Letter from the Editor: FOIA exemption will keep cash payments secret, not more secure
By Dan Flynn on July 7, 2019
Opinion
When they asked American bank robber Willie Sutton why he robbed banks, Sutton’s straightforward reply was: “Because that’s where the money is.”
The answer would mainly be the same if we asked why USDA’s $700 billion food stamp program is so often the target of fraud. The Supplemental Nutrition Assistance Program or SNAP as they now call food stamps is where the money is. Food stamp fraud once involved washing the ink off stamps so might be passed again.
But SNAP runs on Electronic Benefit Transfers or EBT cards, so schemes to take it down usually involve computers. SNAP theft is like original food stamp fraud in that it also involving robbing money from hungry people.
Apologists kiss off food stamp fraud by saying it amounts to “only one percent” of the program’s annual appropriation. Let’s see, one percent of almost three-quarters of one trillion dollars is $ 7 billion a year. Yes, it is where the money is.
The Supreme Court last month made a decision in Food Marketing Institute v. Argus Leader that unfortunately may more significant than we first thought.
“The Food Marketing Institute case reflects a sea change in the application of FOIA to confidential information,” reports the law and news blog Patent Docs. “Previously, even trade secrets (as defined by the traditional definition under the Uniform Trade Secrets Act or Defend Trade Secrets Act) could be subject to disclosure under FOIA if the trade secret owner cannot prove that the disclosure would cause it substantial competitive harm.
“Now, Exemption 4 covers not only traditional trade secrets but also merely confidential business information that has been shared with the government under an expectation of secrecy. Thus, in many cases, information that would have been disclosed under FOIA can now be withheld under Exemption 4.”
We are among those who believe food safety is best served by transparency. Food manufacturing, distribution, and retail sales are business endeavors requiring government food safety oversite.
Lately, we’ve been on a bit of a transparency roll with food safety officials having the courage to reach into the private sector’s space for information that might make the public safer.
We saw USDA’s then undersecretary for Food Safety, Dr. Richard Raymond, turn the Food Safety and Inspection Service on to reporting the names of individual retailers who sold recently recalled meat.
Former FDA Commissioner Scott Gottlieb supported making store data more public. And there have been other state and local examples of more transparency in food safety like Public Health in Seattle going public as soon as it has a foodborne outbreak under investigation.
With FMI v. Argus meaning the end-recipients of taxpayer money are going to be able to keep it secret, the little transparency run we’ve been on is probably over.
And FMI knew what was doing.
“Importantly, this case is bigger than SNAP sales in grocery stores. The Supreme Court’s decision will provide valuable guidance regarding the government’s responsibility to protect private commercial data in the future,” wrote Leslie G. Sarasin, FMI president, and CEO.
In its summary of the case, Patent Docs makes it clear that the Argus Leader was investigating food stamp fraud.
“In the Food Marketing Institute case, a South Dakota newspaper was working on an article on food stamp fraud; to support the article, it submitted an FOIA request to get store-level data for every store in America that accepted Supplemental Nutrition Assistance Program (SNAP) benefits, Patent Docs reported.
“In 2011, the Argus Leader newspaper of Sioux Falls, South Dakota learned of concerns of “retailer trafficking” of SNAP benefits, where retailers exchange SNAP benefits for cash. Under SNAP, program participants usually use electronic benefit cards to buy food from eligible retailers, and the sales information is electronically transferred to a state electronic benefits processor who approves or denies the transaction. The state processor then reports the information to the U.S. Department of Agriculture (which administers the SNAP program for the federal government). The reporter working on the story, therefore, filed an FOIA request with the USDA asking for information including store-level information on SNAP benefits for every store in the United States (about 320,000 stores) over five years,” it continued.
In the FOIA, Exemption 4 allows the government to withhold “trade secrets and commercial and financial information obtained from a person and privileged or confidential.”
In a 6-3 decision, the Supreme Court found the store-level data could be withheld if it were private or secret information that the government had provided some assurance it would remain private.
No showing of competitive harm was required.
And the public? No right to know where their tax dollars are being spent.
So is $7 billion a year going lost to crooks and cronies? Maybe more? Maybe less?
Nobody really knows. Tracking actually known cases, USDA reports close to $600 million being lost as of 2016. And it seems like all 93 U.S. District Attorney offices around the country have people working on food stamp fraud cases, which never seem to stop coming.
Just google “food stamp fraud.”
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