Judge Neil Gorsuch testifies at his confirmation hearing in March 2017 for a seat on the U.S. Supreme Court. Credit: Diego M. Radzinschi/ NLJ

In a win for business advocates, the U.S. Supreme Court on Monday made it easier for the federal government to prevent companies' financial information from being released to the public under the federal Freedom of Information Act.

By a 6-3 vote, the court in Food Marketing Institute v. Argus Leader Media adopted a pro-business interpretation of the word “confidential” in Exemption 4 of the FOIA, which allows the government to withhold from public view “trade secrets and commercial or financial information obtained from a person and privileged or confidential.”

“At least where commercial or financial information is both customarily and actually treated as private by its owner and provided to the government under an assurance of privacy, the information is 'confidential' within the meaning of Exemption 4,” Justice Neil Gorsuch wrote for the majority.

Concurring in part and dissenting in part, Justice Stephen Breyer, joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor, disagreed with the majority's conclusion that Exemption 4 imposes no “harm” requirement.

“After all, the word 'confidential' sometimes refers, at least in the national security context, to information the disclosure of which would cause harm,” wrote Breyer, who said he would remand the case for a determination whether the release of the information at issue would cause genuine harm.

The Argus Leader, a South Dakota newspaper represented by Robert Loeb, a partner at Orrick Herrington & Sutcliffe, cited the FOIA in seeking data from the Agriculture Department on how much money grocery stores received from taxpayers under the federal food stamp program. The Agriculture Department refused to release data from individual stores, invoking Exemption 4 of the FOIA.

The newspaper challenged the department, citing National Parks & Conservation Association v. Morton, a widely used 1974 D.C. Circuit precedent that interpreted “confidential” to mean that disclosure of the information would cause “substantial competitive harm.” The U.S. Court of Appeals for the Eight Circuit ruled in favor of the newspaper last year.

The Food Marketing Institute appealed to the Supreme Court, calling the National Parks precedent “atextual” and asserting that the word “confidential” is unambiguous, pertaining only to “something that is private and not publicly disclosed.”

Baker Botts partner Evan Young argued on behalf of the institute before the high court. In a statement Monday, Young said, “This is a well-written opinion reiterating that the role of federal courts is to apply the law as written.”

In a brief for the U.S. Chamber of Commerce, Arnold & Porter partner John Elwood told the court that the chamber's members have a “keen interest in the proper interpretation of FOIA's Exemption 4,” and that litigating the issue would be “extremely burdensome” for small businesses.

During oral argument in April, several justices seemed to assert their Supreme Court's supremacy over the D.C. Circuit in statutory interpretation.

Justice Ruth Bader Ginsburg asked, “You're saying that the D.C. Circuit decision and then other measures using the same language stops this court from saying what the words of Exemption 4 mean?”

Justice Brett Kavanaugh also said, “Why, if we disagree with National Parks, the D.C. Circuit's decision, should we nonetheless follow it?”

A group of media organizations led by the Reporters Committee for Freedom of the Press filed an amicus brief in the case, urging the justices to adopt the National Parks test, because it “ensures that the public can access agency records to learn the details of how government programs use public dollars.” (Disclosure: Tony Mauro is a senior adviser to the committee.)

Marcia Coyle contributed to this report.

The court's ruling in Food Marketing Institute v. Argus Leader is posted below: