Quick fix for FOIA

Supreme Court erred in expanding exception for business records; Congress should step in.

If you’re a Republican who has enjoyed the coverage of Hillary Clinton’s private email server over the past six years, you can thank the Freedom of Information Act.

Ditto with revelations about the Fast and Furious scandal during the Obama administration. In both cases, the conservative Judicial Watchdog relied on records made available through FOIA to raise the alarm.

For more than half a century, the law has been a fundamental safeguard in our democracy. That’s because American government doesn’t just exist for the people — it is, in fact, of the people. We citizens actually own the data the government collects.

That’s what makes a decision this week by the U.S. Supreme Court so troubling. A 6-3 majority drove a hole straight through this sacred act, using an unlikely vehicle to do it: Webster’s dictionary. By adopting a literal interpretation of the word “confidential,” Justice Neil Gorsuch authored an opinion that says the government can keep secret any documents it collects from businesses so long as it has arranged with the business to do so in advance.

That’s not just a problem for the countless journalists, academics, authors and watchdog groups of every political persuasion who depend on the act to give us information.

It’s a problem for our democracy. The law was never perfect: Agencies’ responses are usually far too slow and — to no one’s surprise — Congress exempted itself altogether. But the hard-fought law signed by President Lyndon B. Johnson after more than a decade of debate among the best tools we have to hold government accountable.

Of course, there are logical exceptions to the law. The government can’t be forced to turn over classified information, nor should a private company seeking a patent have its confidential trade secrets revealed to competitors.

On Monday, though, the court’s majority took one of the exceptions and expanded it beyond all recognition.

Since 1974, a holding by the D.C. Circuit Court of Appeals has held that a government agency can avail itself of the business record exemption only if it can show that the records are confidential and that their disclosure would harm the company. Even in Texas, where the business exception in the Texas Public Information Act is often abused, a showing of likely harm is required before the government can keep business records in its possession secret.

That 1974 holding was widely followed in courts across the U.S. but had never been formally adopted by the Supreme Court. Monday’s case was about whether it should be, and the majority decided the answer is no.

Enter Webster’s. In his opinion, Gorsuch reasoned that since the dictionary definition of “confidential” includes no mention of the word “harm” then neither should its legal definition as applied to FOIA. Never mind that 45 years of legal history said differently. His decision stems from his narrow approach to statutory interpretation, and it may offer a clue as to where the court is headed.

Regardless, the result in this case was foolish.

The new interpretation turns FOIA’s purpose on its head. Congress passed the law precisely because it believed Washington’s many agencies, left to their own devices, would err on the side of secrecy, keeping hidden anything they’re not required to divulge.

The business records exception adequately protected businesses from the release of documents that would have put them at an unfair disadvantage. Absent that risk or a valid basis for another exception, the people were entitled to see anything the government sees.

That latter principle was cast aside in Monday’s decision, which seems to put businesses’ interests before the people’s business.

That threatens transparency and accountability in a country that can’t function without an informed citizenry.

Under this new standard, the Chronicle’s Matt Dempsey likely couldn’t have informed Houston readers about Arkema, the French chemical company whose environmental violations and reckless release of toxic chemicals during Hurricane Harvey put the public at risk. If the company and the Environmental Protection Agency had agreed beforehand to keep records hidden, Dempsey wouldn’t have had access.

Sure, agencies can say no to such an agreement. But in this political atmosphere, we’re not sure how often that would happen.

The same could be said for any records whose release expose wrongdoing, harmful industry practices and corruption at a business regulated by a federal agency. Texas lawmakers, to their credit, recently repaired a similar breach to the state’s open records law created by a Texas Supreme Court ruling.

Congress should respond with a quick fix: amend the FOIA to make clear that the courts have been using the right definition of confidential all along, regardless of what Gorsuch and Mr. Webster have to say.

We can’t allow a law of this magnitude to be weakened on a technicality.