The Supreme Court appears headed for a ruling that could dramatically restrict access to federal government records with details about private businesses
Loeb said that when Congress protected “confidential” business and financial information in 1974, it was incorporating the concept of harm to the business already existing under common law.
Evan Young, representing food retailers through the Food Marketing Institute, said having the court’s effort to assess harm to businesses has proved complicated. In the newspaper’s case, a judge ruled after a trial that the harm resulting from the release of the retail data on food-stamp spending was too speculative to block disclosure.
Kagan said the appeals court had imported language that “the statute at least does not immediately suggest.” However, at another point Kagan suggested that the law might require at least some effort on the businesses’ part to keep the information secret, rather than the mere fact it hasn’t been publicized.
Justice Department attorney Anthony Yang said the Agriculture Department wants to keep the data private because retailers have expected that for decades. “The government is trying to keep its word,” he said.
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