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S. 2220: Open and Responsive Government Act of 2019

Should a June Supreme Court decision which permits less governmental transparency be overturned by Congress?

Context

The South Dakota newspaper _The Argus Leader _was writing an investigative article about the federal food stamp program, so they filed a Freedom of Information Act (FOIA) request. As part of the request, in 2011 they asked the U.S. Department of Agriculture for the names and addresses of all stores which participate in the food stamp program.

But the department refused to comply, citing one of the nine exemptions to the Freedom of Information Act. Specifically they cited exemption #4, which prohibits “trade secrets and commercial or financial information” from being revealed. The newspaper, believing that the exemption didn’t apply, sued. Although both the district and appeals courts ruled in favor of the newspaper, the Supreme Court reversed those lower court decisions in June.

In Food Marketing Institute v. Argus Leader Media, the Supreme Court significantly widened the scope of exemption #4. They eliminated the longstanding requirement that the exemption could only be invoked by the government if disclosure of the information sought would cause a “substantial competitive harm” to the business entity or entities revealed.

In practice, this makes it much easier for the government to withhold information from public disclosure under exemption #4.

The decision crossed party lines a bit, with Elena Kagan joining the five conservative justices in the 6–3 decision.

What the bill does

The Open and Responsive Government Act is a bipartisan bill that would put back the previous precedent into the Freedom of Information Act, once again only allowing the government to withhold information from a FOIA request under exemption #4 if it would cause a “substantial competitive harm” to a company.

It was introduced in the Senate on July 23, less than a month after the Supreme Court decision, as bill number S. 2220 by Sen. Chuck Grassley (R-IA).

What supporters say

Supporters argue that the bill requires more transparency and openness, which should result in a better functioning government. They also argue the bill reverts back to decades of precedent, rather than overturning it wholesale as the Supreme Court did recently.

“The people’s business ought to be available to the people,” Sen. Grassley said in a press release. “It’s only through public oversight and transparency that we ensure government programs are operating as intended, without any waste, fraud, or abuse.”

“Transparency is something worth fighting for, and it seems we’re always in an uphill battle to keep the sunlight shining on government,” Sen. Grassley continued. “This balanced and bipartisan bill responds to recent court rulings and regulatory actions, restoring pro-transparency principles and making crystal clear where Congress stands on the public’s right to know.”

What opponents say

Opponents counter that a broad reading of exemption #4 is consistent with the intent of why the exemption was enacted in the first place: to allow private businesses to do business with the government when necessary.

“When Congress enacted FOIA it sought a ‘workable balance’ between disclosure and other governmental interests,” Justice Neil Gorsuch wrote for the Supreme Court’s majority opinion, “interests that may include providing private parties with sufficient assurances about the treatment of their proprietary information so they will cooperate in federal programs and supply the government with information vital to its work.”

“Presumably to induce retailers to participate in SNAP [Supplemental Nutrition Assistance Program, the official name for food stamps] and provide store-level information it finds useful to its administration of the program, the government has long promised them that it will keep their information private,” Gorsuch continued.

Odds of passage

The bill has attracted three bipartisan Senate cosponsors: two Democrats and one Republican.

While the Supreme Court’s majority crossed ideological lines in this decision, the Court’s minority were all from the left — making it interesting that the Senate opposition to the decision appears to be, at least judging by this bill’s cosponsors, evenly bipartisan.

It awaits a potential vote in the Senate Judiciary Committee.

Last updated Sep 2, 2019. View all GovTrack summaries.

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