Under FOIA, certain data may be protected from disclosure if it relates to confidential information.
By NACS Online
On May 8th, the 8th Circuit Court of Appeals upheldthe District Court for South Dakota, and found that releasing retail Supplemental Nutrition Assistance Program (SNAP) sales data would not cause substantial competitive harm and was not, therefore, protected from disclosure under the Freedom of Information Act (FOIA). Under FOIA, certain data may be protected from disclosure if it relates to “trade secrets and commercial or financial information” that is “privileged or confidential.” The court, however, found that while store level redemption data had a “likelihood of commercial usefulness,” it was not the sort of commercial information that, if shared publicly, would result in “substantial competitive harm”—and is not protected from public disclosure.
The case stems from a 2011 FOIA request made by the Argus Leader, a South Dakota newspaper, to the U.S. Department of Agriculture (USDA) seeking a variety of SNAP data, including individual store-level redemption data. USDA refused to release the retailer-specific revenue data, citing certain FOIA exemptions, including that such information was confidential financial information. The newspaper sued the agency in federal court, seeking judgment that the retailer-specific revenue data was not exempt from FOIA disclosure.
After a long legal battle, in November 2016, the U.S. District Court for the District of South Dakota found that SNAP retailer redemption data should be disclosed to the public and was not protected as confidential business data under FOIA. Subsequently, in January 2017, USDA released a memorandum, stating that it would not appeal the court’s decision and would instead comply with the court’s decision and release the SNAP retailer redemption data. At that point the Food Marketing Institute and the National Grocers Association intervened in the case and appealed, which led to the May 8th ruling.
NACS has been monitoring this matter since the it first arose and filed comments with USDA back in September 2014 urging the Agency to treat aggregated SNAP redemption data at the individual store level as “confidential business information,” which would prevent its being released to the public in response to FOIA requests.
Stay tuned to the NACS Daily for further developments and information.