FOIA Advisor

FOIA News: SCOTUS grants cert in Exemption 4 FOIA Case

FOIA News (2019)Ryan MulveyComment

The Supreme Court of the United States today granted the petition for a writ of certiorari in Food Marketing Institute v. Argus Leader Media. The Argus Leader case concerns the construction and application of Exemption 4, which covers trade secrets and privilege or confidential commercial or financial information. FOIA Advisor identified the contested Eight Circuit opinion as one of its “Top federal FOIA decisions of 2018.”

The last FOIA decision issued by the Supreme Court was in Milner v. Department of the Navy, 131 S. Ct. 1259 (2011), which involved the use of Exemption 2. A few years ago, however, Justice Thomas published an interesting dissent from the denial of a petition for a writ of certiorari in New Hampshire Right to Life v. Department of Health and Human Services, 136 S. Ct. 383 (2015), in which he signaled a desire to address the “amorphous” Exemption 4 tests that had developed amongst the circuit courts and return instead to the “ordinary meaning” of the word “confidential.”