Food Marketing Institute v Argus Leader Media, DBA Argus Leader

1. Food Marketing Institute v Argus Leader Media, DBA Argus Leader DOE Patent Counsel Meeting September 10, 2019 Linda P. Field Patent Counsel Office of the Assistant General Counsel for Technology Transfer and Intellectual Property (GC-62)

2. Procedural history Argus filed FOIA request from USDA seeking names, addresses of all retail stores that participate in SNAP USDA refused to provide information invoking FOIA’s exemption 4 Argus sued to compel disclosure in district court District court applied “substantial competitive harm” test (as used by Nat’l Parks & Conservation Assn. v. Morton) District court ordered disclosure Food Marketing Institute appealed to 8th Circuit 8th Circuit affirmed Food Marketing Institute petitioned for certiorari to the Supreme Court

3. Majority DissentersBreyer, Ginsburg, Sotomayor Gorsuch, Roberts, Thomas, Alito, Kagan, Kavanaugh

4. FOIA Exemption 4 – 5 U.S.C. § 552(b)(4) Protects from disclosure trade secrets and commercial or financial information obtained from a person [that are] privileged or confidential National Parks & Conservation Assn. v. Morton Exemption 4 only applied to information whose disclosure is likely to 1) impair the Government’s ability to obtain necessary information in the future; or 2) cause substantial harm to the competitive position of the person from whom the information was obtained. Critical Mass Energy Project v. Nuclear Regulatory Commission Mandatory submissions- withhold only if ‘substantial harm’ exists Voluntary submissions – withhold only if submitter ‘customarily’ did not release to public

5. Opinion “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 under Exemption 4. FOIA does not define confidential Defined by Webster’s as private or secret Defined by Black’s Law as whenever it is customarily kept private, or at least closely held, by the person imparting it

6. Opinion cont. Dictionaries, early case law or any other usual source does not use “substantial competitive harm” as a requirement for confidential Nat’l Parks Conservation Ass’n v. Morton Is a relic from a bygone era of statutory construction Inappropriately resorted to legislative history before consulting the statute’s text and structure Engaged in a selective tour through the legislative history This court cannot approve such a casual disregard of the rules of statutory interpretation (Nat’l Parks is overturned)

7. In a nutshell As applied to FOIA, confidential will apply to information customarily kept private and when included assurance are given by the receiving party that it will be keep privately disclosed information secret No longer will a submitter need to show any harm, whether substantial or negligible

8. To know the road ahead, ask those coming back.