The US Supreme Court heard oral argument in Food Marketing Institute v. Argus Leader Media on April 22, 2019.
Accounts of the argument suggest that the newspaper may not have been successful in convincing the Court that disclosure of records of reimbursements to individual stores that participate in the $70 billion a year federal Supplemental Nutrition Assistance Program (SNAP) would not cause substantial competitive harm to the stores.
The majority of the judges expressed skepticism about the newspaper's position.
The newspaper requested the records from the US Department of Agriculture in 2011 and the case was tried in federal court in 2016. That court rejected the USDA's reliance on the competitive harm exception to the Freedom of Information Act, based in part on a USDA survey indicating that only a handful of the 321,988 SNAP retailers objected to disclosure of the requested records.
USDA accepted the trial court's ruling, electing not to pursue an appeal. At that point, Food Marketing Institute — a private trade and lobbying association —picked up the gauntlet, litigating the case to the US Supreme Court.
Food Marketing Institute's "standing" may be the issue on which the Court's resolution of the case turns. The Court will not reach the more critical question of what the term "confidential" means under FOIA if the case is resolved against the Institute on the basis of its lack of standing.
Justice Sonia Sotomayor questioned whether the Institute had standing to pursue the appeal which began as a records access dispute between a public agency and the media/public. She focused on the agency's decision not to appeal the lower court ruling and to release the requested records.
"The government chose not to appeal. It chose ... to turn it over," Justice Sotomayor observed, "Why aren't you bound by that decision?"
Kentucky's courts have recognized that a party affected by disclosure of records, and who may possess a right to have documents protected from public inspection, has standing to assert that right in the courts â prior to disclosure -- even though the agency that possesses the records is inclined to release them.
In this state, a private person or entity could petition the circuit court to shield records containing information about them from public agency disclosure. Although the 1994 case that established this principle, Beckham v. Jefferson County Board of Education, involved public employees' privacy interests in disciplinary records, the case has been interpreted to apply in other contexts.
It is possible that a private association or company could petition a Kentucky court to block disclosure of records which it confidentially disclosed to a public agency if those records were "generally recognized as confidential or proprietary" and if the private association or company could establish that disclosure "would permit an unfair commercial advantage" to its competitors.
Kentucky therefore recognizes a third party's standing to assert a claim for nondisclosure in the courts, but we have a tougher standard for withholding business records than the standard found in federal law. Simply telling the court that the records are confidential would not satisfy the requirements of our exception , KRS 61.878(1)(c)1. or (1)(c)2.a. though d..
However, in the 2019 legislative session lawmakers attempted to relax this rigorous standard -- in the name of "economic development"-- in HB 387. The bill's sponsor suggested that businesses interested in locating in the state were disinclined to do so because Kentucky's open government laws require " too much" transparency
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In its original form, HB 387 went so far as to vest the Kentucky Economic Development Finance Authority with unilateral power to declare "information confidential" under unspecified restrictions to be determined in future regulation.
The media and access advocates strenuously opposed HB 387 âwhich, as amended, posed even more serious threats to the open records law â and its sponsor agreed to table it until the 2020 session.
An opinion in Food Marketing Institute v. Argus Leader Media is expected in the spring, just as Kentucky again faces a threat to the public's right of access to business records of companies doing business with, or seeking to do business with, the state.
That is, unless the sponsor of HB 387 can be persuaded that the current open records law provides adequate protection for such records and that his bill does far more harm than good.
