Another manifestation of the foreseeable consequences resulting from Food Marketing Institute v Argus Leader Media, in this linked article National Defense magazine provides tips to private contractors doing business with federal agencies to assist those agencies in hiding from public scrutiny — under the US Supreme Court's new interpretation of Exemption 4 of the federal Freedom of Information Act — commercial information the contractors share with the agencies.
https://www.facebook.com/419650175248377/posts/483320672214660?s=184659…
It's important to remember that the commercial information at issue in Food Marketing Institute was not proprietary as that term is commonly understood. It did not contain a trade secret or a commercially valuable formula, method, technique, or process the disclosure of which would give competitors an edge.
Instead, it consisted of annual redemption data of retail stores that participate in the Supplemental Assistance Nutrition Program (SNAP).
Disclosure of the data, the Argus Leader unsuccessfully argued, would enable the public to examine fraud in the $70 billion a year taxpayer funded food stamp program.
The retail association that pursued the case — after the US Department of Agriculture accepted the lower court's ruling that the data was not protected by Exemption 4 and should be accessible to the public — convinced the US Supreme Court that the SNAP redemption data is "customarily and actually treated as private by its owner and provided to the government under assurances of confidentiality."
In his dissent, Justice Breyer correctly reasoned that "the whole point of FOIA is to give the public access to information it cannot otherwise obtain. So the fact that private actors have 'customarily and actually treated' commercial information as secret cannot be enough to justify nondisclosure."
Continuing, and this is critical, Justice Breyer observed:
"For the majority, a business holding information as private and submitting it under an assurance of privacy is enough to deprive the public of access. *But a tool used to probe the relationship between government and business should not be unavailable whenever government and business wish it so.* And given the temptation, common across the private and public sectors to regard as secret all information that need not be disclosed, I fear the majority's reading *will deprive the public of information for no reasons better than convenience, skittishness, or bureaucratic inertia.*"
The language in the corresponding Kentucky open records law exception requires a showing that disclosure of records that are "confidentially disclosed" to a public agency, and "generally recognized as confidential or proprietary," would permit "an unfair commercial advantage to competitors of the entity that disclosed them."
https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=49156
But Kentucky's agencies are already far too inclined to yield their open records duties to the private entities with which they do business.
https://www.facebook.com/419650175248377/posts/471084006771660?s=184659…
They regard such records as secret — without independent verification — simply because the private entities "wish it so." And they are aided in these efforts by lawmakers seeking — thus far unsuccessfully — to weaken the existing statutory exception that has been on the books since 1994, thus prioritizing the state's purported business interests over the public's right to know.
https://www.facebook.com/419650175248377/posts/479752365904824?s=184659…
If they succeed, we can say goodbye to this well-established "tool used to probe the relationship between government and business."
https://www.facebook.com/419650175248377/posts/486844551862272?s=184659…
