The U.S. Supreme Court last month said we can’t see certain kinds of information we may well need to participate in democracy as self-governing citizens. To paraphrase a line from “Network,” the movie and play recently on Broadway, we should be “mad as hell” about it.
The court ruled, 6-3, in Food Marketing Institute v. Argus Leader Media, the that the Freedom of Information Act (FOIA) does not provide the public with access to records from private companies given to a federal agency if the agency obtained the information with a promise to keep it secret.
In the decision, the court voided a decades-long practice — supported by lower court decisions — that such “confidential” information could be released unless it caused “substantial harm” to the business, with an eye to toward disclosures in the public interest related to safety concerns, or to the exposing of waste, fraud or abuse, among other points.
Justice Neil Gorsuch wrote in the majority opinion — agreeing with a grocery trade group — that current law provides that agencies and private companies don’t even need to have a specific reason for secrecy — just a company tag on records it considers “confidential” justifies denial of an FOIA request.
The decision is likely to decrease public access to vital records, such as information about private companies that receive federal funds. It will hamper — if not stymie — the obtaining of information the public can use to determine things like fraud, overcharging and the quality of work. The decision also comes as it’s ever more likely a private company will be contracted to carry out government projects or duties.
In the case at hand, the Sioux Falls, S.D., Argus Leader newspaper sought information in 2011, through an FOIA request, on the number of in-state stores participating in the federal food stamp program, as well as store-by-store data on the amount of purchases made using food stamps.
Argus Leader news director Cory Myers said after the decision that “this is a massive blow to the public’s right to know how its tax dollars are being spent, and who is benefiting.”
Justice Stephen Breyer disagreed with the decision, saying the “the whole point of the Freedom of Information Act — first signed into law in 1966 — is ‘to give the public access to information it cannot otherwise obtain.’”
Breyer said that given public and private sector tendencies to treat all information as private if not required to be disclosed, “the ruling … will deprive the public of information for reasons no better than convenience, skittishness or bureaucratic inertia.”
Whatever the reason the Supreme Court saw for supporting nondisclosure under FOIA based on a company’s self-designation, a democratic republic based in the ultimate authority of an informed and engaged electorate requires the highest degree of government openness and transparency.
We cannot decide how our government is doing if we don’t know what our government is doing — and that holds true for those places where government intersects with business.
Gene Policinski is president and chief operating officer of the Freedom Forum Institute. He can be reached at gpolicinski@freedomforum.org, or follow him on Twitter at @genefac.
