Supreme Court Limits Access to Government Records, Drops Harm Requirement for Withholding “Confidential” Information

June 24, 2019

The Supreme Court today narrowed public access to government documents by expanding the definition of "confidential" information. The 6-3 decision by Justice Gorsuch in Food Marketing Institute v. Argus Leader Media overturns four decades of caselaw which held that a company must show substantial competitive harm to block an open government request. Writing in dissent, Justice Breyer, joined by Justices Ginsburg and Sotomayor, emphasized that the FOIA required some showing of harm to prevent public release of business records collected by federal agencies. "The whole point of FOIA is to give the public access to information it cannot otherwise obtain." In an amicus brief, EPIC warned the Court that removing the harm requirement "would deprive the public, and government watchdogs such as EPIC, of access to important information about 'what the government is up to.'" EPIC described several of its own FOIA cases — including the now defunct airport body scanner program and the ongoing probe of Facebook — where access to commercial records made possible meaningful oversight and reform. Twenty members of the EPIC Advisory Board, distinguished experts in law, technology, and public policy, signed the amicus brief.

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