WASHINGTON — FMI – The Food Industry Association on March 17 declared its strong opposition to legislation introduced by Senator Dianne Feinstein of California, Senator Chuck Grassley of Iowa and Senator Patrick Leahy of Vermont that FMI asserted may violate the confidentiality of store-level sales data for retailers who participate in the Supplemental Nutrition Assistance Program.

The sponsors of the bill, the Open and Responsive Government Act, said it aimed to reverse recent developments that they said undermined the public’s right to access information and hold government accountable.

The legislation would restore a legal interpretation of the Freedom of Information Act’s (FOIA) exemption regarding confidential commercial information, which was set aside by the Supreme Court in its 2019 decision in Food Marketing Institute versus Argus Leader Media. The sponsors said the bill also would respond to recent regulatory actions by making clear that any information which does not otherwise fall within one of FOIA’s nine exemptions should be made public — thus, reinforcing FOIA’s presumption of openness and transparency. 

“The people have a right to know what their government is doing and hold it accountable for its actions. Our bill will ensure that FOIA requests are processed quickly and accurately and that the transparency provided by the law is protected,” Ms. Feinstein said. 

“It’s only through public oversight and transparency that we ensure government programs are operating as intended, without any waste, fraud or abuse,” Mr. Grassley said. “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.” 

Mr. Leahy added, “Our bill is a targeted, commonsense step to bolster our premier transparency law, the FOIA. This bill would limit the extent to which the government can use a recent Supreme Court opinion to justify abuses of a particular FOIA exemption to withhold information.” 

Bill sponsors explained that in 2019 the Supreme Court in Food Marketing Institute versus Argus Leader Media ruled that a longstanding interpretation of FOIA’s Exemption 4 — often called the National Parks standard — was inconsistent with FOIA’s text and structure. For decades, the National Parks standard made clear that information only may be withheld from the public as “confidential” under Exemption 4 if its disclosure would cause “substantial competitive harm” to the person or entity that provided the information to the government.

Sponsors said by setting aside this standard, the court’s decision significantly broadened the scope of Exemption 4, making it more difficult for the media and general public to learn about government programs and hold accountable those who administer them. To rectify this, the Open and Responsive Government Act would update FOIA Exemption 4 to include key accountability language from National Parks, ensuring continued access to information.

Leslie Sarasin, president and chief executive officer, FMI (formerly the Food Marketing Institute), explained FMI’s opposition to the legislation.

“In 2019, FMI sought to protect the confidentiality of store-level sales data for retailers who participate in Supplemental Nutrition Assistance Program. The US Supreme Court’s opinion in Food Marketing Institute versus Argus Leader Media clarified the FOIA’s Exemption 4 to prevent the disclosure of confidential commercial information that would put businesses at competitive disadvantages,” Ms. Sarasin said. “Unfortunately, this bill would bring back the complex test that was rejected by every member of the Supreme Court. Legislative history tells us FOIA was created to shine a light on actions by the government, not on that of private parties.

“Our industry’s commitment to the shopper remains constant amidst seismic marketplace shifts,” Ms. Sarasin said. “The nation’s grocery stores have long kept confidential the amount consumers spend at individual stores whether through payment by cash, credit, debit or SNAP. This store-level sales data collected by the government to facilitate these benefits remains undoubtedly confidential because its release would provide an unfair advantage to competitors — particularly those without brick-and-mortar locations in the area.”