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Mon Jul 1, 2019, 05:56 AM

After Argus Leader Supreme Court loss, fight for public records moves to Congress

Next stop: Congress.

Following the U.S. Supreme Court’s decision Monday to eviscerate a 45-year legal test for public access to government records, open government advocates say they will work to fix the ruling in Congress. But the effort to address the court’s decision could take years, and it will be a battle waged against powerful business groups, including the U.S. Chamber of Commerce.

“It’s not a good day for transparency,” said Adam Marshall, an attorney for the Reporters Committee for Freedom of the Press, a media advocacy group. He noted that the ruling was at odds with longstanding jurisprudence that prioritized the release of government records over secrecy.

The court ruled 6-3 in Food Marketing Institute v. Argus Leader that the government can keep business records secret when businesses don’t customarily make them public and when the government has offered assurances that they will remain secret. The decision broadened the term of “confidential.” A 1974 appeals court had ruled that records could remain secret only if their release would cause a business substantial competitive harm, but the Supreme Court rejected that test.

The Argus Leader had sought the annual amounts that taxpayers paid to retailers who accept food stamps. The court’s opinion, authored by Associate Justice Neil Gorsuch, ignored the Argus Leader’s contention that the information constituted taxpayer spending records. Nor, Marshall noted, did Gorsuch acknowledge that Congress in 2016 amended the Freedom of Information Act by adding a “foreseeable harm standard.” That standard, much like the competitive harm standard the court rejected, requires agencies to assess if releasing records would create a harm.

Read more: https://www.argusleader.com/story/news/2019/06/28/supreme-court-loss-public-records-foia-argus-leader-congress-journalism/1589255001/

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