Freedom of Information Act

One Word

On Monday, April 22, the supreme court spent hours upon hours discussing the definition of one particular word, in reference to the Freedom of Information Act. That word is "confidential". The discussion is determining if that word refers to anything that is intended to be kept secret, or if it refers to only the information that is likely to cause harm if it were to be publicized. 

According to USA Today, the federal government and a retailers' trade group, the Food Marketing Institute, argued for a broad definition that would leave ample room to keep data from the public. Media organizations and public interest groups favored a more narrow definition requiring harm that would make confidentiality harder to come by.

Federal appeals courts nationwide have adopted the latter meaning by narrowly interpreting one of the law's FOIA exemptions. "Trade secrets and commercial or financial information" can be withheld from the press or public, they said, if that would result in competitive harm.

Despite a string of court decisions and congressional statutes relying on that narrow definition, however, the nine justices of the Supreme Court weren't so easily convinced, which could spell trouble for the Sioux Falls Argus Leader in South Dakota, a Gannett newsroom (as is USA TODAY) that's spent a decade seeking "confidential" data on the federal food stamps program.

From the outset, the oral argument shaped up as a contest between the court's five conservative justices and its four liberals. To wrest the data it seeks from the government, the newspaper and its backers would need to win at least one conservative to its cause. That did not appear likely, particularly when Associate Justice Neil Gorsuch – like his predecessor Antonin Scalia, a stickler for words' definitions and statutes' texts – noted different sections of the FOIA law use "confidential" differently.

It wasn't clear that all the liberal justices supported the media outlet's FOIA arguments, either. According to USA Today, associate Justice Elena Kagan agreed not everything can be deemed confidential, but assurances of confidentiality the government has given private companies might carry more significance.


Associate Justice Stephen Breyer hypothesized that information could be held from the public if it's "confidential for a legitimate reason: Release would hurt the company, or release would hurt the government. We sort of naturally think that if people are going to keep something confidential, that there's a reason for it," she said. "You don't just say, 'I don't want to disclose because I don't feel like it.' "