Freedom of Information Act cases remain a relative rarity at the Supreme Court — Monday’s arguments are the first FOIA-focused ones at the court in more than eight years. | Eric Baradat/AFP/Getty Images legal Supreme Court could limit access to business data Justices heard arguments on Monday in the case, which pits business groups against news organizations and open-government advocates.

The Supreme Court appears headed for a ruling that could dramatically restrict access to federal government records with details about private businesses.

Justices heard arguments on Monday in the case, which pits business groups against news organizations and open-government advocates.


The Trump administration has allied itself with the business groups seeking to overturn an appeals court precedent that has allowed the release of business-provided data for nearly half a century. Media outlets and transparency advocates have pushed back against the effort, warning that reining in access to such information could eliminate public scrutiny of an untold number of federal databases and other records about highly regulated, potentially dangerous industries.

The dispute is the first in which the justices have agreed to address the meaning of a Freedom of Information Act exemption used to decide when information businesses give the government is too sensitive to release.

In 1974, the D.C. Circuit Court of Appeals ruled that an exemption for “confidential” business records did not apply to information that simply wasn’t public. The exemption, the judges said, could be used only in cases where the government would have trouble getting the information in the future or where release of the data would cause “substantial competitive harm.” The decision paved the way for greater public access to information about private businesses.

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The Trump administration and business advocates have branded the longstanding decision as “atextual” — a description intended to be taken as a grave insult by the court’s conservative majority.

At least three members of that majority — Justices Neil Gorsuch, Brett Kavanaugh and Samuel Alito — sounded hostile to the longstanding requirement in the D.C. Circuit ruling that companies show competitive harm before information they voluntarily provided to the government is released.

“The average person is supposed to have fair notice of the statute,” Gorsuch complained, suggesting that the D.C. Circuit read words into the law that simply aren’t there.

The case before the court began with a request the Argus Leader newspaper of Sioux Falls, S.D., sent to the Agriculture Department in 2011 for five years of store-level data on how much money was spent under the Supplemental Nutrition Assistance Program, also known as the food-stamp program.

A lawyer for the paper, Robert Loeb, said information was being withheld in which no competitive harm shown to the business was shown. He also noted that in situations of businesses billing the government, it’s not totally clear what information comes from the business and what simply shows where tax dollars are going.

“That would be a dramatic change of the way FOIA has been applied for 40 years,” Loeb said about the possibility of protecting all information businesses give the government. “How the government spends its own money is critical information that the press and public need to know.”

Loeb said that when Congress protected “confidential” business and financial information in 1974, it was incorporating the concept of harm to the business already existing under common law.

“These words didn’t just fall from the sky and randomly appear here,” he said. He also argued that Congress has “ratified” the D.C. Circuit ruling in nearly 30 provisions adopted in recent decades.

Evan Young, representing food retailers through the Food Marketing Institute, said having the court’s effort to assess harm to businesses has proved complicated. In the newspaper’s case, a judge ruled after a trial that the harm resulting from the release of the retail data on food-stamp spending was too speculative to block disclosure.

“Harm is not part of the word ‘confidential,’” Young insisted.

Pressed by Justice Sonia Sotomayor, Young acknowledged that retailers see harm in releasing the data, but they don’t believe they were obligated to prove that in court. “Of course, our clients aren’t paying for us to pursue this to this level because they feel like it,” he said.

At least two of the court’s liberal members, Justices Elena Kagan and Stephen Breyer, suggested that the arguments against the D.C. Circuit’s decision had some weight.

Kagan said the appeals court had imported language that “the statute at least does not immediately suggest.” However, at another point Kagan suggested that the law might require at least some effort on the businesses’ part to keep the information secret, rather than the mere fact it hasn’t been publicized.

Breyer said he wasn’t sure that businesses should have to show “competitive harm,” just some harm, like loss of business resulting from embarrassment.

Democratic-appointed Justices Sotomayor and Ruth Bader Ginsburg seemed more open to the newspaper’s arguments. Sotomayor accused the Justice Department of declining to appeal an earlier court ruling requiring disclosure of the data, then attempting “an end run” by “piggybacking” on the food retailers’ petition to the high court.

Justice Department attorney Anthony Yang said the Agriculture Department wants to keep the data private because retailers have expected that for decades. “The government is trying to keep its word,” he said.

However, Ginsburg said the Trump administration’s arguments seemed in tension with the motivation behind FOIA.

“The whole purpose of FOIA says: ‘Disclose,’” she said. “There have been cases of a captive agency. That the government can control this by making a promise not to disclose seems counter to the purpose of FOIA.”

Sotomayor also chimed in on that point, saying, “Doesn’t that turn FOIA on its head?”

Chief Justice Roberts said little during the session, but on a couple occasions he sounded irritated that Sotomayor was pressing procedural questions without allowing the attorneys much time to delve into the substance of the fight over what the FOIA exemption means.

As usual, Justice Clarence Thomas asked no questions of the lawyers.

Attorneys pressing for more robust access to government records have noted that the Supreme Court has often said that FOIA exemptions are supposed to be read “narrowly” — an instruction that seems at odds with putting nearly all business information in the hands of federal agencies off limits.

Watchdog groups who monitor the tech industry and artificial-intelligence systems argued in an amicus brief filed earlier this year that in an era in which more and more government functions are provided by contractors, putting any information obtained from a business off limits could cripple efforts to monitor AI projects for racial bias and other harms.

“This degree of secrecy could pave the way toward an era of automated governmental decision-making that is largely inscrutable and unaccountable: errors will go unfixed, bias undetected, and individuals will be unable to understand or challenge the processes to which they are subject.”

One additional twist in the case: Last December, Congress passed and President Donald Trump signed a farm bill that contained a provision the Justice Department says made clear Congress’ intent to deny public access to SNAP redemption data.

However, disclosure advocates say the provision does not put the data beyond the reach of FOIA.

Freedom of Information Act cases remain a relative rarity at the Supreme Court, with Monday’s arguments the first FOIA-focused ones before the court in more than eight years.

In the 2010-11 term, the high court heard a pair of FOIA cases. One involved telecom behemoth AT&T’s attempt to claim protection under one of the law’s personal privacy exemptions. The justices resoundingly rejected the company’s arguments in an 8-0 decision penned by Chief Justice John Roberts.

The other case stemmed from the Navy’s use of an exemption for internal agency policies and procedures to withhold records about explosive storage facilities in Washington state. The justices again issued a pro-disclosure ruling , voting 8-1 to reject a longstanding interpretation that allowed use of that exemption to cover records whose disclosure could frustrate an agency’s operations.

Writing for the court’s majority, Kagan said that if Congress wanted to protect such information it could, but there was no sign the internal-policies exemption was supposed to cover the maps at issue in the explosive-bunkers case.

In the food stamp case, the Trump administration and business are pressing the justices to repeat what they did in the Navy explosives case, holding that a widely accepted legal standard must be set aside when the words Congress put into law don’t support it.

“The Court should follow the same course here,” the Justice Department argued in its brief.