In a case testing the limits of public-records laws, a trade group for grocers asked the Supreme Court on Monday to bar the release of store-by-store sales data for the $65 billion-a-year food stamp program. A South Dakota newspaper has fought since 2011 for the data, arguing taxpayers deserve to know how and where the government is spending their money.
“How the government spends its own money is critical information that the press and the public need to know,” said attorney Robert Loeb, who represented the Sioux Falls Argus Leader. Loeb said the trade group Food Marketing Institute (FMI) “would dramatically alter the scheme of FOIA,” the Freedom of Information Act, with its claim that store-level SNAP totals are confidential business information.
The USDA, which operates the food stamp program, refused to disclose the information when the Argus Leader requested it in a FOIA request in 2011. The newspaper sued and USDA eventually lost at the appellate level in 2017 and said it would release the material. The FMI intervened and brought the case to the Supreme Court.
Arguments on Monday centered on a 1974 precedent that says the government must release information when requested unless it would cause substantial competitive harm. Evan Young, representing FMI, said food stores provided the sales data in the belief it would be treated as confidential. FOIA exempts from release of material such as trade secrets and commercial or financial information, said Young, and the grocery industry regards sales tallies as proprietary data that could tip off a competitor.
Where someone chooses to spend food stamps “is in no sense government action,” said Young. “It tells you a lot about Mrs. Smith or Mr. Jones and their choices and it tells you a lot about how those two grocery stores market and…sell and what their selection might be.”
Loeb said FMI’s approach would allow businesses to unilaterally declare any tidbit as confidential. Justices Stephen Breyer and Neil Gorsuch questioned Loeb about varying uses within FOIA of the word “confidential” — national security vs. trade secrets, for instance — and if there was a clear reading of what information was exempt from FOIA disclosure. Loeb said the guide should be common law, which linked trade secrets and competitive harm.
Justices also aired the newspaper’s argument that FMI lacks legal authority to bring the case. If the Supreme Court agrees on that point, it might not rule on SNAP data disclosure at all.
“We have an interest that allowed us to intervene,” said Young, speaking of the concern among food retailers that competitors could use SNAP sales data to cut prices, stock different products or even open new stores.
The 2018 farm policy law included a provision to exempt SNAP “redemption data provided through the electronic benefit transfer system” from disclosure. Assistant Solicitor General Anthony Yang told the justices that USDA would not release the material sought by the newspaper, “if a FOIA exemption applies. So long as the government is not judicially compelled to do so, it will not do so.”
The nonprofit Committee to Protect Journalists said the FMI sought a major change in FOIA standards by giving a broader meaning to “confidential,” allowing companies to keep information they provided to the government out of public view.
When Argus Leader reporters asked for the SNAP data, they planned to use it in stories about the program, such as food stamp sales at farmers markets, and to potentially help identify fraud, said the AP.
More than 263,000 companies were SNAP retailers in 2017, says a USDA summary of retailer data. Supermarkets and super stores accounted for 82 percent of sales through the program although they are 14 percent of retailers. The 119,000 convenience stores that participate in SNAP make up 5.6 percent of sales.
To read a transcript of the arguments in Food Marketing Institute v Argus Leader Media, click here.