Restricting Public Access, Supreme Court Expands Government Confidentiality Definition

At issue was whether confidentiality, as used in a section of the Freedom of Information Act, means anything intended to be kept secret or only information likely to cause harm if publicized.
June 26, 2019 AT 8:47 AM

By Jonathan Ellis and Richard Wolf

The Supreme Court limited public and media access to government records by expanding a federal law's definition of what can be deemed confidential.

At issue was whether confidentiality, as used in a section of the Freedom of Information Act, means anything intended to be kept secret or only information likely to cause harm if publicized.

Associate Justice Neil Gorsuch wrote the 6-3 decision, with Justices Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor dissenting.

The federal government and a retailers' trade group, the Food Marketing Institute, argued for a broad definition that would leave ample room to keep data from the public. Media organizations and public interest groups favored a more narrow definition requiring harm that would make confidentiality harder to come by.

"At least where commercial or financial information is both customarily and actually treated as private by its owner and provided to the government under an assurance of privacy, the information is 'confidential' under the meaning of (FOIA)," Gorsuch ruled.

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