USA TODAY International Edition

Court case hinges on one word: It’s ‘confidenti­al’

- Richard Wolf

WASHINGTON – The Supreme Court spent an hour Monday debating the meaning of the word “confidential.” 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 financial 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 definition, 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 “confidential” data on the federal food stamps program.

From the outset, the oral argument shaped up as a contest between the court’s five 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’ definitions and statutes’ texts – noted that different sections of the FOIA law use “confidential” differently.

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 confidential, but assurances of confidentiality the government has given private companies carry more significance.

Similarly, Associate Justice Stephen Breyer hypothesiz­ed that informatio­n could be held from the public if it’s “confidential for a legitimate reason: Release would hurt the company, or release would hurt the government.”

Left to defend a more narrow interpreta­tion of “confidential” – 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 confidential, 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.’ ”

 ?? HANNAH GABER/USA TODAY ?? Jonathan Ellis, right, and Cory Myers work for the Sioux Falls Argus Leader, which is involved in a Supreme Court case.
HANNAH GABER/USA TODAY Jonathan Ellis, right, and Cory Myers work for the Sioux Falls Argus Leader, which is involved in a Supreme Court case.

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