Amicus Curiae Brief — Food Marketing Institute, Petitioner v. Argus Leader Media, dba Argus Leader

NO. 18-481

IN THE

Supreme Court of the United States

____________

FOOD MARKETING INSTITUTE,

v.

Petitioner,

ARGUS LEADER MEDIA D/B/A ARGUS LEADER,

Respondent,

____________

On Writ of Certiorari to the United States

Court of Appeals for the Eighth Circuit

____________

BRIEF OF AMICUS NEW HAMPSHIRE RIGHT

TO LIFE IN SUPPORT OF RESPONDENT

____________

John J. Bursch

David A. Cortman

Rory T. Gray

ALLIANCE DEFENDING

FREEDOM

440 First Street, N.W.

Suite 600

Washington, D.C. 20001

(616) 450-4235

jbursch@ADFlegal.org

Michael J. Tierney

Counsel of Record

WADLEIGH, STARR &

PETERS, PLLC

95 Market Street

Manchester, NH 03101

(603) 669-4140

mtierney@wadleighlaw.com

Counsel for Amicus Curiae

i

RULE 29.6 STATEMENT

Petitioner New Hampshire Right to Life

(“NHRTL”) is a New Hampshire not-for-profit

corporation that has no parent company.

ii

TABLE OF CONTENTS

RULE 29.6 STATEMENT ................................................ i

TABLE OF AUTHORITIES .......................................... iii

INTEREST OF AMICUS CURIAE ............................... 1

INTRODUCTION AND SUMMARY ............................ 3

ARGUMENT ...................................................................... 7

I. The National Parks standard ignores FOIA’s

plain text and has proven unworkable in

practice. ............................................................................. 7

II. The term “Confidential” in Exemption 4

should be narrowly construed. ............................... 13

III. Whether information is categorized

confidential should depend on statutes and

regulations, not contractor discretion. ................ 15

CONCLUSION ................................................................. 20

iii

TABLE OF AUTHORITIES

Cases

Argus Leader Media v. U.S. Department of

Agriculture,

889 F.3d 914 (8th Cir. 2018) ................... 8, 11, 19

Argus Leader Media v. U.S. Department of

Agriculture,

900 F. Supp. 2d 997 (D.S.D. 2012), rev’d and

remanded, 740 F.3d 1172 (8th Cir. 2014) ..... 6, 18

Berkemer v. McCarty,

468 U.S. 420 (1984).............................................. 6

Brock v. Pierce County,

476 U.S. 253 (1986)............................................ 12

Canadian Commercial Corp. v. Department of

Air Force,

442 F. Supp. 2d 15 (D.D.C. 2006), aff’d, 514

F.3d 37 (D.C. Cir. 2008) ............................. 4, 8, 10

Department of Air Force v. Rose,

425 U.S. 352 (1976).............................................. 3

EPA v. Mink,

410 U.S. 73 (1973).......................................... 3, 12

FBI v. Abramson,

456 U.S. 615 (1982)........................................ 7, 13

Federal Crop Insurance Corp. v. Merrill,

332 U.S. 380 (1947)............................................ 16

Federal Open Market Committee of Federal

Reserve System. v. Merrill,

443 U.S. 340 (1979) ............................................. 7

iv

General Services Administration v. Benson,

415 F.2d 878 (9th Cir. 1969) ............................. 15

Hercules, Inc. v. Marsh,

839 F.2d 1027 (4th Cir. 1988) ............................. 8

Hodes v. U.S. Department of Treasury,

342 F. Supp. 3d 166 (D.D.C. 2018) .................. 4, 9

Lagos v. United States,

138 S. Ct. 1684 (2018)........................................ 14

New Hampshire Right to Life v. Department of

Health & Human Services,

778 F.3d 43 (1st Cir. 2015) ......................... 2, 4, 8

New Hampshire Right to Life v. Department of

Health & Human Services,

136 S. Ct. 383 (2015)............................................ 2

N.L.R.B. v. Robbins Tire & Rubber Co.,

437 U.S. 214 (1978)............................................ 12

National Parks & Conservation Association v.

Morton,

498 F.2d 765 (D.C. Cir. 1974) .......................3-4, 7

Northrop Grumman System Corp. v. National

Aeronautics & Space Administration,

346 F. Supp. 3d 109 (D.D.C. 2018) .................... 10

Raher v. Federal Bureau of Prisons,

749 F. Supp. 2d 1148 (D. Or. 2010) ..................... 9

Sharyland Water Supply Corp. v. Block,

755 F.2d 397 (5th Cir. 1985) ............................... 8

U.S. Department of Justice v. Landano,

508 U.S. 165 (1993).................................. 5, 15, 16

v

U.S. Department of Justice v. Tax Analysts,

492 U.S. 136 (1989)........................................ 7, 13

Utah v. U.S. Department of Interior,

256 F.3d 967 (10th Cir. 2001) ....................... 4, 10

Yee v. Escondido,

503 U.S. 519 (1992).............................................. 6

Statutes

5 U.S.C. 552 ...................................................... passim

7 U.S.C. 2018 .................................................... 5, 6, 18

7 U.S.C. 2426 ............................................................ 17

7 U.S.C. 2619 ............................................................ 17

7 U.S.C. 4912 ............................................................ 17

15 U.S.C. 57b-2......................................................... 17

26 U.S.C. 6103(a) ..................................................... 17

35 U.S.C. 122(a) ....................................................... 17

42 U.S.C. 299b-22..................................................... 17

Regulations

7 C.F.R. 3430.21 ....................................................... 17

7 C.F.R. 278.1(q)(3)(iv) ............................................. 17

41 C.F.R. 60-40.3 ...................................................... 16

45 C.F.R. 5.42 ........................................................... 12

Other Authorities

Agriculture Improvement Act of 2018, Pub. L.

No. 115-334, 132 Stat. 4490 .......................... 6, 18

vi

Electronic Freedom of Info. Act Amendments of

1996, Pub. L. No. 104–231, 110 Stat. 3048 ....... 11

Executive Order 12600 ............................................ 12

1

INTEREST OF AMICUS CURIAE1

New Hampshire Right to Life (NHRTL) seeks to

foster respect for life from the moment of fertilization

to natural death. It educates its members and the

public through ongoing public-record requests and

analyses, including the problems with and abuses in

taxpayer funding of abortion clinics.

Previous requests under the Freedom of

Information Act, 5 U.S.C. 552, have revealed that the

federal Department of Health and Human Services

was—and perhaps still is—reimbursing Planned

Parenthood for birth control drugs at approximately

388% the rate the same drugs were being sold to the

public at Walmart. NHRTL used this information to

educate the public and campaign to stop the wasteful

taxpayer funding of abortion clinics. Other public

record requests have shown that Planned Parenthood

was spending hundreds of thousands of dollars

lobbying and promoting increased taxpayer funding

of its clinics and the election of abortion-on-demand

politicians.

Americans deserve to know how the federal

government is spending their hard earned tax money

and if that money is being funneled to groups that are

misusing it. Unfortunately, not all of NHRTL’s

1 Pursuant to Supreme Court Rule 37(6), amicus states that no

party other than the amicus and its counsel authored this brief

in whole or part nor contributed money that was intended to

fund preparing or submitting this brief. Both parties have

consented in writing to the filing of this brief in blanket consents

on file with the Court.

2

Freedom of Information Act (FOIA) requests have

been fully successful. Many documents regarding how

much certain abortion clinics charge the taxpayer and

how the clinics ultimately spend their taxpayer funds

have been withheld under a broad, atextual application of FOIA’s Exemption 4. E.g., N.H. Right to Life

v. Dep’t of Health & Human Servs., 778 F.3d 43, 49–

52 (1st Cir. 2015); N.H. Right to Life v. Dep’t of Health

& Human Servs., 136 S. Ct. 383, 384 (2015).

NHRTL will have future FOIA requests that

courts will similarly deny if this Court allows the

lower courts’ broad, atextual reading of Exemption 4

to continue. Accordingly, NHRTL has a strong

interest in the courts applying FOIA as Congress

wrote it. Interpreting Exemption 4 in accord with its

plain meaning will result in the transparency that

Congress intended while allowing all citizens to know

how the government spends their tax dollars.

3

INTRODUCTION AND SUMMARY

OF THE ARGUMENT

The public has a right to know how its government

acts and decides to spend taxpayer dollars. An agency

cannot secretly award contractors millions of dollars

in public funds without public scrutiny of that

spending.

Recognizing this reality, Congress enacted FOIA,

5 U.S.C. 552. The statute operates “to permit access

to official information long shielded unnecessarily

from public view and attempts to create a judicially

enforceable public right to secure such information

from possibly unwilling official hands.” EPA v. Mink,

410 U.S. 73, 80 (1973). The law’s primary purpose is

“to pierce the veil of administrative secrecy and to

open agency action to the light of public scrutiny.”

Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976).

FOIA accomplishes this by broadly mandating

disclosure unless one of nine narrow exemptions

specifically applies. Exemption 4, at issue in this case,

exempts “trade secrets and commercial or financial

information[,] obtained from a person [that is]

privileged or confidential.” 5 U.S.C. 552(b)(4).

Several courts of appeal have refused to narrowly

apply Exemption 4’s text and have instead greatly

broadened the statutory exemption—thereby limiting

the public’s access to information—to preclude

disclosure whenever a third party alleges that

disclosure of public knowledge may result in

“substantial harm.” Nat’l Parks & Conservation Ass’n

4

v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974). This is

contrary to FOIA’s purpose and plain text.

Instead of piercing the veil of administrative

secrecy, atextual judicial standards for applying

Exemption 4 tend to shield government contractors so

they do not face competition that could save the

American taxpayer millions of dollars. E.g., N.H.

Right to Life v. Dep’t of Health & Human Servs., 778

F.3d 43, 49–52 (1st Cir. 2015) (Title X funding to

abortion clinics); Canadian Commercial Corp. v. Dep’t

of Air Force, 442 F. Supp. 2d 15, 33 (D.D.C. 2006),

aff’d, 514 F.3d 37 (D.C. Cir. 2008) (defense funding);

Utah v. U.S. Dep’t of Interior, 256 F.3d 967, 970 (10th

Cir. 2001) (leasing of land); Hodes v. U.S. Dep’t of

Treasury, 342 F. Supp. 3d 166, 174 (D.D.C. 2018)

(collection of delinquent taxes). The federal courts

should apply FOIA as written and not create tests by

judicial fiat that broaden the statutory language.

Amicus New Hampshire Right to Life agrees with

Petitioner Food Marketing Institute that this Court

should reject the National Parks test. Nevertheless,

contrary to Petitioner’s arguments, rejecting National

Parks does not require this Court to overrule the

Eighth Circuit’s judgment. Exemption 4’s plain text

does not shield any information a private party deems

“confidential.” It applies only to trade secrets,

privileged information, and information Congress has

actually designated confidential via statute or by

properly authorized regulation.

5

This Court should hold that information is

“confidential” only when the government has determined, via statute or rule, that such information must

be held in confidence. Such a rule is consistent with

(1) the statutory text, (2) how Exemption 4 was

interpreted before National Parks, and (3) how this

Court has interpreted “confidential” in Exemption 7

for purposes of “confidential informants” in criminal

investigations. See U.S. Dep’t of Justice v. Landano,

508 U.S. 165, 172 (1993). Courts should not guess at

whether the release of public documents might harm

a future commercial interest. It is only when the

government, through a statute or duly authorized

regulation, accords public records confidential status

that Exemption 4 applies.

Allowing government contractors to self-servingly

designate all of their applications for taxpayer funds

“confidential” is illogical and has no basis in the

statutory text. It would only worsen the problem of

government contractors avoiding both public oversight and competition for public funds.

Although the Eighth Circuit wrongly applied the

National Parks test, this Court should affirm its

judgment. Congress could have, but did not, designate

the information sought in this case as confidential.

That reality is readily apparent from the fact that,

after the FOIA request was made in this case, and the

Eighth Circuit had held 7 U.S.C. 2018 inapplicable to

the information requested, Congress amended

7 U.S.C. 2018 to arguably deem that, prospectively,

the

requested

SNAP

retailers’

redemption

6

information would be deemed confidential and not

subject to disclosure. Agric. Improvement Act of 2018,

Pub. L. No. 115-334, 132 Stat. 4490; Pet. Br. 45 n.29.

Petitioner argues that this amendment made the

requested information more clearly confidential, Pet.

Br. 45 n.29; the Respondent argues that the amendment does not change the applicability of the statute

to the requested documents, Resp. Br. 17–23. But this

Court need not address this dispute because Petitioner never appealed the Eighth Circuit’s 2014 decision

that 7 U.S.C. 2018(c) is not applicable to the requested documents. “Only the questions set forth in the

petition, or fairly included therein, will be considered

by the Court.” Yee v. Escondido, 503 U.S. 519, 535

(1992) (quoting Berkemer v. McCarty, 468 U.S. 420,

443 n.38 (1984)). Since no question presented asks

whether 7 U.S.C. 2018(c), either originally or as

amended, precluded the disclosure of the information,

it is not before the Court.2

Accordingly, the requested information is not

“confidential” for purposes of Exemption 4 or any of

the other FOIA exemptions. USDA is obligated to

produce the documents to Argus Leader.

2 The Eighth Circuit rejected USDA’s original argument that the

SNAP statute, 7 U.S.C. 2018, made the requested documents

exempt under FOIA Exemption 3. Argus Leader Media v. U.S.

Dep’t of Agric., 900 F. Supp. 2d 997 (D.S.D. 2012), rev’d and

remanded, 740 F.3d 1172 (8th Cir. 2014). This decision was

never appealed. USDA then argued that the information was

exempt under Exemption 4. So, the only issue in this appeal is

whether Exemption 4 applies.

7

ARGUMENT

I.

The National Parks standard ignores FOIA’s

plain text and has proven unworkable in

practice.

FOIA allows citizens to see how their government

works, including how their government spends

taxpayer dollars. It requires “full agency disclosure

unless information is exempted under clearly

delineated statutory language.” Fed. Open Mkt.

Comm. of Fed. Reserve Sys. v. Merrill, 443 U.S. 340,

351–52 (1979). “[C]onsistent with the Act’s goal of

broad disclosure, these exemptions have been

consistently given a narrow compass.” U.S. Dep’t of

Justice v. Tax Analysts, 492 U.S. 136, 151 (1989);

accord FBI v. Abramson, 456 U.S. 615, 616 (1982)

(“FOIA exemptions are to be narrowly construed”).

Nevertheless, when it comes to Exemption 4,

several courts of appeal have refused to narrowly

apply the text and have instead greatly broadened the

statutory exemption to preclude disclosure whenever

a third party alleges that public knowledge may

result in “substantial harm.” Nat’l Parks &

Conservation Ass’n v. Morton, 498 F.2d 765, 770 (D.C.

Cir. 1974). This is contrary to FOIA’s plain text and

purpose.

Making matters worse, the courts of appeals have

applied National Parks inconsistently. Some courts

have made Exemption 4 even broader than National

Parks already did.

8

On one hand, the Fourth, Fifth, and Eighth

Circuits apply the National Parks test in its original

form. These circuits require that harm be “substantial” and result from “actual competition” before

allowing Exemption 4 to prevent disclosure. E.g.,

Hercules, Inc. v. Marsh, 839 F.2d 1027, 1030 (4th Cir.

1988) (where a “contract is not awarded

competitively, the prospect of competitive injury from

releasing [the documents] is remote.”); Sharyland

Water Supply Corp. v. Block, 755 F.2d 397, 399 (5th

Cir. 1985) (competition with other water suppliers is

“insignificant”); see also Argus Leader Media v. U.S.

Dep’t of Agric., 889 F.3d 914, 916 (8th Cir. 2018)

(information that may be “marginally” helpful to

competitors will not result in “substantial” harm).

On the other hand, the First Circuit has expanded

National Parks to bar disclosure whenever a third

party alleges the possibility of some future harm from

theoretical competition for government grants. N.H.

Right to Life, 778 F.3d at 49–52; see also Canadian

Commercial Corp. v. Dep’t of Air Force, 442 F. Supp.

2d 15, 33 (D.D.C. 2006), aff’d, 514 F.3d 37 (D.C. Cir.

2008). This rule has transformed FOIA from a

disclosure statute to a withholding statute.

Specifically, the First Circuit held that Planned

Parenthood’s Manual of Medical Standards and

Guidelines was exempt from disclosure under

Exemption 4. N.H. Right to Life, 778 F.3d at 49–52.

Planned Parenthood submitted that manual as part

of a noncompetitive grant request for over $1 million

tax-payer dollars, making it a public record. Because

9

the First Circuit theorized that disclosing the manual

may possibly harm Planned Parenthood’s competitive

position in some hypothetical future grant application, it held that Exemption 4 applied. This holding

was unrelated to Exemption 4’s text or even the

National Parks test as written. Yet the holding

allowed Planned Parenthood to shield its manual

from public disclosure. The National Parks test has

thus taken on a life of its own, resulting in a cloak of

secrecy surrounding how abortion clinics spend

federal tax dollars in New Hampshire.

What’s more, the problem is neither limited to

New Hampshire nor federal funding of abortion

clinics. Lower-court decisions have precluded taxpayers from seeing how their money is being used in

a broad variety of contexts, in many jurisdictions. For

example, the D.C. District Court applied National

Parks to exempt from disclosure contractor application materials that would show how much the IRS

pays to third-party debt collectors for certain types of

collection. Hodes, 342 F. Supp. 3d at 174. The court

held that if inflated prices were disclosed, the current

contractor would be harmed as it “would enable

competitors to (1) gain insight into the awardees’

pricing strategy and (2) underbid the awardees in

future competitive bidding processes for IRS debt

collection or other similar contracts.” Id. at 176.3

3 Just a few years ago, another court rejected a similar argu-

ment. Raher v. Fed. Bureau of Prisons, 749 F. Supp. 2d 1148,

1158–61 (D. Or. 2010) (finding argument that a “competitor

could use the redacted information to inform its bidding in future

10

In other words, if the public knew how much the

taxpayer was overpaying on this contract, the IRS

would receive competitor applications to provide the

same service for less. That is precisely the type of

publicly beneficial information that Congress ordered

to be disclosed.

The Tenth Circuit held that National Parks

precluded disclosure of lease terms for the storage of

nuclear fuel for a similar reason: if the federal

government’s terms were made public, it would result

in others “undercutting prices” in future applications.

Utah v. U.S. Dep’t of Interior, 256 F.3d 967, 970 (10th

Cir. 2001). But turning the light on how the

government spends taxpayer funds is precisely what

FOIA is designed to accomplish.

The D.C. District Court likewise held that “disclosure of Northrop Grumman’s proposed wrap rates [for

NASA] would permit competitors to undercut

Northrop Grumman’s bids” in future federal contract

requests. Northrop Grumman Sys. Corp. v. Nat’l

Aeronautics & Space Admin., 346 F. Supp. 3d 109,

119 (D.D.C. 2018). Accord, e.g., Canadian

Commercial Corp. v. Dep’t of Air Force, 442 F. Supp.

2d 15, 33 (D.D.C. 2006), aff’d, 514 F.3d 37 (D.C. Cir.

2008) (public disclosure of prices charged by Air Force

contractor would result in contractor’s costs and

competition for similar contracts . . . to be no more than a

theoretical possibility.”) While application of the substantial

competitive harms test of National Parks should be rejected in

total, the fact that it appears to have been broadened in recent

years makes it all the more troubling.

11

pricing information being undercut by competitors for

future air force contracts). Many courts have similarly

withheld the disclosure of pricing information in

government contracts because the current contractor

might be underbid by less expensive competitors,

even though disclosure saves taxpayer money. And

even in those circuits where National Parks is applied

more narrowly, that standard mandates the atextual

analyses of whether any competitive harms to a third

party are “substantial.” E.g., Argus Leader Media v.

U.S. Dep’t of Agric., 889 F.3d 914, 916 (8th Cir. 2018).

This post hoc, case-by-case analysis also results in

substantial delays in obtaining public documents as

the parties fight over which competitor harms are, in

fact, substantial. For example, in the present case, the

SNAP documents at issue were requested in 2011 and

the Eighth Circuit did not issue its decision until

seven years later in 2018. The Argus Leader still has

not received the requested documents that pertain to

the 2005 to 2010 fiscal years.

The FOIA statute does not envision the passage of

several years before the public actually receives

requested documents. The statute requires that

agencies “shall make the records promptly available.”

5 U.S.C. 552(a)(3)(A) (emphasis added). In fact, the

statute requires agencies to respond to requests

within 20 days.4 5 U.S.C. 552(a)(6)(A). The National

4 Though the original deadline was 10 days, the time period was

increased to 20 days in amendments adopted in 1996. Electronic

Freedom of Info. Act Amendments of 1996, Pub. L. No. 104–231,

110 Stat. 3048.

12

Parks test makes it practically impossible to comply

with the statutory timeframes. Before an agency

releases documents, the business submitter is

entitled to a reasonable period of time to make

objections. Executive Order 12600; 45 C.F.R. 5.42. If

the agency makes a disclosure decision and the

business submitter disagrees, it is entitled to further

time to make objections that preserve the

confidentiality of the questioned documents.

Executive Order 12600. The National Parks standard

leads to substantial delays in the disclosure of

information regarding how the federal government

spends the public’s money.

In sum, the judiciary’s Exemption 4 expansion has

resulted in less disclosure and increased secrecy

involving government contracting and grants. That

outcome thwarts “the protection of the public fisc[,

which] is a matter that is of interest to every citizen.”

Brock v. Pierce Cty., 476 U.S. 253, 262 (1986). “[A]

democracy cannot function unless the people are

permitted to know what their government is up to.”

Mink, 410 U.S. at 105 (Douglas, J., dissenting).

Congress did not write Exemption 4 to help

government contractors secretly overcharge the

government. FOIA is a tool that ensures “an informed

citizenry, vital to the functioning of a democratic

society, needed to check against corruption and to

hold the governors accountable to the governed.”

N.L.R.B. v. Robbins Tire & Rubber Co., 437 U.S. 214,

242 (1978). This Court should reject the National

13

Parks test and instead interpret Exemption 4

narrowly according to its plain language.

II. The term “Confidential” in Exemption 4

should be narrowly construed.

In National Parks and its progeny, the courts of

appeal chose to read Exemption 4 as broadly as

possible to maximize protection of government vendors. That approach was wrong. When interpreting

other FOIA exemptions, this Court has repeatedly

recognized that they “are to be narrowly construed.”

Abramson, 456 U.S. at 616; Tax Analysts, 492 U.S. at

151 (“[C]onsistent with the Act’s goal of broad

disclosure, these exemptions have been consistently

given a narrow compass.”). Consistent with the rest of

FOIA, the Court should apply the same narrow

approach to Exemption 4’s interpretation.

In drafting Exemption 4, Congress did not broadly

exempt all information that a business working as a

government contractor may wish to keep confidential.

Congress certainly did not broadly exempt any

information that may harm such a business. It only

exempted “trade secrets and commercial or financial

information[,] obtained from a person [that is]

privileged or confidential.” 5 U.S.C. 552(b)(4). This

Court should interpret these words narrowly.

As a starting point, this means that government

contractors do not decide what information FOIA

requires them to disclose. Contra, e.g., Marine

Mammals Br. 29 (“The word ‘confidential’ in

Exemption 4 should be construed to mean that

14

whatever information a party designates and treats

as ‘confidential.’”) Such an approach is hardly narrow.

And it leads to a fox-in-the-henhouse problem: any

government contractor engaged in fraud or

overbilling has unilateral veto power over any public

request for information. There is nothing in

Exemption 4’s plain language that even suggests

Congress intended such an anti-disclosure outcome

when enacting a FOIA statute designed to increase

government transparency.

In addition, under the doctrine of noscitur a sociis,

a word in a statute is known by the company it keeps.

Lagos v. United States, 138 S. Ct. 1684, 1688–89

(2018). Here, the word “confidential” appears in

context with the word “privileged.” Privileged

information, such as documents disclosed as part of

an attorney-client or priest-penitent relationship, is

considered virtually sacrosanct, necessitating the

strongest public-policy reasons to overcome the privilege and mandate disclosure. The word “privileged”

should be similarly construed. If Congress wanted to

do so, it could have easily exempted all commercial or

financial information that a contractor provides to the

government. Congress rejected that approach.

Accordingly, this Court should interpret

Exemption 4 narrowly as encompassing only truly

“confidential” information, similar to inherentlyprivileged documents. Under this standard,

commercial or financial information pertaining to the

payment of government funds to a private entity is

the easy case. Such data necessarily implicates not

15

only the commercial and financial interests of the

contractor, but also the disclosure and transparency

interests of the government and the public. As the

United States recognized in its amicus brief: “In this

case, store-level SNAP-redemption data necessarily

corresponds to the government’s own payments of

federal funds (through EBT processors) to the stores.

That fact significantly diminishes any basis for

finding the information to be ‘confidential’ for

purposes of Exemption 4.” U.S. Br. 26. Congress did

not write FOIA to shield the public from knowing how

the government spends taxpayer dollars.

III. Whether information is categorized confidential should depend on statutes and

regulations, not contractor discretion.

Before the National Parks decision, courts looked

to Exemption 4’s text and held that the government

could withhold commercial documents in response to

a FOIA request only where there was an “express or

implied promise by the government that the

information will be kept confidential.” Gen. Servs.

Admin. v. Benson, 415 F.2d 878, 881 (9th Cir. 1969).

This is a practical and easy-to-apply rule that has the

added benefit of being consistent with how this Court

has interpreted other FOIA exemptions.

A test based on the express or implied promise of

confidentiality is similar to the standard that this

Court announced in Landano, 508 U.S. at 172. There,

this Court held, for the purposes of FOIA Exemption

7, that a law enforcement agency’s “confidential

16

source” is considered confidential only when there has

been an explicit or implied assurance of confidentiality. It would be passing strange to hold that

government contractors receive greater protection

from FOIA disclosure than the government’s criminal

informants.

Consistent with Landano, a promise of confidentiality must be made by someone authorized to

make such a promise. A promise by an official not

authorized to act cannot be used to thwart public

access to information about how taxpayer dollars are

spent. This Court long ago recognized that “anyone

entering into an arrangement with the Government

takes the risk of having accurately ascertained that

he who purports to act for the Government stays

within the bounds of his authority. The scope of this

authority may be explicitly defined by Congress or be

limited by delegated legislation, properly exercised

through the rule-making power.” Fed. Crop Ins. Corp.

v. Merrill, 332 U.S. 380, 384 (1947). Individual

officials cannot by practice or pronouncement deem

information confidential. Accordingly, there must be

a statute or duly-promulgated regulation on point.

For example, in 41 C.F.R. 60-40.3, the Department

of Labor ruled “portions of affirmative action plans

such as goals and timetables which would be

confidential commercial or financial information

because they indicate, and only to the extent that they

indicate, that a contractor plans major shifts or

changes in his personnel requirements and he has not

made this information available to the public.” In

17

other words, the DOL by promulgated rule brought a

certain category of information within Exemption 4’s

scope. Similarly, the USDA adopted a rule

categorizing as confidential applications for

agricultural research funding. Under 7 C.F.R.

3430.21, “[n]ames of submitting institutions and

individuals, as well as application contents and

evaluations, will be kept confidential.” Accord, e.g., 7

C.F.R. 278.1(q)(3)(iv) (designating social security

numbers and related records as “confidential”).

Congress also can and has specifically designated

categories of information to be confidential by statute.

26 U.S.C. 6103(a), for example, provides that tax

returns and return information “shall be confidential.” 42 U.S.C. 299b-22 provides that hospitals’

patient safety work product “shall be confidential.” 35

U.S.C. 122(a) provides that “applications for patents

shall be held in confidence.” 7 U.S.C. 2426 likewise

provides that “[a]pplications for plant variety

protection and their contents shall be kept in

confidence.” See also 15 U.S.C. 57b-2; 7 U.S.C. 2619;

7 U.S.C. 4912. Congress has determined in several

different

categories—including

arguably

the

information at issue here (prospectively)—that

certain

commercial

information

should

be

confidential and not released in response to a FOIA

request.

In the present case, the USDA argued that it had

made promises of confidentiality regarding the SNAP

benefits through its “long standing policy.” Decl. of

Div. Dir. Andrea Gold, JA 71–72. But in the absence

18

of any statute or promulgated rule stating that policy,

such an affidavit is legally insufficient to create a

categorical exemption that would deprive the public

of important information about government contracts

and contractors.

Alternatively, the USDA initially argued, and the

District Court initially held, that the SNAP statute, 7

U.S.C. 2018,5 made the requested documents exempt

under FOIA Exemption 3. Argus Leader Media v. U.S.

Dep’t of Agric., 900 F. Supp. 2d 997 (D.S.D. 2012),

rev’d and remanded, 740 F.3d 1172 (8th Cir. 2014).

The Eighth Circuit reversed, holding that while the

SNAP statute made some documents exempt from

disclosure, it did not affect the documents Argus

Leader was requesting. That holding, which was

correct, was allegedly the impetus for Congress to

deem the documents confidential in future cases. See

Agric. Improvement Act of 2018, Pub. L. No. 115-334,

132 Stat 4490; see also Pet. Br. 45 n.29; but see Resp.

Br. 17–23 (arguing the statutory amendment does not

apply). The fact that Congress statutorily designated

certain information confidential shows that such

determinations can be made when appropriate.

So, whether information should be shielded from

public scrutiny because disclosure would result in

That statute provides: “Regulations issued pursuant to this

chapter shall provide for safeguards which limit the use or

disclosure of information obtained under the authority granted

by this subsection to purposes directly connected with

administration and enforcement of the provisions of this chapter

or the regulations issued pursuant to this chapter.”

5

19

substantial competitive harm is a legislative decision,

not a judicial determination. Congress not only can

but has actively deemed certain information

confidential. Courts should follow its lead rather than

determining confidentiality on a case-by-case basis.

***

This Court should reject the National Parks test

and interpret Exemption 4 according to its plain

language. Relying on hypothetical harms to government contractors has prevented uncovering thousands of overpriced contracts and saving millions in

taxpayer funds. Expanding Exemption 4 to exempt

any information a contractor deems confidential

exacerbates the injury to FOIA, the public fisc, and all

tax payers.

Just as this Court has interpreted “confidential” in

Exemption 7 to apply only when a properly authorized

government actor has given an informant assurance

of confidentiality, the term “confidential” in

Exemption 4 only applies when Congress by statute

or an agency through regulation has provided an

assurance of confidentiality. The Eighth Circuit’s

judgment in Argus Leader Media v. U.S. Dep’t of

Agric., 889 F.3d 914, 916 (8th Cir. 2018), should be

affirmed not because it correctly applied National

Parks, but rather because, at the time of the request,

neither Congress nor USDA had deemed the

information “confidential.”

20

CONCLUSION

The court of appeals should be affirmed.

Respectfully submitted,

John J. Bursch

David A. Cortman

Rory T. Gray

ALLIANCE DEFENDING

FREEDOM

440 First Street, N.W.

Suite 600

Washington, D.C. 20001

(616) 450-4235

jbursch@ADFlegal.org

MARCH 2019

Michael J. Tierney

Counsel of Record

WADLEIGH, STARR &

PETERS, PLLC

95 Market Street

Manchester, NH 03101

(603) 669-4140

mtierney@wadleighlaw.com