Food Mktg. Inst. v. Argus Leader Media

• Citation: 204 L.Ed.2d 742,139 S.Ct. 2356
• Decision Date: 24 June 2019
• Docket Number: No. 18-481,18-481
• Parties: FOOD MARKETING INSTITUTE, Petitioner v. ARGUS LEADER MEDIA, dba Argus Leader
• Court: United States Supreme Court

139 S.Ct. 2356

204 L.Ed.2d 742

FOOD MARKETING INSTITUTE, Petitioner

v.ARGUS LEADER MEDIA, dba Argus Leader

No. 18-481

Supreme Court of the United States.

Argued April 22, 2019

Decided June 24, 2019

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.

Justice GORSUCH delivered the opinion of the Court.

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 government’s possession. But when does information provided to a federal agency qualify as "confidential"? The Food Marketing Institute says it’s enough if the owner keeps the information private rather than releasing it publicly. The government suggests that an agency’s 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 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.

I

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 store’s 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 FOIA’s 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 agency’s 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 model’s accuracy and utility increase significantly if it includes a rival’s 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, new market entrants could use SNAP data to determine where to build their stores, and SNAP-redemption data could be used to discern a rival retailer’s overall sales and develop strategies to win some of that business too. For its part, Argus Leader offered no fact witnesses and did not dispute that retailers customarily keep this data private or that it bears competitive significance. Instead, the company contended that any competitive harm associated with disclosure would not be substantial. In the end, the district court agreed; while "[c]ompetition in the grocery business is fierce," and while the record supported the conclusion that revealing store-level SNAP data could work some competitive harm, the court could not say that disclosure would rise to the level of causing "substantial competitive harm," and thus ordered disclosure. Argus Leader Media v. United States Dept. of Agriculture , 224 F.Supp.3d 827, 833–835 (S.D. 2016) (emphasis added).

The USDA declined to appeal, but it alerted the retailers who had provided the data so that they could consider intervening to pursue the case further. The Food Marketing Institute, a trade association representing grocery retailers, answered the call. It successfully moved to intervene under Federal Rule of Civil Procedure 24(a) and then filed its own appeal. Meanwhile, the USDA assured the district court that it would not disclose the retailers’ data pending appeal. Before the Eighth Circuit, the Institute argued that the court should discard the "substantial competitive harm" test and apply instead the ordinary public meaning of the statutory term "confidential." The court rejected that argument and affirmed. We granted the Institute a stay of the Eighth Circuit’s mandate and, later, its petition for certiorari. 585 U. S. ––––, 139 S.Ct. 5, 201 L.Ed.2d 1127 (2018) ; 586 U. S. ––––, 139 S.Ct. 915, 202 L.Ed.2d 641 (2019).

II

Before turning to the merits, we confront a threshold challenge to our jurisdiction: Argus Leader questions whether the Institute has standing to pursue this appeal. To show standing under Article III, an appealing litigant must demonstrate that it has suffered an actual or imminent injury that is "fairly traceable" to the judgment below and that could be "redress[ed] by a favorable ruling." Monsanto Co. v. Geertson Seed Farms , 561 U.S. 139, 149–150, 130 S.Ct. 2743, 177 L.Ed.2d 461 (2010).

The Institute satisfies each of these criteria. Whether or not disclosure of the contested data would cause its member retailers "substantial competitive harm," the record before us reveals (and Argus Leader 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 Institute’s members. 889 F.3d at 916. This concrete injury is, as well, directly traceable to the judgment ordering disclosure. And a favorable ruling from this Court would redress the retailers’ injury by reversing that judgment.

Argus Leader insists that the Institute’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. Brief for United States as Amicus Curiae 35; accord, Tr. of Oral Arg. 18–22. A reversal here thus would ensure exactly the relief the Institute requests. That is enough to satisfy Article III. Monsanto , 561 U.S. at 152–153, 130 S.Ct. 2743.

III

A

As we’ve seen, Exemption 4 shields from mandatory disclosure "commercial or financial information obtained from a person and privileged or confidential." 5 U.S.C. § 552(b)(4). But FOIA nowhere defines the term "confidential." So, as usual, we ask what that term’s "ordinary, contemporary, common meaning" was when Congress enacted FOIA in 1966. Perrin v. United States , 444 U.S. 37, 42, 100 S.Ct. 311, 62 L.Ed.2d 199 (1979). We’ve done the same with other undefined terms in FOIA. See, e.g. , Milner v. Department of Navy , 562 U.S. 562, 569, 131 S.Ct. 1259, 179 L.Ed.2d 268 (2011) ; United States v. Weber Aircraft Corp. , 465 U.S. 792, 804, 104 S.Ct. 1488, 79 L.Ed.2d 814 (1984).

The term "confidential" meant then, as it does now, "private" or "secret." Webster’s Seventh New Collegiate Dictionary 174 (1963). Contemporary dictionaries suggest two conditions that might be required for information communicated to another to be considered confidential. In one sense, information communicated to another remains confidential whenever it is customarily kept private, or at least closely held, by the person imparting it. See, e.g. , Webster’s Third New International Dictionary 476 (1961) ("known only to a limited few" or "not publicly disseminated"); Black’s Law Dictionary 370 (rev. 4th ed. 1968) ("intended to be held in confidence or kept secret"). In another sense, information might be considered confidential only if the party receiving it provides some assurance that it will remain secret. See, e.g. , 1 Oxford Universal Dictionary Illustrated 367 (3d ed. 1961) ("spoken or written in confidence"); Webster’s New World Dictionary 158 (1960) ("told in confidence").

Must both of these conditions be met for information to be considered confidential under Exemption 4? At 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 Institute’s members satisfy this condition; uncontested testimony established that the Institute’s retailers customarily do not...