Congress stays out of FOIA fray

Dec 27, 2018

South Dakota
newspaper and
grocery industry in
dispute over SNAP data

By Tonda F. Rush
Director of Public Policy | NNA
WASHINGTON—Congress declined to intervene in a Freedom of Information Act dispute between a South Dakota newspaper and the grocery industry in December when the 2018 Agriculture Improvement Act—the farm bill—cleared the House and Senate without an FOIA amendment to exempt grocers’ data.
Last fall, the National Newspaper Association jumped into the fray on behalf of the newspaper when the House version of the farm bill threatened to overturn two decisions by the U.S. Court of Appeals for the Eighth Circuit in favor of the Sioux Falls Argus Leader’s request for information. The dispute is over annual reports to the U.S. Department of Agriculture from grocery retailers on their transactions under the Supplemental Nutrition Assistance Program, formerly the food stamp program.
The Argus has been seeking the SNAP data for a decade. It began its quest with an FOIA request during the Great Recession when an investigative team followed a hunch that more local retailers were outfitting themselves to qualify for SNAP sales. The newspaper had several questions about the way the SNAP program was working in South Dakota. The information it wanted did not identify SNAP beneficiaries, but it did identify the retailers. The data were in reports compiled by a third-party electronic transactions contractor that gathered sales data whenever a SNAP user swiped a card at a retailer’s terminal.
The Argus request was initially resisted by the U.S. Department of Agriculture. Then the Food Marketing Institute, an advocacy organization for the food retailer industry, took over the defense, claiming release of the information would harm competitive interests. Two reviews by the Eighth Circuit were decided in the newspaper’s favor.
But the Argus still does not have the data. That is because Supreme Court Justice Neil Gorsuch, acting in his supervisory capacity over the Eighth Circuit, put a hold on the release while the high court decided whether to review the case. Then, apparently not trusting the courts, the grocery industry sought an exemption as a rider to the Farm Bill.
NNA objected to the rider and called on Congress to keep the information public. In a letter from NNA then-president, Susan Rowell, NNA asked House and Senate leadership to respect the principles behind the FOIA.
NNA said: “Community newspapers see considerable public interest value in USDA’s annual SNAP retailer data. The public availability of this information would enable journalists to probe many aspects of the SNAP program that should concern Congress, such as:
• Existence of food deserts, particularly in the rural and highly urban areas.
• Possible food stamp fraud, which a skilled journalist might detect from dramatically disparate utilization of the benefit between similarly situated retailers.
• Development of new capabilities by certain retailers who have begun to welcome SNAP beneficiaries, such as new freezers, dispensers and displays.
• Competitive pricing among locations where SNAP beneficiaries might be able to stretch their resources further. All of these stories would require a newspaper to be able to analyze actual retailer utilization data.
NNA’s Congressional Action Team and news organizations, including the American Society of News Editors, asked members of Congress to respect the court process.
“The grocers have been saying exposure of the data would create competitive harm for smaller retailers,” NNA Government Relations Committee Chair Matt Paxton said. “But the courts have already looked at those claims. Because there are proprietary programs that the larger retailers can use for a fee, the individual retailer information is already available within the industry. If smaller businesses are concerned that larger ones will go after their customers, the court has already ruled that release of the data will not expose them more than they already are.
“For NNA, two principles are involved in this matter. One is that, in general, we don’t agree with the piecemeal exemptions to FOIA that Congress is sometimes prone to hand out to anyone who asks. There already are broad exemptions for trade secrets, proprietary business information and other legitimate concerns. Let’s let those do their work, and if they do not exempt information, that is a pretty good sign that it is information that ought to be public.
“The other principle is that this SNAP program is paid for by tax dollars. Journalists have a legitimate mission in helping us to understand how our tax money is used. I am cheering the Argus on for investing in this investigative work, and Congress for declining to put new obstacles in the newspaper’s path,” Paxton said. “We all have been doing some good work here to protect the public’s information. I hope the court allows the information, at long last, to be released to the Argus.”
Some in the grocery industry were not happy that the rider was left out of the final bill.
In a public statement, the National Grocers Association said: “A top priority to protect store-level SNAP sales data was not included in the Farm Bill. We will work closely with Congress and industry stakeholders to identify viable solutions to ensure that confidential information that could be used to give competitors an unfair advantage, particularly over many small and medium size grocers, is protected from public disclosure.”