__ U.S. __, 18-481, Food Marketing Institute v. Argus Leader Media
|Citation:||__ U.S. __, 139 S.Ct. 2356, 204 L.Ed.2d 742, 27 Fla.L.Weekly Fed. S 1045|
|Opinion Judge:||GORSUCH, Justice.|
|Party Name:||FOOD MARKETING INSTITUTE, Petitioner v. ARGUS LEADER MEDIA, dba Argus Leader|
|Attorney:||Evan A. Young, Austin, TX, for the petitioner. Anthony A. Yang for the United States as amicus curiae, by special leave of the Court, in support of the petitioner. Robert M. Loeb, Washington, DC, for the respondent. Jon E. Arneson, Sioux Falls, SD, Robert M. Loeb, Thomas M. Bondy, Samuel Harbourt...|
|Judge Panel:||GORSUCH, J., delivered the opinion of the Court, in which ROBERTS, C. J., and THOMAS, ALITO, KAGAN, and KAVANAUGH, JJ., joined. BREYER, J., filed an opinion concurring in part and dissenting in part, in which GINSBURG and SOTOMAYOR, JJ., joined. Justice BREYER, with whom Justice GINSBURG and Just...|
|Case Date:||June 24, 2019|
|Court:||United States Supreme Court|
Argued April 22, 2019
Respondent Argus Leader Media filed a Freedom of Information Act (FOIA) request with the United States Department of Agriculture (USDA), seeking the names and addresses of all retail stores that participate in the national food-stamp program— known as the Supplemental Nutrition Assistance Program (SNAP)— and each stores annual SNAP redemption data from fiscal years 2005 to 2010. The USDA declined to disclose the store-level SNAP data, invoking FOIAs Exemption 4, which shields from disclosure "trade secrets and commercial or financial information obtained from a person and privileged or confidential," 5 U.S.C. § 552(b)(4). Argus Leader sued the USDA. Following circuit precedent, the District Court employed the "competitive harm" test, under which commercial information cannot be deemed "confidential" unless disclosure is "likely ... to cause substantial harm to the competitive position of the person from whom the information was obtained." The court agreed that revealing store-level SNAP data could work some competitive harm, but it could not say that disclosure would cause "substantial competitive harm," and thus ordered disclosure. Petitioner Food Marketing Institute, a trade association representing grocery retailers, intervened and filed an appeal. The Eighth Circuit affirmed, rejecting the Institutes argument that the court should discard the "substantive competitive harm" test in favor of the ordinary public meaning of the statutory term "confidential."
1. The Institute has standing to appeal. Disclosure of the contested data would cause its members some financial injury in the highly competitive grocery industry; this concrete injury is directly traceable to the judgment ordering disclosure; and a favorable ruling from this Court would redress the retailers injury by reversing that judgment. Pp. 2362 - 2363.
2. 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 Exemption 4s meaning. Pp. 2362 - 2366.
(a) At the time of FOIAs enactment, the term "confidential" meant "private" or "secret." Contemporary dictionaries suggest two conditions that might be required for information communicated to another to be considered confidential: when the information is customarily kept private, or at least closely held, by the person imparting it; and when the party receiving the information provides some assurance that it will remain secret. At least the first of these conditions must be met; it is hard to see how information could be deemed confidential if its owner shares it freely. But the Court need not resolve whether both conditions are necessary because both conditions are clearly met here. Uncontested testimony established that the Institutes retailers customarily do not disclose store-level SNAP data or make it publicly available. And to induce retailers to participate in SNAP and provide store-level information, the government has long promised retailers that it will keep their information private. Early courts of appeals confronting Exemption 4 interpreted its terms in ways consistent with these understandings. Pp. 2362 - 2364.
(b) Argus Leader pins its hopes on the "substantial competitive harm" requirement from the D. C. Circuits decision in National Parks & Conservation Assn. v. Morton, 498 F.2d 765. There, the court inappropriately resorted to legislative history before consulting the statutes text and structure and relied heavily on statements from witnesses in congressional hearings years earlier on a different bill that was never enacted into law. Unsurprisingly, National Parks has drawn considerable criticism over the years, and even the D. C. Circuit has distanced itself from the decision. Pp. 2363 - 2365.
(c) Argus Leaders attempt to salvage National Parks is unpersuasive. First, it rearranges the text of Exemption 4 to create a phrase that does not appear in the statute: "confidential commercial information." It suggests that this synthetic term mirrors a preexisting common law term of art that covers only information whose release would lead to substantial competitive harm, but points to no treatise or case decided before Exemption 4s adoption that assigned any such meaning to the terms actually before the Court. Nor will this Court ordinarily imbue statutory terms with a specialized common law meaning when Congress has not itself invoked the common law terms of art associated with that meaning. See, e.g., Bruesewitz v. Wyeth LLC, 562 U.S. 223, 233-235, 131 S.Ct. 1068, 179 L.Ed.2d 1. Alternatively, the company suggests that Congress effectively ratified its understanding of the term "confidential" by enacting similar phrases in other statutes in the years since National Parks was decided. But the ratification canon applies when Congress re-enacts the same statute using the same language, and Congress has never re-enacted Exemption 4. Finally, Argus Leader urges the Court to adopt a "substantial competitive harm" requirement as a matter of policy because it believes FOIA exemptions should be narrowly construed. But the Court cannot arbitrarily constrict Exemption 4 by adding limitations found nowhere in its terms. Pp. 2365 - 2366.
889 F.3d 914, reversed and remanded.
GORSUCH, J., delivered the opinion of the Court, in which ROBERTS, C. J., and THOMAS, ALITO, KAGAN, and KAVANAUGH, JJ., joined. BREYER, J., filed an opinion concurring in part and dissenting in part, in which GINSBURG and SOTOMAYOR, JJ., joined.
[139 S.Ct. 2358] Evan A. Young, Austin, TX, for the petitioner.
Anthony A. Yang for the United States as amicus curiae, by special leave of the Court, in support of the petitioner.
Robert M. Loeb, Washington, DC, for the respondent.
Jon E. Arneson, Sioux Falls, SD, Robert M. Loeb, Thomas M. Bondy, Samuel Harbourt, Randall C. Smith, Easha Anand, Melanie Hallums, Orrick, Herrington &, Sutcliffe LLP, Washington, DC, for respondent.
Thomas R. Phillips, Gavin R. Villareal, Evan A. Young, Scott A. Keller, Stephanie F. Cagniart, Ellen Springer, Baker Botts L.L.P., Austin, TX, for petitioner.
[139 S.Ct. 2360] Congress has instructed that the disclosure requirements of the Freedom of Information Act do "not apply" to "confidential" private-sector "commercial or financial information" in the governments possession. But when does information provided to a federal agency qualify as "confidential"? The Food Marketing Institute says its enough if the owner keeps the information private rather than releasing it publicly. The government suggests that an agencys promise to keep information from disclosure may also suffice to render it confidential. But the courts below imposed a different requirement yet, holding that information can never be deemed confidential unless disclosing [139 S.Ct. 2361] it is likely to result in "substantial competitive harm" to the business that provided it. Finding at least this "competitive harm" requirement inconsistent with the terms of the statute, we reverse.
This case began when Argus Leader, a South Dakota newspaper, filed a FOIA request for data collected by the United States Department of Agriculture. The USDA administers the national food-stamp program, known as the Supplemental Nutrition Assistance Program. Argus Leader asked the USDA for the names and addresses of all retail stores that participate in SNAP and each stores annual SNAP redemption data from fiscal years 2005 to 2010, which we refer to as "store-level SNAP data." The USDA tried to meet the paper halfway. It released the names and addresses of the participating stores but declined to disclose the requested store-level SNAP data. As relevant here, the USDA invoked FOIAs Exemption 4, which shields from disclosure "trade secrets and commercial or financial information obtained from a person and privileged or confidential." 5 U.S.C. § 552(b)(4).
Unsatisfied by the agencys disclosure, Argus sued the USDA in federal court to compel release of the store-level SNAP data. Like several other courts of appeals, the Eighth Circuit has engrafted onto Exemption 4 a so-called "competitive harm" test, under which commercial information cannot be deemed "confidential" unless disclosure is "likely ... to cause substantial harm to the competitive position of the person from whom the information was obtained." Argus Leader Media v. United States Dept. of Agriculture, 889 F.3d 914, 915 (2018) (internal quotation marks omitted). So the district court held a two-day bench trial to determine whether disclosure of the store-level SNAP data would cause substantial competitive harm to participating retailers.
At trial, witnesses for the USDA testified that retailers closely guard store-level SNAP data and that disclosure would threaten stores competitive positions. They explained that retailers use models of consumer behavior to help choose new store locations and to plan sales strategies. Competitors estimated sales volumes represent an important component of these models and can be time consuming and expensive to generate. And a models accuracy and utility increase significantly if it includes a rivals actual sales data rather than mere estimates. So disclosure of store-level SNAP data could create a windfall for competitors: Stores with high SNAP redemptions could see increased competition for SNAP customers from existing competitors,...
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