The Government Shouldn’t Keep the Public in the Dark Just Because Private Companies Ask It To

The government often relies on private entities to carry out its work. It has them running private prisons, designing location tracking technologies, and developing artificial intelligence (AI) systems that automate government decisions, such as determining our Medicaid benefits, bail, and even which children are purportedly at risk of abuse or neglect. Today the Supreme Court heard a case, FMI v. Argus Media, about whether working with private companies changes the government’s transparency and accountability obligations to the public. As we and several other organizations argued in a friend-of-the-court brief, it should not.

The Freedom of Information Act (FOIA), the law at the center of the case, requires the government to disclose information to the public upon request unless such information falls within one of nine narrow exemptions. The exemption on the table, Exemption 4, allows the government to withhold “trade secrets” and “commercial or financial information” that is “privileged or confidential” and was not generated by the government.

Under existing law, to successfully invoke Exemption 4, the government must show that public disclosure of that information would likely cause substantial competitive harm to a private entity. A business association, the Food Marketing Institute, is arguing that the court need only rely on a private party’s word that something is “confidential” in order to keep the requested information secret.

That is the opposite of how FOIA is supposed to work.

The case began when a reporter with Argus Leader Media, a South Dakota newspaper, submitted a FOIA request to the U.S. Department of Agriculture (USDA) seeking, among other things, the total amount of federal funds distributed to grocery stores participating in the government program that subsidizes purchases of groceries for low-income families. In other words, a newspaper was seeking information about a public program. The USDA invoked Exemption 4 and refused to disclose this information. After a bench trial, the trial judge determined that disclosure of such information would not cause substantial competitive harm to the grocery stores, and the USDA agreed to disclose the information.

A private business association — not the government — appealed and is now arguing that regardless of whether requested information causes competitive harm, any information deemed “confidential” by a private entity falls within the exemption and outside the public eye. For all contexts in which the government works with the private sector, this would effectively replace FOIA’s longstanding presumption of disclosure with one of secrecy.

FOIA exists to keep the public informed; it enables the public to provide ongoing checks and balances on government action, a core element of a functioning democracy. And knowing what the government is doing and how it’s doing it is a necessary first step to ensuring that the government isn’t violating our rights — and to taking action when it is. Indeed, we at the ACLU often deploy FOIA to get information about a variety of government operations.

While the government often invokes exemptions such as those for law enforcement “techniques and procedures” to withhold information, an expansion of Exemption 4 could exclude information by solely deferring to a company’s private interests. Indeed, Exemption 4 is already invoked in such ways. For example, Harris Corporation asked the police to withhold details about government contracts for cell site simulator equipment — more commonly known as Stingrays — under Exemption 4. And the Department of Homeland Security and Immigration and Customs Enforcement invoked this exemption to prevent disclosure of certain information about government contracts with private detention facility contractors.

To date, such attempts have often been unsuccessful. But today’s case could change that.

While it is usually a private entity’s prerogative to keep certain information secret, it can’t be the government’s. As the intricacies of government work — from surveillance equipment to algorithms to information systems — are increasingly shaped by the private sector, FOIA must remain a tool for the public to keep an eye on the government’s actions.

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Ms. Gloria Anasyrma

The term "in the dark" sounds racialist to me.

Anonymous

The Civil Rights Division is maybe the DOJ's most legitimate divisions. It should be fully funded, given necessary authorities and made totally independent of the DOJ. Since 9/11 there is virtually no oversight over state Fusion Centers and federal Preemption & Prevention grants. In short there is no substantial oversight of state and local government corruption.

Anonymous

The public should not be informed of every accusation that is made upon a person unless it becomes a conviction... period... an arrest is hardly a conviction and for some of us (not sure if in all states) this 'arrest' is on our record PERMANENTLY! I have tried to get the ACLU to take on my case as it is ridiculous. "Freedom of information" has gone too far!

Anonymous

When the “players” use creative interpretations of law, the “referees” must also. The term “government” according to Webster’s dictionary, could be a family, it could be an employer, it could be a private monopoly or cartel controlling vital services, etc. In some states private companies control the only nearby hospital, the only electric utility, the only cable provider, etc. In that context a private company is a form of “government”. One could also make a “Citizens United” claim, what are the responsibilities of “corporate-persons” - if they have rights, don’t they also have to follow laws also? Are they allow to torture or warrantless wiretap or violate the Privacy Act? The question is will the “referees” be as creative as the players exploiting the loopholes in law? 21st Century technology has made some companies genuine forms of “government”, shouldn’t it apply to constitutional law as well?

Anonymous

The U.S. Government dodged this issue back during the Bush Administration. When private contractors tortured or killed civilians, detainees and prisoners - working on behalf of American voters - the U.S. Supreme Court allowed those agencies to issue administrative bans on those crimes instead of outlawing the practice using Judicial Review. The core constitutional issue, left unresolved, was: can an oath-sworn government official (sworn to uphold the U.S. Constitution) simply farm-it-out to a private contractor? If allowed to stand, it would render Article VI and the Bill of Rights totally worthless. Any government official could betray their Oath of Office simply by farming it out to a private company. One could argue that the constitutional Oath of Office is America’s greatest check & balance designed by the Framers of the Constitution. Except for the Civil Air Patrol (teenagers) one cannot serve in government (local, state, federal) without agreeing to uphold the U.S. Constitution to limit their job authority. The Oath of Office loyalty oath legally empowers rank & file government employees (insiders) to refuse unconstitutional or illegal orders from superiors. If it worked properly officials like John Kiriakou could go to court as a plaintiff and a judge could overturn unconstitutional activities, issue an injunction and pay Kiriakou punitive damages. Kiriakou was sent to prison for upholding his Oath of Office. In other words, Kiriakou was illegally punished for being too loyal to the United States. The U.S. Constitution is a wartime governing charter, designed to be followed during wartime (Habeas Corpus, 3rd Amendment, etc) The U.S. Supreme Court has never corrected this massive abuse of power and clearly stated that a private government contractor (or campaign contributor) is part of the “government” and therefore restrained by the Bill of Rights.

Anonymous

This is an important issue -- if businesses don't want to be transparent, let them do business with others besides our government.

Paula K Schmidt

I have run into this where the municipality is signing NDA's with private enterprise who they hope to bring into the area. Dont understand how knowing their possible intent could have ill effect on them.

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