Yesterday, the Supreme Court held oral argument Food Marketing Institute v. Argus Leader Media, a case involving an exemption to the Freedom of Information Act (FOIA). The Supreme Court’s Public Information Office granted me a press pass to cover the arguments for this blog, since the case involves trade-secrets issues.

As I discussed previously, the FOIA contains an exemption for “trade secrets and commercial or financial information obtained from a person and privileged or confidential,” which does not need to be disclosed publicly. 5 USC 552(b)(4). This case addresses the scope of this exemption.

First, some background. Food Marketing Institute is a trade association representing retailers who operate tens of thousands of retail food stores. Argus Leader is a newspaper in Sioux Falls, South Dakota. As part of an investigation of food-stamp fraud, the newspaper filed a FOIA request with the USDA for data showing the amount of Supplemental Nutrition Assistance Program (SNAP)—formerly the Food Stamp Program—redemptions at individual stores.

While much SNAP data is publicly available, this store-level information is not. At the District Court, USDA presented evidence that the store-level data would provide a competitive advantage to other companies if released publicly. After a two-day trial, the District Court disagreed and ordered disclosure. The USDA gave notice to the retailers that it would not appeal, at which point Food Marketing Institute intervened to appeal on the USDA’s behalf.

The Eighth Circuit affirmed, relying on the D.C. Circuit’s test in Nat’l Parks & Conservation Ass’n v. Morton, 498 F.2d 765 (D.C. Cir. 1974), which eight circuits subsequently adopted. Under this test, the above exemption only applies if (1) the information at issue is kept private and not disclosed, and (2) “substantial competitive harm” would likely result if the information is publicly disclosed.

Food Marketing Institute argues that the National Parks test ignores the common meaning of the word “confidential,” thereby adding an “extratextual” requirement of showing competitive harm. Instead, it argues, the Court should apply its longstanding rules of statutory construction and give “confidential” its ordinary meaning, i.e., information “that is privately held and not disseminated,” without the need to show competitive harm if disclosed.

During oral argument, much of the Court’s questions for Food Marketing Institute’s lawyer, Evan Young, involved threshold justiciability issues that are outside this blog’s scope.

But, for our purposes, things got more interesting when Argus Leader’s lawyer, Robert Loeb, got his turn. One of Argus Leader’s primary arguments is that the Court should not look to the ordinary meaning of the term “confidential.”  Instead, because Congress used the language “trade secrets and commercial or financial information,” the Court should look to the then-existing common-law meaning of that term of art.

In its brief, Argus Leader argues that when the above exemption was enacted:

There was an established common-law term of art for non-public business information, disclosure of which would be tortious because it would cause competitive harm. Both courts and the relevant (and near-universally adopted) provisions in the first RESTATEMENT OF TORTS (1939) used the term “trade secrets and other confidential commercial information” (or some near-identical equivalent) to refer to this body of protected materials. Thus, in saying “trade secrets and other confidential commercial information,” courts and commentators meant non-public business information that would likely cause competitive harm if released.

Much of the Court’s questioning of Loeb focused on this argument. Justice Kagan, sounding like her more conservative colleagues, asked him to “give me your best textual argument” for why National Parks correctly interpreted the statute. Loeb responded by saying that the Court needs to look at the words Congress used in context, and that under common law, trade secrets included a competitive-harm requirement.

Justice Sotomayor responded by saying that the Court normally only applies common law to interpret statutory language when there is a term of art. Here, case law used different terms and phrases to cover trade secrets and confidential information. In response, Loeb argued that under the common law, there were two categories, trade secrets and confidential information. And both required a showing of competitive harm.

This didn’t seem to satisfy Justice Gorsuch, who noted that when a statute uses different words from the common law, it’s usually presumed that Congress intended a meaning other than the common law.

Justice Breyer focused on the concept of harm and how such a term would be defined. Noting that “you don’t have to write this opinion, but I might,” Justice Breyer pushed Loeb to clarify what words should be used in the opinion to describe the nature of harm that must be shown. Loeb again pointed to the common law.

Justice Alito asked whether, under common law, a showing of competitive harm was part of the claim itself or only a means for proving damages. Per Loeb, under common law, competitive harm is part of the essence of a trade secret.

Based on the Justices’ comments at oral argument, at least some of them have issues with the justiciability of this case, questioning whether Food Marketing Institute’s claims can be redressed or if they are moot. But if the Court reaches the merits of this case, I predict that it will strike the National Parks test, opting for the customary definition of “confidentiality,” without a showing of competitive harm.