Supreme Court Remands and Reverses Decision Against Food Marketing Institute 

FOIA was meant to encourage transparency in how the government works.  It was not meant to be a tool for private businesses to get confidential information about their competitors. Exemption 4 to the Freedom of Information Act protects from mandatory disclosure confidential commercial information supplied to the government, regardless of the reason it was supplied.  The ordinary meaning of “confidential” requires only that information be kept private and not be publicly disclosed. It is unquestionably true that retailers keep their stores’ SNAP redemption data confidential under this common-sense definition.

FMI has worked diligently over the last several decades to mitigate the SNAP stigma and protect the privacy of the SNAP customer.  Revealing the precise amount of SNAP benefits redeemed at a particular store could hurt SNAP participants in several ways.  First, some retailers may decide not to participate in SNAP if they suspect that their stores or customers might face some stigma once the amount of SNAP benefits that redeemed there is disclosed.  Other retailers have indicated that they might exit the program due to the competitive disadvantages such a release of commercial data would cause in what is already an extremely competitive market with very slim margins. Anything that reduces retailers’ participation in SNAP hurts American consumers.

We live in a word of instant data. Grocery stores, like most businesses, aggressively protect their confidential trade secrets, proprietary client data, and sales data. Retailers treat store-level SNAP redemption data as confidential sales data.  No retailer makes such information public; to the contrary, retailers carefully guard individual store sales figures and market share, including sales data for customers who rely on SNAP.  Disclosure of such confidential information gives retailers access to their competitors’ proprietary commercial information, which can be used in conjunction with other data to determine exactly where and how to compete.  Release of this information subjects retailers to real and substantial competitive harm.

The supermarket industry serves as the primary distribution point for food benefits purchased by millions of food-insecure households receiving SNAP benefits across the country. The grocery store consistently serves as an area’s economic and social hub, providing safe, affordable food and jobs while investing in local communities across America. SNAP recipients can redeem their benefits with dignity by using an electronic benefits transfer (EBT) card at the point of sale.  

The Supplemental Nutrition Assistance Program (SNAP), formerly the food stamp program, has become the largest food assistance program in the United States.  According to the Center on Budget and Policy Priorities, SNAP is the nation’s first line of defense against hunger, providing food assistance averaging about $125 per person, and about $245 per household, per month to more than 38 million individuals in more than 19 million households. SNAP benefits are administered jointly by the U.S. Department of Agriculture's (USDA) Food and Nutrition Service (FNS) and state welfare agencies.  

The Freedom of Information Act, or FOIA, is a valuable and important statute to ensure governmental accountability and transparency. But as the Court has repeatedly held when interpreting FOIA’s exemptions, Congress also designed FOIA to protect some specific information from mandatory disclosure. Exemption 4, for instance, protects “trade secrets and commercial and financial information obtained from a person and privileged or confidential.”  Such commercial information often has little to do with the government’s operations and much more to do with how private businesses compete with one another.  Here, for example, massive amounts of SNAP-related data is public, including how much is spent at the state and even ZIP-code level; that data may reveal information about government expenditures, but demanding store-level data necessarily requires divulging a particular retailer’s carefully guarded information about market share or clientele.  FMI is simply urging the Supreme Court to apply the ordinary meanings of the words Congress used in Exemption 4, including the ordinary meaning of “confidential,” to shield from mandatory disclosure private commercial information.

Store-level SNAP redemption data represents actual sales data.  Retailers zealously protect the confidentiality of sales data because of the innumerable ways that competitors can use such information to more effectively compete against them.  Congress expressly exempted confidential commercial information from mandatory disclosure. FOIA exists to shine a light on the government, not on private parties.

A vast amount of SNAP information is currently and publicly available. The amount of SNAP dollars redeemed is public – by month and by state and county. Interested parties can compare one year to the next or one year to five years. Our industry already tracks this public information for business and customer trends.  USDA’s website also depicts where SNAP-authorized stores are located and total SNAP redemptions by category of store.