In other news from the US Supreme Court, the Court issued a 6-3 opinion yesterday in the Freedom of Information Act case pitting Argus Leader Media against the Food Marketing Institute.
The South Dakota newspaper requested records relating to retail stores that participate in SNAP, including the stores' annual SNAP redemption data, to verify how tax dollars were being spent and where abuses had occurred.
A trade organization, Food Marketing Institute, objected to disclosure, arguing that the federal Freedom of Information Act exemption for such information does not require a showing that disclosure would cause harm.
The Argus Leader relied on the National Parks & Conservation Assn. v. Morton standard established in 1974 that required a showing of "substantial competitive harm" from disclosure.
In affirming Food Marketing Institute's position that commercial or financial information is confidential under FOIA if it is "both customarily and actually treated as private by its owner and provided to the government under an assurance of privacy," the Court overruled the 1974 federal appeals court ruling that had guided interpretation of the federal exemption for decades.
The dissenters noted that"the whole point of FOIA is to give the public access to information it cannot otherwise obtain."
"Given the temptation, common across the private and public sectors, to regard as secret all information that need not be disclosed," the dissent noted, "the majority's reading will deprive the public of information for reasons no better than convenience, skittishness, or bureaucratic inertia."
In Kentucky we are fortunate that our statutory exemption for confidential or proprietary information maintained by state or local agencies expressly requires a showing that the requested records were "confidentially disclosed to an agency, or required by an agency to be disclosed to it, [are] generally recognized as confidential or proprietary, [and] if openly disclosed would permit an unfair commercial advantage to competitors of the entity that disclosed the records."
The requirement of a showing of an unfair commercial advantage is embedded in the law.
With regard to access to such records in the custody of state or local agencies, the Argus Leader opinion has no impact. We continue to enjoy a right of access to such information unless the agency demonstrates that disclosure would create an unfair commercial advantage to competitors of the entity that disclosed it.
