Food Marketing Institute v. Argus Leader Media involves the interpretation of Exemption 4 to the Freedom of Information Act (FOIA), which protects from mandatory disclosure all “confidential” private-sector “commercial or financial information” that comes into the government’s possession.
On June 24, 2019, the U.S. Supreme Court released a decision in this case that has always been about protecting private parties’ confidential business information required to be provided to the government. FMI is grateful that the Court clarified FOIA’s Exemption 4 to prevent the disclosure of confidential commercial information that would put businesses at competitive disadvantages. We support FOIA and believe it is important legislation that should be interpreted as written.
The issue before the Court in Food Marketing Institute vs. Argus Leader Media involves whether FOIA’s Exemption 4 protects from mandatory disclosure store-level SNAP redemption data. Retailers carefully safeguard such sensitive information, which has significant value to competitors. FMI therefore intervened in the lawsuit on appeal to argue that store-level SNAP redemption data constitutes confidential commercial information, and is therefore exempt from disclosure under FOIA. Argus Leader, a South Dakota newspaper owned by Gannett, has argued that taxpayers have a right to know where government dollars are spent. FMI and its members don’t disagree with that general proposition—but food retailers of all sizes and geographic locations have expressed apprehension about the release of this individualized, highly granular information, which says less about how and where government money is spent than on the specific competitive position of particular stores and companies. Smaller companies have expressed concern over larger U.S. competitors receiving the data, and larger U.S. players have expressed concern about international online operators without existing U.S. stores gaining access to this confidential sales data.
To help the food retail industry share its story, recently, FMI launched a new, easy to use grassroots advocacy platform. From our Capitol Hill perspective, the new FMI Advocacy Center keeps us connected with our members of Congress, and makes sure we stay engaged with them on important issues.
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 Retail Litigation Center was one of these industry groups to step forward and explain how its members rely on Exemption 4 of the Freedom of Information Act to ensure that the confidential information their members disclose to the government will not be released to the general public. In its amicus brief, the Retail Litigation Center demonstrates the significance of how FMI’s Supreme Court case and its ramifications extend far beyond the retail grocery industry.
To date, the Court has decided 19 cases involving the Freedom of Information Act (FOIA), cases involving a wide array of FOIA issues and critical procedural concerns. Not one of those cases, however, has involved the interpretation of FOIA’s Exemption 4, which protects “trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential.” That changed recently. On April 22, the Court heard oral arguments in a case that has far-reaching implications for businesses’ confidential commercial information.
The Food Marketing Institute presented oral arguments at the U.S. Supreme Court in a case with broad implications for large and small commercial enterprises. We have asked the U.S. Supreme Court to clarify the appropriate standard for exempting store-level Supplemental Nutrition Assistance Program (SNAP) data from public release — including whether the plain meaning of “confidential” should be applied or whether businesses must prove substantial competitive harm in every instance.
The nation’s grocery stores have long kept confidential the amount consumers spend at individual stores with cash, credit and the Supplemental Nutrition Assistance Program, or SNAP. To business owners large and small, this store-level sales data is undoubtedly confidential because its release would provide an unfair advantage to competitors.
A legal case heading to oral argument before the U.S. Supreme Court this spring has far-reaching implications when it comes to something you hold near and dear -- your confidential commercial information. FMI is a named party in the case because we believe strongly that it is FMI’s role to defend our industry’s right to compete on a level playing field as well as its ability to serve a customer base as diverse as the nation’s palate.