Friday, August 23, 2019

Eagle Butte
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U.S. Supreme Court hears freedom of information case involving South Dakota newspaper

To sit in the courtroom of the Supreme Court of the United States and watch the nine justices in action is one thing. To sit in the courtroom and watch the justices in action when the issue is about freedom of information and the public’s right to know in America is a privilege.

So, it was on April 22 that I witnessed the Supreme Court hear oral arguments in the case of Food Marketing Institute v. Argus Leader Media. This case is about grocers and the federal government wanting to block the public release of information about government payments to businesses participating in the Supplemental Nutrition Assistance Program (SNAP, commonly known as the food stamps program).

The Sioux Falls Argus Leader has been pursuing this information for the past decade. The newspaper filed its first federal Freedom of Information Act request for the SNAP payments data in 2011. The newspaper won in federal courts but a Hail Mary pass by the grocers put the case before the Supreme Court this year.

The case in part pivots on the definition of the word “confidential” in the federal Freedom of Information Act.

Attorneys arguing against the release of the SNAP data said the Court should rely on a more strict, dictionary-type definition of the word confidential. The attorney for the Argus Leader said that over the years Congress and the courts have developed a standard for the meaning of the word as it relates to the Freedom of Information Act law and the standard should remain.

Big deal, you say?

Why should we care about SNAP data? And should we (the public) even need to see this data?

The Argus Leader has reported extensively the past decade on why this information is important to the public. It would help protect against waste and abuse of taxpayer dollars. Also, it would help more clearly identify and understand areas of our country that are being served (or not served) by the SNAP program and what this government program means to our society. In short, public release of this information matters and serves a public good.

However, because this is the U.S. Supreme Court, this case looms larger than just the SNAP data request. It’s rare that a case involving the federal Freedom of Information Act and the press comes before the Supreme Court.

If the court decides to adopt the grocers’ argument in this case, it could deliver a huge blow to the public’s right to know. Remember the news stories about the military paying $640 for a toilet seat? That sort of thing may no longer be known publicly if the court were to dramatically roll back 40 years of FOIA law as it relates to this specific exemption in the law.

The ripple effect on FOIA law coming from this court decision could extend far and wide. In other words, hold your breath.

Actually, that’s how it felt while sitting through 62 minutes of the oral arguments. I felt as if I were holding my breath the entire time.

The hour was intense, fast-paced and riveting.

Evan Young, the attorney representing the Food Marketing Institute, was less than a minute into his oral argument when Justice Sonia Sotomayor interrupted him with a question.

Quickly, other justices began peppering the attorney with questions. A volley of questions and answers ensued throughout. At least 63 questions were asked by eight of the nine justices during the 62 minutes of arguments. Only Justice Clarence Thomas did not ask a question, but he rarely ever does.

It’s fascinating to watch the Supreme Court in action. It’s not often the public gets to see all nine justices together.  Perhaps on TV when the president delivers the State of the Union address to Congress or when the justices pose for a Court photo, but the oral arguments present the best of the rare opportunities.

I sometimes found myself distracted from the arguments because I became absorbed in watching the body language and subtle interactions among the justices. For instance, Justice Stephen Breyer on more than one occasion after he posed a lengthy question would glance over at Chief Justice John Roberts, as if to say, “What did you think about that question, Chief?”

Or, that Justice Samuel Alito spent much of the hour rocking back and forth in his high-back leather chair. Or, that Justice Brett Kavanaugh sat upright and almost on the edge of his chair, leaning forward to listen to the presenting attorneys.  Chief Justice Roberts appeared to be the least animated or fidgety. He looked head-on at the presenting attorneys and his demeanor and facial expression rarely changed.

Since no electronic devices are allowed in the courtroom, one must try to capture a mental image of the scene as best possible – something not easy when we are so accustomed to reaching for our phone to take a snapshot of everything before us. There was very little noise or distraction throughout the proceedings, except the few times when the audience of a few hundred would laugh softly at Justice Breyer’s engaging comments.

At 11:07 a.m., after five minutes of rebuttal argument by the grocers’ attorney, Chief Justice Roberts abruptly announced: “Thank you, counsel. The case is submitted.”

And that was that. Now we must wait until sometime later this spring when the Court will announce its decision in this case.

Hold your breath.

(David Bordewyk is executive director at South Dakota Newspaper Association. SDNA represents the state’s 125 week and daily newspapers.)