USA TODAY International Edition
Court case hinges on one word: It’s ‘confidential’
WASHINGTON – The Supreme Court spent an hour Monday debating the meaning of the word “confidential.” The result could have major implications for public access to government records.
At issue is whether that word, as used in a section of the Freedom of Information Act, means anything that’s intended to be kept secret, or only information that’s likely to cause harm if publicized.
Federal appeals courts nationwide have adopted the latter meaning by narrowly interpreting one of the law’s FOIA exemptions. “Trade secrets and commercial or financial information” should not be released to the press or public, they said, if that would result in competitive harm.
Despite a string of court decisions and congressional statutes relying on that definition, the nine justices of the Supreme Court weren’t so easily convinced.
That could spell trouble for the Sioux Falls Argus Leader in South Dakota, a Gannett newsroom (as is USA TODAY) that’s spent a decade seeking “confidential” data on the federal food stamps program.
From the outset, the oral argument shaped up as a contest between the court’s five conservative justices and its four liberals. To wrest the data it seeks from the government, the newspaper and its backers would need to win at least one conservative to its cause.
That did not appear likely, particularly when Associate Justice Neil Gorsuch – like his predecessor Antonin Scalia, a stickler for words’ definitions and statutes’ texts – noted that different sections of the FOIA law use “confidential” differently.
It wasn’t clear that all the liberal justices supported the media outlet’s FOIA arguments. Associate Justice Elena Kagan agreed not everything can be deemed confidential, but assurances of confidentiality the government has given private companies carry more significance.
Similarly, Associate Justice Stephen Breyer hypothesized that information could be held from the public if it’s “confidential for a legitimate reason: Release would hurt the company, or release would hurt the government.”
Left to defend a more narrow interpretation of “confidential” – and a more liberal interpretation of the FOIA law – was Associate Justice Sonia Sotomayor.
“We sort of naturally think that if people are going to keep something confidential, that there’s a reason for it,” she said. “You don’t just say, ‘I don’t want to disclose because I don’t feel like it.’ ”