By: Leslie G. Sarasin, President and CEO, Food Marketing Institute

mg-caption:Front row, left to right: Associate Justice Stephen G. Breyer, Associate Justice Clarence Thomas, Chief Justice John G. Roberts, Jr., Associate Justice Ruth Bader Ginsburg, Associate Justice Samuel A. Alito. Back row: Associate Justice Neil M. Gorsuch, Associate Justice Sonia Sotomayor, Associate Justice Elena Kagan, Associate Justice Brett M. Kavanaugh.Yesterday was an historic moment for food retail business owners large and small. Just how often does a person or organization have the chance to influence history? The Food Marketing Institute on behalf of the food retail industry did just that by achieving a landmark U.S. Supreme Court victory (6-3) in its fight to protect retailer and shopper privacy.  As FMI’s counsel stated soon after the Court issued its opinion, "This case reversed decades of circuit opinions, which doesn't happen often. FMI is now a part of history."

The Court’s opinion affirmed that FOIA was created to shine a light on the government, not on private parties, and the Supreme Court’s holding creates an important precedent that could extend well beyond store-level Supplemental Nutrition Assistance Program (SNAP) sales data in grocery, which was the subject of the case before the Court. 

The nation’s grocery stores have long kept confidential the amount consumers spend at individual stores with cash, credit or SNAP. To preserve the trust established over the years between grocers and their customers and communities, FMI asked the United States Supreme Court to apply the Freedom of Information Act’s (FOIA) plain language, which simply asks whether retailers keep their sales data confidential, not why they do so. Store-level sales data is undoubtedly confidential, and the Supreme Court agreed the word “confidential” in FOIA Exemption 4 must be interpreted according to its plain text.

FMI’s counsel at Baker Botts offers further analysis of the Court’s opinion below: 

“On June 24, 2019, the Supreme Court agreed with FMI: store-level SNAP redemption data can be protected because retailers keep it confidential, and because retailers participated in SNAP with the government’s assurances that such data would remain confidential.  

Justice Neil Gorsuch wrote the opinion for a six-member majority of the Supreme Court. The opinion began by noting that when USDA chose not to appeal, FMI “answered the call.” The court then rejected the “substantial competitive harm” test as having no basis in the plain text of Exemption 4. The court called the test “a relic from a ‘bygone era of statutory construction.’”  

Instead, the court held that commercial information is “confidential” when it is customarily kept private, pursuant to the ordinary meaning of “confidential.” The court then concluded that “there’s no question” that SNAP data is kept confidential by retailers. The court also rejected the newspaper’s policy arguments as inadequate to overcome the statutory text. 

Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg and Justice Sonia Sotomayor, wrote a separate opinion concurring in part and dissenting in part. While Justice Breyer agreed that the “substantial competitive harm” test should not be the law, he would have required some proof of harm for information to be considered “confidential” and thus exempt from mandatory disclosure.  

The Supreme Court’s decision not only protects the 2005 to 2010 SNAP data, but will likely serve as a bulwark against future requests for retailers’ SNAP data. The decision may also help limit disclosure of other types of private commercial information that has been submitted to the government.”

The case is Food Marketing Institute v. Argus Leader Media, No. 18-481, before the Supreme Court of the United States. For more information, visit FMI.org/SCOTUS

Your perseverance in this case is to be commended and your support of FMI’s efforts is greatly appreciated.

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