Food Marketing Institute v. Argus Leader Media

(Slip Opinion) OCTOBER TERM, 2018 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

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 Sup-

plemental 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 priv-

ileged 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 sub-

stantial 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 Insti-

tute, a trade association representing grocery retailers, intervened

and filed an appeal. The Eighth Circuit affirmed, rejecting the Insti-

tute’s argument that the court should discard the “substantive com-

petitive 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

2 FOOD MARKETING INSTITUTE v. ARGUS LEADER MEDIA

Syllabus

to the judgment ordering disclosure; and a favorable ruling from this

Court would redress the retailers’ injury by reversing that judgment.

Pp. 4–5.

2. Where commercial or financial information is both customarily

and actually treated as private by its owner and provided to the gov-

ernment under an assurance of privacy, the information is “confiden-

tial” within Exemption 4’s meaning. Pp. 5–12.

(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 cus-

tomarily kept private, or at least closely held, by the person impart-

ing it; and when the party receiving the information provides some

assurance that it will remain secret. At least the first of these condi-

tions 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 re-

solve whether both conditions are necessary because both conditions

are clearly met here. Uncontested testimony established that the In-

stitute’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. 5–7.

(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. 7–10.

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

suasive. 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 preexist-

ing common law term of art that covers only information whose re-

lease 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 com-

mon law meaning when Congress has not itself invoked the common

law terms of art associated with that meaning. See, e.g., Bruesewitz

Cite as: 588 U. S. ____ (2019) 3

Syllabus

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 a “substantial competitive

harm” requirement as a matter of policy because it believes FOIA ex-

emptions should be narrowly construed. But the Court cannot arbi-

trarily constrict Exemption 4 by adding limitations found nowhere in

its terms. Pp. 10–12.

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

GINSBURG and SOTOMAYOR, JJ., joined.

Cite as: 588 U. S. ____ (2019) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 18–481

_________________

FOOD MARKETING INSTITUTE, PETITIONER v.

ARGUS LEADER MEDIA, DBA ARGUS LEADER

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE EIGHTH CIRCUIT

[June 24, 2019]

JUSTICE GORSUCH delivered the opinion of the Court.

Congress has instructed that the disclosure re-

quirements of the Freedom of Information Act do “not

apply” to “confidential” private-sector “commercial or

financial information” in the government’s possession.

But when does information provided to a federal agency

qualify as “confidential”? The Food Marketing Institute

says it’s enough if the owner keeps the information private

rather than releasing it publicly. The government

suggests that an agency’s promise to keep information

from disclosure may also suffice to render it confidential.

But the courts below imposed a different requirement yet,

holding that information can never be deemed confidential

unless disclosing it is likely to result in “substantial

competitive harm” to the business that provided it.

Finding at least this “competitive harm” requirement

inconsistent with the terms of the statute, we reverse.

I

This case began when Argus Leader, a South Dakota

newspaper, filed a FOIA request for data collected by the

United States Department of Agriculture. The USDA

2 FOOD MARKETING INSTITUTE v. ARGUS LEADER MEDIA

Opinion of the Court

administers the national food-stamp program, known as

the Supplemental Nutrition Assistance Program. Argus

Leader asked the USDA for the names and addresses of

all retail stores that participate in SNAP and each store’s

annual SNAP redemption data from fiscal years 2005 to

2010, which we refer to as “store-level SNAP data.” The

USDA tried to meet the paper halfway. It released the

names and addresses of the participating stores but

declined to disclose the requested store-level SNAP data.

As relevant here, the USDA invoked 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).

Unsatisfied by the agency’s disclosure, Argus sued the

USDA in federal court to compel release of the store-level

SNAP data. Like several other courts of appeals, the

Eighth Circuit has engrafted onto Exemption 4 a so-called

“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.” Argus Leader Media v. United

States Dept. of Agriculture, 889 F. 3d 914, 915 (2018)

(internal quotation marks omitted). So the district court

held a two-day bench trial to determine whether

disclosure of the store-level SNAP data would cause

substantial competitive harm to participating retailers.

At trial, witnesses for the USDA testified that retailers

closely guard store-level SNAP data and that disclosure

would threaten stores’ competitive positions. They

explained that retailers use models of consumer behavior

to help choose new store locations and to plan sales

strategies. Competitors’ estimated sales volumes

represent an important component of these models and

can be time consuming and expensive to generate. And a

Cite as: 588 U. S. ____ (2019) 3

Opinion of the Court

model’s accuracy and utility increase significantly if it

includes a rival’s actual sales data rather than mere

estimates. So disclosure of store-level SNAP data could

create a windfall for competitors: Stores with high SNAP

redemptions could see increased competition for SNAP

customers from existing competitors, new market entrants

could use SNAP data to determine where to build their

stores, and SNAP-redemption data could be used to

discern a rival retailer’s overall sales and develop

strategies to win some of that business too. For its part,

Argus Leader offered no fact witnesses and did not dispute

that retailers customarily keep this data private or that it

bears competitive significance. Instead, the company

contended that any competitive harm associated with

disclosure would not be substantial. In the end, the

district court agreed; while “[c]ompetition in the grocery

business is fierce,” and while the record supported the

conclusion that revealing store-level SNAP data could

work some competitive harm, the court could not say that

disclosure would rise to the level of causing “substantial

competitive harm,” and thus ordered disclosure. Argus

Leader Media v. United States Dept. of Agriculture, 224

F. Supp. 3d 827, 833–835 (SD 2016) (emphasis added).

The USDA declined to appeal, but it alerted the

retailers who had provided the data so that they could

consider intervening to pursue the case further. The Food

Marketing Institute, a trade association representing

grocery retailers, answered the call. It successfully moved

to intervene under Federal Rule of Civil Procedure 24(a)

and then filed its own appeal. Meanwhile, the USDA

assured the district court that it would not disclose the

retailers’ data pending appeal. Before the Eighth Circuit,

the Institute argued that the court should discard the

“substantial competitive harm” test and apply instead the

ordinary public meaning of the statutory term

“confidential.” The court rejected that argument and

4 FOOD MARKETING INSTITUTE v. ARGUS LEADER MEDIA

Opinion of the Court

affirmed. We granted the Institute a stay of the Eighth

Circuit’s mandate and, later, its petition for certiorari.

585 U. S. ___ (2018); 586 U. S. ___ (2019).

II

Before turning to the merits, we confront a threshold

challenge to our jurisdiction: Argus Leader questions

whether the Institute has standing to pursue this appeal.

To show standing under Article III, an appealing litigant

must demonstrate that it has suffered an actual or

imminent injury that is “fairly traceable” to the judgment

below and that could be “redress[ed] by a favorable

ruling.” Monsanto Co. v. Geertson Seed Farms, 561 U. S.

139, 149–150 (2010).

The Institute satisfies each of these criteria. Whether or

not disclosure of the contested data would cause its

member retailers “substantial competitive harm,” the

record before us reveals (and Argus Leader does not

meaningfully dispute) that disclosure likely would cause

them some financial injury. As the Eighth Circuit

observed, the grocery industry is “highly competitive,” and

disclosure of store-level SNAP data likely would help

competitors win business from the Institute’s members.

889 F. 3d, at 916. This concrete injury is, as well, directly

traceable to the judgment ordering disclosure. And a

favorable ruling from this Court would redress the

retailers’ injury by reversing that judgment.

Argus Leader insists that the Institute’s injury is not

redressable because a favorable ruling would merely

restore the government’s discretion to withhold the

requested data under Exemption 4, and it might just as

easily choose to provide the data anyway. But the

government has represented unequivocally that,

consistent with its longstanding policy and past

assurances of confidentiality to retailers, it “will not

disclose” the contested data unless compelled to do so by

Cite as: 588 U. S. ____ (2019) 5

Opinion of the Court

the district court’s order. Brief for United States as

Amicus Curiae 35; accord, Tr. of Oral Arg. 18–22. A

reversal here thus would ensure exactly the relief the

Institute requests. That is enough to satisfy Article III.

Monsanto, 561 U. S., at 152–153.

III

A

As we’ve seen, Exemption 4 shields from mandatory

disclosure “commercial or financial information obtained

from a person and privileged or confidential.” 5 U. S. C.

§552(b)(4). But FOIA nowhere defines the term “confiden-

tial.” So, as usual, we ask what that term’s “ordinary,

contemporary, common meaning” was when Congress

enacted FOIA in 1966. Perrin v. United States, 444 U. S.

37, 42 (1979). We’ve done the same with other undefined

terms in FOIA. See, e.g., Milner v. Department of Navy,

562 U. S. 562, 569 (2011); United States v. Weber Aircraft

Corp., 465 U. S. 792, 804 (1984).

The term “confidential” meant then, as it does now,

“private” or “secret.” Webster’s Seventh New Collegiate

Dictionary 174 (1963). Contemporary dictionaries suggest

two conditions that might be required for information

communicated to another to be considered confidential. In

one sense, information communicated to another remains

confidential whenever it is customarily kept private, or at

least closely held, by the person imparting it. See, e.g.,

Webster’s Third New International Dictionary 476 (1961)

(“known only to a limited few” or “not publicly

disseminated”); Black’s Law Dictionary 370 (rev. 4th ed.

1968) (“intended to be held in confidence or kept secret”).

In another sense, information might be considered confi-

dential only if the party receiving it provides some assur-

ance that it will remain secret. See, e.g., 1 Oxford

Universal Dictionary Illustrated 367 (3d ed. 1961)

(“spoken or written in confidence”); Webster’s New World

6 FOOD MARKETING INSTITUTE v. ARGUS LEADER MEDIA

Opinion of the Court

Dictionary 158 (1960) (“told in confidence”).

Must both of these conditions be met for information to

be considered confidential under Exemption 4? At least

the first condition has to be; it is hard to see how

information could be deemed confidential if its owner

shares it freely. And there’s no question that the

Institute’s members satisfy this condition; uncontested

testimony established that the Institute’s retailers

customarily do not disclose store-level SNAP data or make

it publicly available “in any way.” See, e.g., App. 93–94.

Even within a company, witnesses testified, only small

groups of employees usually have access to it. But what

about the second condition: Can privately held information

lose its confidential character for purposes of Exemption 4

if it’s communicated to the government without assurances

that the government will keep it private? As it turns

out, there’s no need to resolve that question in this case

because the retailers before us clearly satisfy this

condition too. Presumably to induce retailers to

participate in SNAP and provide store-level information it

finds useful to its adminstration of the program, the

government has long promised them that it will keep their

information private. See, e.g., 43 Fed. Reg. 43275 (1978);

see also Brief for United States as Amicus Curiae 27–30.

Early courts of appeals confronting Exemption 4

interpreted its terms in ways consistent with these

understandings. In GSA v. Benson, 415 F. 2d 878, 881

(1969), for example, the Ninth Circuit concluded that

Exemption 4 would “ ‘protect information that a private

individual wishes to keep confidential for his own

purposes, but reveals to the government under the express

or implied promise’ ” of confidentiality. The D. C. Circuit

similarly held that Exemption 4 covered sales documents

“ ‘which would customarily not be released to the public’ ”

and which the government “agreed to treat . . . as

confidential.” Sterling Drug Inc. v. FTC, 450 F. 2d 698,

Cite as: 588 U. S. ____ (2019) 7

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709 (1971); see also Grumman Aircraft Eng. Corp. v.

Renegotiation Bd., 425 F. 2d 578, 580, 582 (1970)

(information a private party “submitted ‘in confidence’ ” or

“would not reveal to the public [is] exempt from

disclosure”).

B

Notably lacking from dictionary definitions, early case

law, or any other usual source that might shed light on the

statute’s ordinary meaning is any mention of the

“substantial competive harm” requirement that the courts

below found unsatisfied and on which Argus Leader pins

its hopes. Indeed, when called on some years ago to

interpret the similar phrase “information furnished by a

confidential source” in FOIA Exemption 7(D),

§552(b)(7)(D), this Court looked, as we do now, to “common

usage” and never suggested that the government must

prove that the disclosure of a source’s information would

result in substantial harm. Department of Justice v.

Landano, 508 U. S. 165, 173–174 (1993).

So where did the “substantial competitive harm”

requirement come from? In 1974, the D. C. Circuit

declared that, in addition to the requirements actually set

forth in Exemption 4, a “court must also be satisfied that

non-disclosure is justified by the legislative purpose which

underlies the exemption.” National Parks & Conservation

Assn. v. Morton, 498 F. 2d 765, 767. Then, after a

selective tour through the legislative history, the court

concluded that “commercial or financial matter is

‘confidential’ [only] if disclosure of the information is likely

. . . (1) to impair the Government’s ability to obtain

necessary information in the future; or (2) to cause

substantial harm to the competitive position of the person

from whom the information was obtained.” Id., at 770.

Without much independent analysis, a number of courts of

appeals eventually fell in line and adopted variants of the

8 FOOD MARKETING INSTITUTE v. ARGUS LEADER MEDIA

Opinion of the Court

National Parks test. See Contract Freighters, Inc. v.

Secretary of U. S. Dept. of Transp., 260 F. 3d 858, 861

(CA8 2001) (collecting cases).

We cannot approve such a casual disregard of the rules

of statutory interpretation. In statutory interpretation

disputes, a court’s proper starting point lies in a careful

examination of the ordinary meaning and structure of the

law itself. Schindler Elevator Corp. v. United States ex rel.

Kirk, 563 U. S. 401, 407 (2011). Where, as here, that

examination yields a clear answer, judges must stop.

Hughes Aircraft Co. v. Jacobson, 525 U. S. 432, 438 (1999).

Even those of us who sometimes consult legislative history

will never allow it to be used to “muddy” the meaning of

“clear statutory language.” Milner, 562 U. S., at 572.

Indeed, this Court has repeatedly refused to alter FOIA’s

plain terms on the strength only of arguments from legis-

lative history. See, e.g., Landano, 508 U. S., at 178 (refus-

ing to expand the plain meaning of Exemption 7(D) based

on legislative history); Weber Aircraft, 465 U. S., at 800–

803 (refusing to restrict Exemption 5 based on legislative

history).

National Parks’ contrary approach is a relic from a

“bygone era of statutory construction.” Brief for United

States as Amicus Curiae 19. Not only did National Parks

inappropriately resort to legislative history before consult-

ing the statute’s text and structure, once it did so it went

even further astray. The court relied heavily on state-

ments from witnesses in congressional hearings years

earlier on a different bill that was never enacted into law.

498 F. 2d, at 767–769. Yet we can all agree that “excerpts

from committee hearings” are “ ‘among the least illuminat-

ing forms of legislative history.’ ” Advocate Health Care

Network v. Stapleton, 581 U. S. ___, ___ (2017) (slip op., at

12); see also Kelly v. Robinson, 479 U. S. 36, 51, n. 13

(1986) (declining to “accord any significance” to “comments

in [legislative] hearings”). Perhaps especially so in cases

Cite as: 588 U. S. ____ (2019) 9

Opinion of the Court

like this one, where the witness statements do not comport

with official committee reports that are consistent with

the plain and ordinary meaning of the statute’s terms.

See S. Rep. No. 813, 89th Cong., 1st Sess., 9 (1965) (Ex-

emption 4 protects information “which would customarily

not be released to the public by the person from whom it

was obtained” such as “business sales statistics” and

“customer lists”); H. R. Rep. No. 1497, 89th Cong., 2d

Sess., 10 (1966) (Exemption 4 exempts material “if it

would not customarily be made public by the person from

whom it was obtained by the Government” and “infor-

mation which is given to an agency in confidence” such as

“business sales statistics”).

Unsurprisingly, National Parks has drawn considerable

criticism over the years. See, e.g., Critical Mass Energy

Project v. NRC, 931 F. 2d 939, 947 (CADC 1991) (Ran-

dolph, J., concurring) (National Parks was “ ‘fabricated . . .

out of whole cloth’ ”); New Hampshire Right to Life v.

Department of Health and Human Servs., 577 U. S. ___

(2015) (THOMAS, J., joined by Scalia, J., dissenting from

denial of certiorari). Even the D. C. Circuit has distanced

itself from the decision. While retaining National Parks

principally as a matter of stare decisis in the context of

information a private entity is required to provide to the

government, the court has pointedly declined to extend the

National Parks test to information provided voluntarily to

the government under Exemption 4. There, the court has

adhered to a much more traditional understanding of the

statutory term “confidential,” holding that information

qualifies as confidential “if it is of a kind that would cus-

tomarily not be released to the public by the person from

whom it was obtained.” Critical Mass Energy Project v.

NRC, 975 F. 2d 871, 879–880 (CADC 1992) (en banc); see

also id., at 880–882 (Randolph, J., concurring). Nor, un-

bound by D. C. Circuit precedent, can we discern a per-

suasive reason to afford the same statutory term two such

10 FOOD MARKETING INSTITUTE v. ARGUS LEADER MEDIA

Opinion of the Court

radically different constructions. Ratzlaf v. United States,

510 U. S. 135, 143 (1994).

C

That leaves Argus Leader to try to salvage the result, if

not the reasoning, of National Parks. But here its

arguments prove no more persuasive. The company

begins by rearranging the text of Exemption 4 to create a

phrase that does not appear in the statute: “confidential

commercial information.” Then, it suggests this synthetic

term mirrors a preexisting common law term of art. And

finally it asserts that the common law term covers only

information whose release would lead to substantial com-

petitive harm. But Argus Leader points to no treatise or

case decided before Exemption 4’s adoption that assigned

any such meaning to the terms actually before us: “com-

mercial or financial information [that is] privileged or

confidential.” So even accepting (without granting) that

other phrases may carry the specialized common law

meaning Argus Leader supposes, the parties have mus-

tered no evidence that the terms of Exemption 4 did at the

time of their adoption. Nor will this Court ordinarily

imbue statutory terms with a specialized common law

meaning when Congress hasn’t 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 (2011).

Alternatively, the company suggests that, whatever the

merits of National Parks as an initial matter, Congress

effectively ratified its understanding of the term “confi-

dential” by enacting similar phrases in other statutes in

the years since that case was decided. To be sure, the

ratification canon can sometimes prove a useful interpre-

tive tool. But it derives from the notion that Congress is

aware of a definitive judicial interpretation of a statute

when it reenacts the same statute using the same lan-

guage. Helsinn Healthcare S. A. v. Teva Pharmaceuticals

Cite as: 588 U. S. ____ (2019) 11

Opinion of the Court

USA, Inc., 586 U. S. ___, ___ (2019) (slip op., at 7). And

Congress has never reenacted Exemption 4. So whether

Congress’s use of similar language in other statutes after

National Parks might (or might not) tell us what later

Congresses understood those other statutes to mean, it

tells us nothing about Congress’s understanding of the

language it enacted in Exemption 4 in 1966.

Finally, Argus urges us to adopt a “substantial competi-

tive harm” requirement as a matter of policy because it

believes FOIA exemptions should be narrowly construed.

But as we have explained in connection with another

federal statute, we normally “have no license to give [stat-

utory] exemption[s] anything but a fair reading.” Encino

Motorcars, LLC v. Navarro, 584 U. S. ___, ___ (2018) (slip

op., at 9). Nor do we discern a reason to depart from that

rule here: FOIA expressly recognizes that “important

interests [are] served by [its] exemptions,” FBI v. Abram-

son, 456 U. S. 615, 630–631 (1982), and “[t]hose exemp-

tions are as much a part of [FOIA’s] purpose[s and poli-

cies] as the [statute’s disclosure] requirement,” Encino

Motorcars, 584 U. S., at ___ (slip op., at 9). So, just as we

cannot properly expand Exemption 4 beyond what its

terms permit, see, e.g., Milner, 562 U. S., at 570–571, we

cannot arbitrarily constrict it either by adding limitations

found nowhere in its terms.

Our dissenting colleagues appear to endorse something

like this final argument. They seem to agree that the law

doesn’t demand proof of “substantial” or “competitive”

harm, but they think it would be a good idea to require a

showing of some harm. Neither side, however, has advo-

cated for such an understanding of the statute’s terms.

And our colleagues’ brief brush with the statutory text

doesn’t help; they cite exclusively from specialized diction-

ary definitions lifted from the national security classifica-

tion context that have no bearing on Exemption 4. Really,

our colleagues’ submission boils down to a policy argument

12 FOOD MARKETING INSTITUTE v. ARGUS LEADER MEDIA

Opinion of the Court

about the benefits of broad disclosure. But as JUSTICE

BREYER has noted, when Congress enacted FOIA it sought

a “workable balance” between disclosure and other gov-

ernmental interests—interests that may include providing

private parties with sufficient assurances about the

treatment of their proprietary information so they will

cooperate in federal programs and supply the government

with information vital to its work. See Milner, 562 U. S.,

at 589 (dissenting opinion) (arguing for a broad exemption

from FOIA disclosure obligations to honor a “workable

balance” between disclosure and privacy).

*

At least 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 the meaning of Exemption 4. Because the store-

level SNAP data at issue here is confidential under that

construction, the judgment of the court of appeals is

reversed and the case is remanded for further proceedings

consistent with this opinion.

It is so ordered.

Cite as: 588 U. S. ____ (2019) 1

BREYER, J., concurring

Opinioninofpart and, dissenting

BREYER J. in part

SUPREME COURT OF THE UNITED STATES

_________________

No. 18–481

_________________

FOOD MARKETING INSTITUTE, PETITIONER v.

ARGUS LEADER MEDIA, DBA ARGUS LEADER

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE EIGHTH CIRCUIT

[June 24, 2019]

JUSTICE BREYER, with whom JUSTICE GINSBURG and

JUSTICE SOTOMAYOR join, concurring in part and dissent-

ing in part.

The Freedom of Information Act (FOIA) requires the

government to make information available to the public

upon request. 5 U. S. C. §552(a)(3)(A). It also contains a

list of exemptions. §552(b). Exemption 4 says that the Act

does “not apply” to “commercial or financial information

obtained from a person and . . . confidential.” §552(b)(4).

The majority holds that “commercial or financial infor-

mation” is “confidential” and consequently falls within the

scope of this exemption “[a]t least” where it is “[1] both

customarily and actually treated as private by its owner

and [2] provided to the government under an assurance of

privacy.” Ante, at 11. The majority spells out two condi-

tions, but in my view there is a third: Release of such

information must also cause genuine harm to the owner’s

economic or business interests.

Since 1974, when the District of Columbia Circuit decided

National Parks and Conservation Assn. v. Morton, 498

F. 2d 765, nearly every lower court has imposed some kind

of harm requirement. See New Hampshire Right to Life v.

Department of Health and Human Servs., 577 U. S. ___,

___ (2015) (THOMAS, J., dissenting from denial of certio-

rari) (slip op., at 3) (noting that “every Court of Appeals to

2 FOOD MARKETING INSTITUTE v. ARGUS LEADER MEDIA

BREYER, J., concurring

Opinioninofpart and, dissenting

BREYER J. in part

consider Exemption 4 has interpreted it [using] National

Park[s] ”); Critical Mass Energy Project v. NRC, 975 F. 2d

871, 876 (CADC 1992) (en banc) (collecting cases). One

way to satisfy that requirement is by showing that disclo-

sure is “likely” to “cause substantial harm to the competi-

tive position of the person from whom the information was

obtained.” National Parks, 498 F. 2d, at 770, and n. 17.

The Eighth Circuit, in this case, applied the same stand-

ard. Argus Leader Media v. United States Dept. of Agri-

culture, 889 F. 3d 914, 915 (2018). And, like the majority,

I believe that National Parks’ harm requirement goes

too far.

For one thing, National Parks held that the only form of

private harm that can warrant nondisclosure is “competi-

tive” harm. 498 F. 2d, at 770–771 (emphasis added).

Later courts took this to mean that harm from “future or

potential competition” does not suffice, Niagara Mohawk

Power Corp. v. Department of Energy, 169 F. 3d 16, 19

(CADC 1999), and even that harm must “flo[w] from the

affirmative use of proprietary information by competitors,”

Public Citizen Health Research Group v. FDA, 704 F. 2d

1280, 1291, n. 30 (CADC 1983) (some emphasis added).

But disclosure of confidential information can cause a

business serious harm in ways not so directly linked to

competition. Disclosure, for example, might discourage

customers from using a firm’s products, but without sub-

stantial effect on its rivals. It could mean increased poten-

tial competition, which may, or may not, materialize. It

could, by revealing buying habits, undermine a regulated

firm that has no competitors. The list goes on. I can

discern no basis in the statute for categorically excluding

these other types of harm from the scope of Exemption 4.

Similarly, the need to prove “substantial” competitive

harm can sometimes produce complex debates about the

nature of competition and the degree of injury. National

Parks, 498 F. 2d, at 770. And those debates can mean

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BREYER J. in part

long, onerous court proceedings concerning issues far

removed from the genuine fear of harm that leads firms to

keep information secret in the first place. The National

Parks decision itself led to a remand for days of hearings,

a second appeal, and yet another remand, so that more

evidence about the competitive conditions facing two

particular park concessionaires could be heard. National

Parks and Conservation Assn. v. Kleppe, 547 F. 2d 673,

675 (CADC 1976). Like the majority, I can find nothing in

FOIA’s language, purposes, or history that imposes so

stringent a requirement. Accordingly, I would clarify that

a private harm need not be “substantial” so long as it is

genuine.

On the other hand, I cannot agree with the majority’s

decision to jump to the opposite conclusion, namely, that

Exemption 4 imposes no “harm” requirement whatsoever.

After all, the word “confidential” sometimes refers, at least

in the national security context, to information the disclo-

sure of which would cause harm. See, e.g., Webster’s

Third New International Dictionary 476 (1966) (defining

“confidential” to mean “characterized by or relating to

information considered prejudicial to a country’s inter-

ests”); Webster’s New Collegiate Dictionary 237 (1974)

(defining “confidential” to mean “containing information

whose unauthorized disclosure could be prejudicial to the

national interest”). And a speaker can more sensibly refer

to his Social Security number as “confidential” than his

favorite color, in part because release of the former is more

likely to cause harm. “Confidential,” in this sense, conveys

something about the nature of the information itself, not

just (as the majority suggests) how it is kept by those who

possess it.

Reading “confidential” in this more restrictive sense is

more faithful to FOIA’s purpose and how we have inter-

preted the Act in the past. This Court has made clear that

the “mandate of the FOIA” is “broad disclosure of Gov-

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BREYER J. in part

ernment records.” CIA v. Sims, 471 U. S. 159, 166 (1985).

Its purpose is to “permit access to official information long

shielded unnecessarily from public view” and “to create a

judicially enforceable public right to secure such infor-

mation from possibly unwilling official hands.” EPA v.

Mink, 410 U. S. 73, 80 (1973). To that end, we have con-

tinuously held that FOIA’s enumerated exemptions “must

be narrowly construed.” Department of Air Force v. Rose,

425 U. S. 352, 361 (1976); see, e.g., Milner v. Depart-

ment of Navy, 562 U. S. 562, 565 (2011) (same); FBI v.

Abramson, 456 U. S. 615, 630 (1982) (noting our “oft-

repeated caveat that FOIA exemptions are to be narrowly

construed”).

The majority’s reading of Exemption 4 is at odds with

these principles. The whole point of FOIA is to give the

public access to information it cannot otherwise obtain. So

the fact that private actors have “customarily and actually

treated” commercial information as secret, ante, at 11,

cannot be enough to justify nondisclosure. After all, where

information is already publicly available, people do not

submit FOIA requests—they use Google. Nor would a

statute designed to take from the government the power to

unilaterally decide what information the public can view,

see Mink, 410 U. S., at 80, put such determinative weight

on the government’s preference for secrecy (what the

majority calls the government’s “assurance of privacy”),

ante, at 11.

For the majority, a business holding information as

private and submitting it under an assurance of privacy is

enough to deprive the public of access. But a tool used to

probe the relationship between government and business

should not be unavailable whenever government and

business wish it so. And given the temptation, common

across the private and public sectors, to regard as secret

all information that need not be disclosed, I fear the ma-

jority’s reading will deprive the public of information for

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BREYER J. in part

reasons no better than convenience, skittishness, or bu-

reaucratic inertia. The Exemption’s focus on “commercial”

or “financial” information, for instance, implies that the

harm caused by disclosure must do more than, say, simply

embarrass the information’s owner. It must cause

some genuine harm to an owner’s economic or business

interests.

In sum, the language permits, and the purpose, prece-

dent, and context all suggest, an interpretation that in-

sists upon some showing of harm. And I believe we should

say just that. Exemption 4 can be satisfied where, in

addition to the conditions set out by the majority, release

of commercial or financial information will cause genuine

harm to an owner’s economic or business interests. (Be-

cause it is not at issue, I express no opinion as to whether

genuine harm to a government interest would suffice.) I

would remand the case for a determination as to whether,

in this instance, release of the information at issue will

cause that genuine harm. To that extent, I dissent from

the majority’s decision.