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Newspaper presses FOIA fight for food stamp payment data

South Dakota's Argus Leader newspaper urged a federal appeals court Wednesday to reverse a ruling blocking the newspaper from receiving data on how much the federal government pays to stores that redeeem food stamp benefits.

Jon Arneson, an attorney for the newspaper, told a panel of the U.S. Court of Appeals for the 8th Circuit that a lower court judge misinterpreted the law by ruling that a confidentiality provision for retailer applications allowed the U.S. Department of Agriculture to withhold all data on payments to those retailers. Under the Freedom of Information Act, the newspaper requested the data on annual payments to each retailer approved to take part in the Supplemental Nutrition Assistance Program, or SNAP.

"The Argus is not asking for the invoices. They’re asking for the payment information. All we’re really doing is asking: how does the government spend its money in this instance?" Arneson told the three-judge panel sitting in St. Paul, Minn. "Because of the way FOIA is intended to be applied, we’re entitled to the benefit of the doubt. If there’s doubt here, the Argus is entitled to that benefit."

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However, Assistant U.S. Attorney Stephanie Bengford said the confidentiality provision applies because the cumulative amount of payments to each retailer is based on the series of purchase transactions the stores submit to USDA.

"But for the fact of gathering that information as to each transaction, USDA would not have the total amount of what it paid to the retailers," she told the judges. She also said that a provision in the law protecting information like "income and sales tax filing documents" authorized USDA to withhold data on its own payments to retailers, because they became part of the stores' income.

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Arneson called that interpretation of the law "crazy."

"For us to say that that because the program itself requires this sort of payment or swiping of the card that suddenly that transforms all of that information into private information is—is crazy," the Argus's lawyer told the judges. "What we're simply asking for is how are the tax dollars spent. We're not trying to invade the privacy of the recipient households."

In a recording of the half-hour-long session posted on the 8th Circuit's website, the judges sounded skeptical about the government's interpretation of the law. However, a victory for the newspaper wouldn't guarantee release of the data. Instead, it would allow the feds to argue for withholding under other FOIA exemptions, such as one covering confidential business information.

"What is it about this information that should be kept secret?" one judge asked Bengford.

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The government lawyer replied that Congress's intent in writing the food stamp legislation wasn't really at issue. However, she went on to say that disclosing the payment data could facilitate fraud.

“The reason that USDA is concerned with disclosing this information is...this redemption information is reviewed by the agency to look for fraud,” Bengford said. “If all the information as to individual retailers who participate in this program were available by store type and the amount of redemptions that they’re bringing in on a yearly basis that would allow individuals who are participating in fraud to use that information to look for outliers—as far as trying to make a determination where the agency might be setting its threshhold as to where there might be a concern that someone could be participating in fraud.”

Considering the appeal are Chief Judge William J. Riley, Judge Steven Colloton and Judge Jane Kelly. Riley and Colloton are appointees of President George W. Bush. Kelly is an appointee of President Barack Obama.

relevant income and sales tax filing documents

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