Will corporations decide what information the public gets?
Recently, the Supreme Court heard oral arguments in a case that will probably fly under most people’s radar, but which may have dire consequences for the public, the press and even the free market.
The case, Food Marketing Institute (FMI) v. Argus Leader, began eight years ago when a reporter for the Argus Leader, a South Dakota newspaper, submitted a Freedom of Information Act request to the U.S. Department of Agriculture asking for information about revenue that retailers receive from the Supplemental Nutrition Assistance Program (SNAP), the federal food stamp program paid for by taxpayers.
All 50 states and over 100 countries have freedom of information laws that were inspired by and based on the United States Freedom of Information Act (FOIA), adopted by Congress in 1966. All stand for the principle that the public is entitled to access to information held by its government.
But if FMI has its way, private companies, not the government, will decide what the public gets to know.
The FOIA is designed to inform the public and provide a check against corruption. It exempts some information from being disclosed, including commercial or financial information about companies that is “privileged or confidential.’’
Although the law doesn’t define “confidential,” for 40 years, the courts have generally held that unless a business could demonstrate release of information would cause it competitive harm, the public has the right to the information.
This test has been applied by lower courts across the country for decades because it is workable and consistent with the objectives of the FOIA.
The Supreme Court is being asked to dramatically limit the definition of “confidential” in a way that would let the corporate interest decide what can and cannot be disclosed to the public.
Undermining the public’s right to know places obstacles in the way of a free press, limits checks on government waste, puts public health and safety at risk and creates market inefficiencies that harm the businesses that are arguing for greater secrecy.
If the court throws out the current definition of confidential information, journalists reporting on the cozy relationship businesses have with their regulators (think Boeing and the FAA or the oil and coal industries and the Interior Department and) will have a harder time telling their stories to the public. And the public, in turn, will have a harder time holding government accountable.
The SNAP data in question may well be used to uncover food-stamp fraud by revealing patterns of waste and abuse that cost taxpayers untold amounts of money . Yet, if the court decides to let companies dictate what is “confidential,” inefficient or fraudulent government contractors could escape public scrutiny while still profiting from taxpayer dollars, as can companies that discriminate against women or people of color.
The decision will implicate public health and safety, by keeping secret vital but potentially damning information about faulty medical devices, dangerous prescription drugs, contaminated food, racially biased facial recognition software and more; potentially putting lives at risk.
FMI and other corporate interests arguing in favor of greater secrecy may also come to regret their decision. Businesses make almost 40 percent of all FOIA requests, far more than any other group of requesters, including journalists, law firms and nonprofits. Its interests include obtaining records that will help them comply with laws and regulations, accessing information that can help them shape public policy and getting information about their competitors that would allow them to offer lower prices to the government. Indeed, limiting the free flow of information may result in inefficiencies that undermine free markets and competition.
Companies already have a strong hand when it comes to interacting with the government. Federal agencies are already required to give businesses a heads up before responding to FOIA requests that may implicate their data. If FMI has its way, the only information about businesses that will be accessible by FOIA will be the information a company wants released. Everything else will remain shrouded in secrecy.
FOIA was enacted to help “ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” Protections for legitimate corporate secrets already exist; for example, the government cannot make trade secrets public even if disclosure would be in the public interest. In this era of expanding government secrecy, the Court should refrain from bowing to corporate interests and uphold the public’s overarching interest in access to information.
Tom Susman is president of the D.C. Open Government Coalition. He is also a Washington attorney who chairs the Open the Government Steering Committee. Lisa Rosenberg is the executive director of Open the Government.
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