ASNE and APME protest potential FOIA exemption for SNAP data
The American Society of News Editors (“ASNE”) and Associated Press Media Editors (“APME”) sent a joint letter to Chairman Pat Roberts, Ranking Member Debbie Stabenow and members of the Senate Committee on Agriculture, Nutrition and Forestry requesting removal of a FOIA exemption from two bills being considered in conference committee this week after differing versions passed the House and Senate. The specific bills in question are HR 2 (commonly referred to as the “Farm Bill”) and HR 6147 (the appropriations bill for the Department of Agriculture). The proposed FOIA exemptions would bar disclosure of data relating to retailers participating in the Supplemental Nutritional Assistance Program (“SNAP”).Our letter, co-signed by ASNE President Nancy Barnes, Editor & Executive Vice President of News at the Houston Chronicle, and Angie Muhs, Executive Editor at the Springfield (Ill.) State Journal-Register, raises procedural and substantive concerns with the proposed FOIA exemptions. Procedurally, these exemptions appear as two lines in bills that are hundreds of pages long. They have been the subject of no public hearings or discussion, despite the fact that they are intended to override a recent decision from the United States Court of Appeals for the Eighth Circuit and do not appear to have the full support of the affected agency, the United States Department of Agriculture (“USDA”).
The genesis for these provisions comes from a FOIA request filed in 2010 by reporters from the Sioux Falls (S.D.) Argus Leader seeking information about retailers participating in the SNAP program. Those reporters wanted to track participation of stores accepting SNAP payments, especially in areas sometimes referred to as “food deserts.” Government distributions of SNAP funds increased from $25 billion in 2004 (before the recession) to $80 billion in 2013 (as the recession was waning). The types of stores eligible to accept SNAP funds increased as well, moving beyond just grocery stores to other retailers, including even gas stations. The USDA denied the FOIA request and a subsequent appeal. The Argus Leader went to federal court, where a United States District Court ordered the USDA to release this data. At this point, the USDA actually dropped out of the case, deciding not to appeal the matter to a federal appeals court. But the Food Marketing Institute stepped up and appealed to the United States Court of Appeals for the Eighth Circuit on behalf of interested retailers (who, by the way, seem to be in the clear minority of all retailers nationwide). The Court of Appeals also ruled in favor of the Argus Leader, though release of the data was recently stayed via a decision issued by Supreme Court Justice Gorsuch, pending a decision by the entire Supreme Court as to whether it will hear this case.
There is a lot at stake here, as this retailer-related SNAP data is both a massive government benefits program, still distributing more than $70 billion in taxpayer funds each year, and a useful indicator of whether that program is truly serving recipients of the funds. As our letter notes, access to this data can help answer questions including: “What happens if there are no such stores nearby? Where do SNAP recipients go? Are they forced to do their entire food shopping at, for instance, gas stations? Can we recognize patterns in how stores market and promote certain products around the times that SNAP benefits are paid?”
We hope that ASNE and APME members will join us in publicizing this issue and, if you are comfortable doing so, contacting your member of Congress if he or she sits on the Senate Committee on Agriculture, Nutrition and Forestry or the House Committee on Agriculture.
Please do not hesitate to contact ASNE Legal Counsel Kevin M. Goldberg at email@example.com or 703-812-0462 if you need more information.