Food Marketing Institute v. Argus Leader Media

Syllabus

FOOD MARKETING INSTITUTE v. ARGUS LEADER

MEDIA, dba ARGUS LEADER

certiorari to the united states court of appeals for

the eighth circuit No. 18–481. Argued April 22, 2019—Decided June 24, 2019

Respondent Argus Leader Media filed a Freedom of Information Act (FOIA) request with the United States Department of Agriculture (USDA), seeking the names and addresses of all retail stores that participate in the national food-stamp program—known as the Supplemental Nutrition Assistance Program (SNAP)—and each store’s annual SNAP redemption data from fiscal years 2005 to 2010. The USDA declined to disclose the store-level SNAP data, invoking FOIA’s Exemption 4, which shields from disclosure “trade secrets and commercial or financial information obtained from a person and privileged or confidential,” 5 U. S. C. § 552(b)(4). Argus Leader sued the USDA. Following circuit precedent, the District Court employed the “competitive harm” test, under which commercial information cannot be deemed “confidential” unless disclosure is “likely . . . to cause substantial harm to the competitive position of the person from whom the information was obtained.” The court agreed that revealing store-level SNAP data could work some competitive harm, but it could not say that disclosure would cause “substantial competitive harm,” and thus ordered disclosure. Petitioner Food Marketing Institute, a trade association representing grocery retailers, intervened and filed an appeal. The Eighth Circuit affirmed, rejecting the Institute’s argument that the court should discard the “substantive competitive harm” test in favor of the ordinary public meaning of the statutory term “confidential.” Held:

1. The Institute has standing to appeal. Disclosure of the contested data would cause its members some financial injury in the highly competitive grocery industry; this concrete injury is directly traceable to the judgment ordering disclosure; and a favorable ruling from this Court would redress the retailers’ injury by reversing that judgment. Pp. 432–433.

2. Where commercial or financial information is both customarily and actually treated as private by its owner and provided to the government under an assurance of privacy, the information is “confidential” within Exemption 4’s meaning. Pp. 433–440.

(a) At the time of FOIA’s enactment, the term “confidential” meant

“private” or “secret.” Contemporary dictionaries suggest two conditions that might be required for information communicated to another to be considered confidential: when the information is customarily kept private, or at least closely held, by the person imparting it; and when the party receiving the information provides some assurance that it will remain secret. At least the first of these conditions must be met; it is hard to see how information could be deemed confidential if its owner shares it freely. But the Court need not resolve whether both conditions are necessary because both conditions are clearly met here. Uncontested testimony established that the Institute’s retailers customarily do not disclose store-level SNAP data or make it publicly available. And to induce retailers to participate in SNAP and provide store-level information, the government has long promised retailers that it will keep their information private. Early courts of appeals confronting Exemption 4 interpreted its terms in ways consistent with these understandings. Pp. 433–435.

(b) Argus Leader pins its hopes on the “substantial competitive

harm” requirement from the D. C. Circuit’s decision in National Parks & Conservation Assn. v. Morton, 498 F. 2d 765. There, the court inappropriately resorted to legislative history before consulting the statute’s text and structure and relied heavily on statements from witnesses in congressional hearings years earlier on a different bill that was never enacted into law. Unsurprisingly, National Parks has drawn considerable criticism over the years, and even the D. C. Circuit has distanced itself from the decision. Pp. 435–438.

(c) Argus Leader’s attempt to salvage National Parks is unpersua-

sive. First, it rearranges the text of Exemption 4 to create a phrase that does not appear in the statute: “confidential commercial information.” It suggests that this synthetic term mirrors a preexisting common law term of art that covers only information whose release would lead to substantial competitive harm, but points to no treatise or case decided before Exemption 4’s adoption that assigned any such meaning to the terms actually before the Court. Nor will this Court ordinarily imbue statutory terms with a specialized common law meaning when Congress has not itself invoked the common law terms of art associated with that meaning. See, e. g., Bruesewitz v. Wyeth LLC , 562 U. S. 223, 233–235. Alternatively, the company suggests that Congress effectively ratified its understanding of the term “confidential” by enacting similar phrases in other statutes in the years since National Parks was decided. But the ratification canon applies when Congress re-enacts the same statute using the same language, and Congress has never re-enacted Exemption 4. Finally, Argus Leader urges the Court to adopt

Syllabus

a “substantial competitive harm” requirement as a matter of policy be-

cause it believes FOIA exemptions should be narrowly construed. But

the Court cannot arbitrarily constrict Exemption 4 by adding limitations

found nowhere in its terms. Pp. 438–440. 889 F. 3d 914, reversed and remanded.

Gorsuch, J., delivered the opinion of the Court, in which Roberts, C. J.,and Thomas, Alito, Kagan,and Kavanaugh,JJ.,joined. Breyer, J.,filed an opinion concurring in part and dissenting in part, in which Ginsburgand Sotomayor, JJ.,joined,post, p. 440.

Evan A. Youngargued the cause for petitioner.With him on the briefs wereThomas R. Phillips, Gavin R. Villareal, Scott A. Keller, Stephanie F. Cagniart,andEllen Springer.

Anthony A. Yangargued the cause for the United States asamicus curiaeurging reversal.With him on the brief wereSolicitor General Francisco,Assistant Attorney General Hunt,Deputy Solicitor General Kneedler, and H.Thomas Byron III.

Robert M. Loebargued the cause for respondent. With him on the brief wereThomas M. Bondy,Randall C. Smith, andJon E. Arneson.*

*Briefs of amici curiae urging reversal were filed for the Alliance of Marine Mammal Parks & Aquariums et al. byIra KasdanandBezalel Stern; for the Chamber of Commerce of the United States of America et al. byJohn P . Elwood, Joshua S. Johnson, Daryl L. Joseffer, Karen R. Harned,andLuke A. Wake; for the National Association of Convenience Stores et al. byShannen W. Coffin; and for Retail Litigation Center, Inc., byAdam G. UnikowskyandDeborah R. White.

Briefs ofamici curiaeurging affirmance were filed for the AI Now Institute et al. byLucinda M. Finley,Jason M. Schultz,David D. Cole, Brett Max Kaufman,Nathan Freed Wessler,Deborah N. Archer,Vincent M. Southerland,David L. Sobel, andAlex Abdo; for American Small Business League byKarl Olson; for Bioscience Advisors, Inc., byRobert S. ClarkandChad S. Pehrson; for the Cause of Action Institute et al. by Ryan P . Mulvey,R. James Valvo III,Anne Weismann, andAllan Blutstein; for the Electronic Privacy Information Center et al. byMarc RotenbergandAlan Butler; for Freedom of Information Act Scholars et al. byMichael C. Dorf, pro se; for New Hampshire Right to Life by Michael J. Tierney,John J. Bursch,David A. Cortman, andRory T. Gray;