The Supreme Court was busy recently, handing down sweeping decisions on everything from gerrymandering to the federal census.
One ruling that didn’t get much attention has similarly far-reaching consequences for American citizens and their right to know how their government is conducting its business.
With its split decision, the court expanded the federal government’s definition of what can be called “confidential” shutting off media and public access to a trove of federal data, none of it sensitive.
The case in question focused on whether confidentiality, as defined in the federal Freedom of Information Act, means information intended to be kept secret or only information likely to cause harm if made public. The court, in a 6-3 vote, accepted the broader definition. Associate Justice Neil Gorsuch wrote the majority decision, with justices Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor dissenting.
The decision is ludicrous on its face. Just because the government means for something to be kept secret doesn’t mean it should be kept hidden from public view.
That is particularly true in the case at hand. The Sioux Falls, South Dakota, Times Argus Leader newspaper filed a Freedom of Information Act request in 2001 with the federal Department of Agriculture seeking data on the Supplemental Nutrition Assistance program, or SNAP, colloquially referred to as food stamps.
While none of the data requested would have revealed personal information, the federal government and the Food Marketing Institute, a trade group representing the 320,000 retailers taking part in the SNAP program, objected. The court, in its ruling, essentially backed the notion that the data somehow contained “trade secrets.”
To be sure, it’s dry stuff. Freedom of Information requests often are, especially when they are seeking data, as this one was. It can be difficult for anyone outside the courts or the media to sit up and pay attention when requests are rejected.
The consequences, however, are real. In this case, the Argus Leader hoped to shed light on two issues surrounding the massive federal program -- namely, the level of fraud in the system and whether it was serving the entire country or leaving so-called “food deserts” in under-represented areas.
The ruling by the court will have the opposite effect, keeping much of the system shrouded in secrecy and setting a precedent that will more than likely be followed by other government agencies. Government accountability is at the heart of why FOIA was created in the first place. This decision hacks away at that by putting commercial interests ahead of those of citizens.
“The court’s decision effectively gives businesses relying on taxpayer dollars the ability to decide for themselves what data the public will see about how that money is spent,” said Maribel Perez Wadsworth, an executive at Gannett, which owns the Argus Leader. “This is a step backward for openness and a misreading of the very purpose of the Freedom of Information Act.”
She’s right. And we cannot rely on future administrations to set things right. While it’s easy to run for office calling for openness and accountability, those promises are quickly shunted aside once candidates become incumbents. And it doesn’t matter whether the office holder is a Democrat or Republican. President Barack Obama’s record on public access to government information was just as poor as that of his predecessor, George W. Bush, or his successor, Donald Trump.
It falls to Congress, which wrote the Freedom of Information Act that went into effect in 1967, to put some teeth back into the law.
Failing to do so, as Breyer noted in his dissent last week, “will deprive the public of information for reasons no better than convenience, skittishness, or bureaucratic inertia.”