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

Stacks of files in a dark office
Stacks of files in a dark office
Lamya Agarwala,
ACLU Speech, Privacy, and Technology Project
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April 22, 2019

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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