The United States Law Week

Amazon, Walmart, Others May Win FOIA Disclosure Exemption (1)

April 22, 2019, 4:05 PMUpdated: April 22, 2019, 6:50 PM

The U.S. Supreme Court, hearing arguments in a case potentially impacting Amazon, Walmart and other leading retailers, seemed primed to change Freedom of Information Act disclosures in a way that would please business.

A ruling, expected by the end of June, could make it harder to use FOIA requests to access business commercial and financial information when it intersects with government programs and is held by federal agencies.

The court’s conservative majority appeared ready to buck eight federal appeals courts that have for decades narrowly interpreted the word “confidential” in a rule that exempts information from public disclosure.

If the Supreme Court thinks the lower courts got it wrong with that interpretation, why would it be bound by that construction? Justice Brett Kavanaugh asked Orrick’s Robert Loeb, who represents the South Dakota newspaper seeking information about the Supplemental Nutrition Assistance Program from the Agriculture Department.

That reading, originally adopted by the U.S. Court of Appeals for the D.C. Circuit in 1974, has been implicitly adopted by Congress, Loeb said.

Food Marketing Institute, representing grocery retailers fighting the food stamp data request, want the justices to apply confidentiality more broadly. It says disclosure of historical food stamp data could cause its members great harm.

For instance, competitors could change product lineups or allow new entrants to analyze location data, the trade group said in its brief.

A lower court said such claims of harm were “speculative at best.”

The Argus Leader newspaper received some support during the high court argument.

Justice Ruth Bader Ginsburg pointed out that FOIA was intended to encourage disclosure of information, especially when government is reluctant to comply.

Allowing it to withhold the data here seems to run counter to the whole idea of the law, she said.

The court’s decision here is unlikely to affect disclosure of future SNAP information due to a recent statutory amendment for such data.

The case is Food Marketing Institute v. Argus Leader Media, U.S., No. 18-481, argued 4/22/19.

(Updates throughout to add context.)

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com

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