USA Today, June 27, 2019
This Supreme Court decision doesn’t help those on food stamps. All it does is protect the interests of the federal government and business.
This week the Supreme Court ruled that the federal government can keep secret the food stamp sales totals of grocery stores. By a 6-3 vote, the court decided that such business records are exempt from disclosure under the federal Freedom of Information Act (FOIA). This case, started eight years ago by the Argus Leader (a member of the USA Today network), is another landmark in cloaking federal data from the American people.
The court upheld retail sales data secrecy despite no evidence that such disclosures would harm anyone. Argus Leader news editor Cory Myers labeled the decision “a massive blow to the public’s right to know how its tax dollars are being spent, and who is benefiting.”
Controversies over the food stamp program have multiplied as evidence accumulated revealing that the program is a public health disaster. A 2017 study published in BMC Public Health found that food stamp recipients were twice as likely to be obese as eligible non-recipients. This confirms a 2015 USDA report which revealed that food stamp recipients are more likely to be obese than eligible non-recipients (40% vs. 32%). But the feds have consistently sought to limit public information on the program.
Food stamp supporters and food retailers helped block a 2013 congressional proposal to disclose how recipients actually spend food stamps. A limited survey by USDA released in 2016 indicated that sugar sweetened beverages are the item recipients of food stamps spend the most money on.But opening up the sales data nationwide to reveal what people purchase across the nation would do far more to spur food stamp reform and cease subsidizing junk food.
Justice Stephen Breyer’s dissent yesterday warned that the decision “will deprive the public of information for reasons no better than convenience, skittishness, or bureaucratic inertia.” The Supreme Court gave a kick to a disclosure law that had already lost most of its teeth.
In October 2001, Attorney General John Ashcroft assured federal agencies that the Justice Department “will defend your decisions” to deny FOIA requests on broader grounds than previously prevailed. Judicial Watch characterized the Bush administration’s FOIA attitude as “arrogance throughout — that the government is not to be questioned.” The Bush administration blocked disclosures of almost all Patriot Act abuses, and the ACLU later complained that “responses to FOIA requests are hopelessly slow.”
“Hope and Change” arrived on President Barack Obama’s second day in office, when he called FOIA “the most prominent expression of a profound national commitment to ensuring an open Government” and declared that FOIA “should be administered with a clear presumption: In the face of doubt, openness prevails.”
Unless, of course, White House political appointees objected. Three months after Obama took office, White House counsel Gregory Craig quietly notified all federal agencies that “all documents and records that implicate the White House in any way are said to have ‘White House equities’ and must receive an extra layer of review, not by agency FOIA experts, but by the White House itself.” A 2016 congressional report titled “FOIA is Broken” noted. Anything that could tarnish the administration’s image violated its “equities.” Emails by the staff at the National Archives and Records Administration admitted: “We live in constant fear of upsetting the WH (White House).” Politico noted in 2016 that, in some cases, White House FOIA “referrals have led to years of delay.”
In 2011, Obama’s Justice Department formally proposed to permit federal agencies to falsely claim that requested documents did not exist. The ACLU complained that the proposal perverted “a law designed to provide public access to government information to be twisted to permit federal law enforcement agencies to actively lie to the American people.”
That proposal was dropped after a media backlash, but the Obama administration’s other policies undercut the law. The previously cited 2016 congressional report on FOIA noted that many journalists had abandoned “the FOIA request as a tool because delays and redactions made the request process wholly useless for reporting.” The Pentagon responded to a request for a list of titles of its reports by offering a partial response if the journalist promised to never file another FOIA request. The Drug Enforcement Agency effectively torpedoed a FOIA request regarding notorious Mexican drug lord “El Chapo” by charging $1.4 million for the response.
The Obama administration was no better than its predecessors
The Associated Press reported in 2015 that the Obama administration “set a record again for censoring government files or outright denying access to them” under FOIA. My own experience, stretching back 30 years, is that federal agencies routinely presume that anyone who has publicly criticized their programs forfeits his rights under FOIA.
We owe it to Hillary Clinton for finally obliterating FOIA’s credibility. After she was appointed secretary of state, Clinton effectively exempted herself from FOIA, setting up a private server to handle her official email. The State Department ignored 17 FOIA requests for her emails prior to 2014 and said it needed 75 years to comply with a FOIA request for Hillary’s aides’ emails. The Federal Bureau of Investigation shrugged off Hillary’s aides using a program called BleachBit to destroy 30,000 of her emails under subpoena by a congressional committee. Federal judge Royce Lamberth labeled the Clinton email affair “one of the gravest modern offenses to government transparency.”
FOIA is “getting worse under Trump,” according to the Freedom of the Press Foundation. FOIA requestors received nothing or censored files in 78% of cases in 2017, and stonewalling often seems encouraged from the Oval Office on down.
Forty-one years ago, the Supreme Court declared that FOIA’s purpose is “to ensure an informed citizenry, vital to the functioning of a democratic society.” After the Supreme Court’s Argus Leader decision, perhaps the law should be retitled “The Freedom from Information Act.” If democracy depends on transparency, and government transparency is an illusion, then what is American democracy nowadays?
James Bovard, author of “Attention Deficit Democracy,” is a member of USA TODAY’s Board of Contributors. Follow him on Twitter: @JimBovard