact that private actors have 'customarily and actually treated' commercial information as secret . . . cannot be enough to justify nondisclosure."  "After all, where information is already publicly available, people do not submit FOIA requests – they use Google."  "Nor would a statute designed to take from the government the power to unilaterally decide what information the public can view . . . put such determinative weight on the government's preference for secrecy . . . ."  "For the majority, a business holding information as private and submitting it under an assurance of privacy is enough to deprive the public of access."  "But a tool used to probe the relationship between government and business should not be unavailable whenever government and business wish it so."  "The Exemption's focus on 'commercial' or 'financial' information, for instance, implies that the harm caused by disclosure must do more than, say, simply embarrass the information's owner."  "It must cause some genuine harm to an owner's economic or business interests."  Justice Breyer believes that "Exemption 4 can be satisfied where, in addition to the conditions set out by the majority, release of commercial or financial information will cause genuine harm to an owner's economic or business interests."  "(Because it is not at issue, [Justice Breyer] express[es] no opinion as to whether genuine harm to a government interest would suffice.)"  "[Justice Breyer] would remand the case for a determination as to whether, in this instance, release of the information at issue will cause that genuine harm."
   
  Responding to the dissent, Justice Gorsuch writes that "[the dissent] cite[s] exclusively from specialized dictionary definitions lifted from the national security classification context that have no bearing on Exemption 4."  "Really, [the dissent's] submission boils down to a policy argument about the benefits of broad disclosure."  "But as Justice Breyer has noted, when Congress enacted FOIA it sought a 'workable balance' between disclosure and other governmental interests – interests that may include providing private parties with sufficient assurances about the treatment of their proprietary information so they will cooperate in federal programs and supply the government with information vital to its work."
   
• Litigation Considerations, Jurisdiction:  The Supreme Court of the United States holds that the submitter has standing under Article III.  The court finds that "[w]hether or not disclosure of the contested data would cause its member retailers 'substantial competitive harm,' the record before us reveals (and [the requester] does not meaningfully dispute) that disclosure likely would cause them some financial injury."  "As the Eighth Circuit observed, the grocery industry is 'highly competitive,' and disclosure of store-level SNAP data likely would help competitors win business from the [the submitter's] members.'"  The court relates that "[the requester] insists that [the submitter's] injury is not redressable because a favorable ruling would merely restore the government's discretion to withhold the requested data under Exemption 4, and it might just as easily choose to provide the data anyway."  "But the government has represented unequivocally that, consistent with its longstanding policy and past assurances of confidentiality to retailers, it 'will not disclose' the contested data unless compelled to do so by the district court's order."  "A reversal here thus would ensure exactly the relief the Institute requests."  "That is enough to satisfy Article III."