watch on washington

We cannot decide how well our government is doing if we don’t know what our government is doing.

The US Supreme Court last month said we can’t see certain information we may well need as self-governing citizens.

The court ruled 6-3 in Food Marketing Institute v. Argus Leader Media, that the Freedom of Information Act (FoIA) does not give the public access to private companies’ records given to a federal agency if the agency promised to keep it secret.

In the decision, the court voided a decades-long practice – supported by lower court decisions – that such “confidential” information could be released unless it caused “substantial harm” to the business. Disclosure to the public should involve safety concerns or to exposing waste, fraud or abuse, among other reasons.

Justice Neil Gorsuch in writing the majority opinion agreed with a grocery trade group. Current law, he said, frees agencies and private companies from needing a specific reason for secrecy. Just a company note on records it considers “confidential” justifies denying an FoIA request.

The decision is likely to decrease public access to vital records. This includes information about private companies that receive federal funds. It will hamper if not stymie obtaining information the public can use to determine fraud, overcharging, the quality of work or the lack of quality.

The decision comes at a time it’s more likely a private company will be contracted to perform government projects or duties.

In the case at hand, the Sioux Falls, SD, Argus Leader newspaper sought information in 2011. Its FoIA request was for the number of in-state stores participating in the federal food stamp program and store-by-store data on how many purchases were made using food stamps.

Justice Stephen Breyer disagreed. He said “the whole point of the Freedom of Information Act first signed into law in 1966 is to give the public access to information it cannot otherwise obtain.”

Breyer said that given the tendencies to treat all information as private if not required to be disclosed, “the ruling … will deprive the public of information for reasons no better than convenience, skittishness or bureaucratic inertia.”

The Supreme Court supported non-disclosure under FoIA based on a company’s self-designation although an engaged electorate requires the highest degree of government openness and transparency.

We cannot decide how our government is doing if we don’t know what our government is doing. That’s especially true when government is spending our tax money but refusing to make itself or the businesses it spends our money with accountable to us.

Gene Policinski is president and chief operating officer of the Freedom Forum Institute. He can be reached at gpolicinski@freedomforum.org .

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