Supreme Court weakens FOIA, undermining Americans’ right to know

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An open and transparent government took another hit when the Supreme Court ruled to broaden the definition of “confidential” materials that are exempt from Freedom of Information Act (FOIA) requests.  This ruling means Americans will have less access to information about how their tax dollars are spent or if food and car companies are meeting safety regulations, and could provide cover for government agencies to reduce resources allocated toward responding to FOIA requests.

FOIA is among the most powerful tools activists, journalists and ordinary Americans have to gain access to government records and data.  Defending Rights and Dissent regularly makes FOIA requests to uncover threats and tactics of government repression and expose constitutional violations.  It was through FOIA requests, that DRAD even learned how it and its members were targeted by the FBI for many years.

“Given the temptation, common across the private and public sectors, to regard as secret all information that need not be disclosed, I fear the majority’s reading will deprive the public of information for reasons no better than convenience, skittishness, or bureaucratic inertia,” Justice Breyer wrote in the dissenting opinion.

Before the Supreme Court’s June 24 ruling, the previous definition of “confidential”, which had been in effect since 1974, included only information that would cause “substantial harm” if publicized.  This meant that information could be kept private only if it was likely “(1) to impair the Government’s ability to obtain necessary information in the future; or (2) to cause substantial harm to the competitive position of the person from whom the information was obtained.”

This bar to keep things secret was never that high to begin with, and it was frequently abused by companies to keep the public and their competition in the dark on information they didn’t want widely shared.   But under this expanded definition, businesses or entire industries are now likely to dramatically increase the amount of information they deem secret to prevent it from becoming public.   This will reduce a significant amount of information available through FOIA requests, meaning government agencies will put less effort into addressing and fulfilling these requests.

“The court’s decision effectively gives businesses relying on taxpayer dollars the ability to decide for themselves what data the public will see about how that money is spent,” said Maribel Perez Wadsworth, publisher of USA TODAY. “This is a step backward for openness and a misreading of the very purpose of the Freedom of Information Act.”



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