Food Marketing Institute v. Argus Leader Media

Brief for Amici Curiae Retail Litigation Center, Inc.


  • Issue:  Statutory Construction
  • Court: U.S. Supreme Court
  • Status: Decided June 2019

Questions Presented:
Issue(s): (1) Whether the statutory term "confidential" in the Freedom of Information Act's Exemption 4 bears its ordinary meaning, thus requiring the government to withhold all "commercial or financial information" that is confidentially held and not publicly disseminated—regardless of whether a party establishes substantial competitive harm from disclosure—which would resolve at least five circuit splits; and (2) whether, in the alternative, if the Supreme Court retains the substantial-competitive-harm test, that test is satisfied when the requested information could be potentially useful to a competitor, as the U.S. Courts of Appeals for the 1st and 10th Circuits have held, or whether the party opposing disclosure must establish with near certainty a defined competitive harm like lost market share, as the U.S. Courts of Appeals for the 9th and District of Columbia Circuits have held, and as the U.S. Court of Appeals for the 8th Circuit required here.

Main Argument:
The 8th Circuit erred by using the "narrow construction" canon to artificially constrict the breadth of the FOIA exemption. The Court should not only rule in favor of the petitioner but should use this opportunity to overrule the narrow construction canon as it is applied to FOIA exemptions.

RLC's Position:
The Eighth Circuit's decision improperly interprets the language of Exemption 4 of FOIA by requiring companies that seek to protect confidential information that they have shared with the government to demonstrate that not only is the information confidential but that the company is at risk of substantial competitive harm if the government discloses it. The lower court's extra-statutory interpretation was predicated on the so-called "narrow construction" canon that courts have used to re-write statutes when the plain language does not suit them. The Supreme Court recently rejected the use of the "narrow construction" canon in the context of the Fair Labor Standards Act (see Encino Motorcars); the Court should do so again here. 

Court Outcome:
The court reversed and remanded the decision.


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