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tv   Key Capitol Hill Hearings  CSPAN  March 8, 2019 12:05pm-1:09pm EST

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half however, businesses raised average hourly pay 3.4% from a year earlier, the largest gain in a decade. the war in the pacific, a cure for measles and the life and legacy of dwight eisenhower. in weektd on american history tv. saturday at 1:00 p.m. eastern, pacific war scholars on world war ii's first major pacific allied offensive, the battle of guadal canal. >> for the american public the canal came to symbolize the first fair test of basically the manhood of the generous that had to fight the wrar. >> at 10:00 p.m. on real america with a outbreak of the rash of mealsless a lack back at the 1964 film on the history of mealsless and development of vazquez sfloon in a few weeks the results are evident. the monkey not vaccinated developed measles. the ones like this this were
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given the vaccine were shown no measles but have developed protective anti-bodies the doctors now any they have kwefld are developed for the first time a vaccine will provide safe protection against measles. >> and sunday night at 8 eastern on the presidency. university of virginia professor and more william hitchcock on the age of eisenhower. >> dwight eisenhower was the most popular man, most respected man, most admired man of the period. '45-'61. he served as president and garnered massive approval from the public having one won two elections miss his average approval rating lehman while president for eight years was 65%. average. and the next president who comes closest to that was bill clinton at 55%. and that ronald reagan at 53. they're way in the rear view mirror. >> watch american history tv this weekend on c-span3.
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and while we wait for the freedom of information day conference to resume, we'll show you this morning's discussion on how the press uses freedom of information requests inside and outside the u.s. >> roberto, you're not a resident of the washington, d.c. >> no. >> can you describe a little bit about why you're here. >> i was here 25 years ago. >> you were. >> yeah. >> but this is not your day job. so what brings you to washington? >> well, i had prepared a text if you don't mind. >> absolutely. >> so i would like to appreciate your ininvitation and to freedom information in this beautiful place. and part of a mission from yapa washington to promote a better understanding to the
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crisis on the press in nicaragua, especially. after six months of pgts dmopgtss in the streets with dozens of people. most of them students, at that time more than 300 of them had been killed. including a news reporter. in inaugural, we met several kinds of leaders from the catholic church, civil society, private sector and of course. they faced personal attacks. media outlets set on fire by par military squads with the workers inside. despite all odds, some newspapers like la prin and were struggling against censorship and harassment. in last october in the annual congress in argentina our.
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our the the president of the i have brave and free press. inaugural. two months later miguel and others who worked at the paper were imprisoned i by nicaragua with no official charges and offices were taken by the government of the president or tega. the president of the paper went into exile. they are working from clandestine places. he is worried about what's going on in inaugural? not exactly. are the main media outlets covering this drama? not much. in the last arththree days work with interamerican dialogue. media and scholars and even the american government in order to
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share our vision and asking for help. now we are leaving washington with a moderate hope that if things may change for good in the next few months in nicaragua. before i finish, let me say a few words on the freedom of information. in 2001 after 72 years with the same party in mexican government, the new president started to talk about real changes. several mexico city newspapers and some of the few academic experts in open government decided to establish a task force. "the new york times" corresponded with them. a complete access to federal. at that time the foia was a permanent inspiration for those of us who work this this
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project. the new laws were passed by the mexican congress in 2002. some years later, there was a constitutional amendment and then several other changes always for good. many see political parties and public universities, the congress itself, the supreme court and local authorities are now subjected to access public publications. in the next few years the mexican access law will be used for several countries in latin america and foia has dopted changes through the many years. and that it faces many challenges right now. while we in lant america are sure you do the right thing to protect freedom cht the citizens. please don't ever forget gnat world is always watching you. good or bad the american democracy has been for century
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and it will be a beacon of light for millions of people. we trust you. thank you very much. >> so given that hope and that message of optimism, i think the question i have for you is, given the history of mexico adopting a freedom of information law relatively recently, and also some of the work that you are doing and the situation in nicaragua -- does the political situation here where we have a president who is attacking the press and concerns about transparency and accountability in the u.s., and see translating around the globe? what kind of effect might that have in mexico or nicaragua. >> you mean access to information. >> yeah, yeah, are we playing the fluinfluential role we nifr
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we have over the past couple decades and century. >> i basically can talk about latin america my point of view is the op set. the access of law is facing many problems because of the political conflict, polarization because of that the access of information is maybe the first victim because politics of several parties assume that giving information provoke weakness in them. so i think many countries where the access of information were advancing, are now facing pennsylvania stag nags basically. >> and and see -- do you think that they're looking to the u.s. to, to -- i guess is the stagnation part of what the u.s. experience. >> no, because political crisis in this countries.
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>> okay. okay. >> maybe we'll come back to that. >> okay. >> i want to shift now to all the way to the other end, to tom, you've been working on the supreme court case. i wonder if you can walk us through a little bit the history of this. i mean, as you and i were noting, the government is not even a party to this litigation. and it's unusual when there is a freedom of information act issue here. so welcome. and i wonder if you can give us a bit of background and then we can go from there. >> sure. thank you. let me start with a little tiny bit of a primer of foia exemption 4, the exemption at issue in this case which i suspect some of you know everything about and some of you maybe know a bit less about. and then the history of this litigation, and then does it matter? why does it matter? is it important? we think it is. and then also a couple of odd things about in case. the case has some sort of
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peculiarities which are important not only because they are interesting but may also have an effect on how the skort ultimate lip disposes of the matter. let's go back to the basics of foia exemption 4. as you know foia imposes a general obligation on the government to disclose government records. it has nine exemptions. the fourth one is the one at issue in the supreme court case, exemption 4. and it permits the government to withhold information pertaining to trade secrets or confidential or commercial or financial information. trade secrets and confidential, commercial or financial information. in that box the government request withhold information. and the back drop or b. 4 for in this exemption pertains to information that private parties outside the government submit to the government. as you know, that happens in all kinds of contexts. imagine, for example, a military procurement if the air force
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wants people to build a new fighter jet. companies make submissions to bid on the project and submit huge amounts of information about the jets, the wings look like houfrp gas it uses, how the engine works. and that will include quite possibly all kinds of proprietary information that gives the company an economic edge over the competitors and shouldn't be disclosed. likewise, a drug company seeking fda approval for a drug will submit all kinds of information to the fda about the medication, chemical properties, combination of things in the pill if it's a bill. and some of that will be protected, proprietary information belonging to the company that we would all agree, shouldn't be disclosed. but that will be in a much larger universe -- universe of information that the entity submits to the government. so that's kind of the world of before. now in 1974 the d.c. circuit,
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the u.s. court of appeals for the d.c. circuit, which is just a few hundred feet that way, in a case called national parks sort of set the legal landscape for this and said that the word confidential as in confidential commercial or financial information and in exemption 4 refers to information which if disclosed would be likely to have a substantial -- inflict substantial competitive harm on the private party submitters. so basically that exemption 4 to withhold under exemption 4 the government needs to make a showing of harm and what kind of harm? is it competitive harm? since the d.c. circuit decided that case every other u.s. court of appeals has come onboard and has more or less agreed with that understanding of exemption 4, basically a withholding requires a showing of harm and competitive harm. that's kind of the legal landscape. since then in fact exemption 4
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of foia has also been put into all kinds of -- dozens and dozens of other statutes across the u.s. code that refer to agency specific disclosure regimes can governing certain particular kinds of information. that's the background on before. in our case, the argos south dakota largest circumstances newspaper filed a foia request with usda, the us department of agricultural for snap, the formerly known as the food stamp program. in particular was the paper wanted was store by store called redemption data store by store data on stores participate in the food stamp program that showed effectively, say on a yearly basis, how much -- what amount of food purchases were being subsidized by you and me by the u.s. taxpayers under the food stamp program at that
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store. there is reasons you might want to know, including -- this is a billion-dollar program so there is always the possibility of fraud. and you can look at store by store patterns on how much food stamp usage there is at each store and derive information from that, including the possibility of fraud as li at particular locations. that's why the argos leader wanted attentive the information. the government refused to dflg the information. they used exemption 4 and 3 which gives the right to withhold where there is a separate statute that provides for protection of the information. there were two go andreas in the court. the district court first time they ruled in favor of the government under section 3 backup saying there was a separate statute which we will come back to in a minute giving the government the right to withhold the information. the court of appeals of 8th circuit reversed that it went
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back to the district court which proceeded under exemption 4. and the court actually held a trial. the witnesses testified there were grocery store chain executives and ph.d. economists who testified about the nature of competition in the retail food store industry. competitive -- it's very competitive very thin margin but the upshot was the district court found on all testimony that disclosure of this store by store data in addition to huge amounts of information that are already available to the public wouldn't cause any kpet of disadvantage to anyone and any assertion of that harm was basically speculative so the district court said there was no right to withhold under exemption 4 and the eighth circuit affirmed. that case is now in the u.s. supreme court. briefing is ongoing. argument is set for april 22. and the question before the supreme court is the substantive standard under exemption 4. basically harkening back to national parks, to withhold
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under exemption 4, does the government need to make a showing of harm? and is it a showing of kpet of harm? what does the government have to show to withhold under exemption 4? does that matter? why should we care? is it important? yeah i think it's important. let me explain why. and it goes back to what i started with. the government has huge, huge amounts of information that in the course of doing what it does it receives from people, private parties and the private sector. and basically what's at issue in this case is the extent to which the government will have an ability to withhold all parts of that information and what the onus will be on the government to withhold. that involves as in this case can involve government spending data, which we see as the heartland of what foia was supposed to require the disclosure of. here the s.n.a.p. data requested is basically government spending
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data. what you and i pay under the food stamp programs so that qualifying families can receive food assistance. and seems to us that's something the public has a right to know, what the government is spending at particular locations and the disclosure of that information, doesn't really cause any harm. the other reasons why this is really important, here the supreme court if it addresses the case -- and i'll talk about my if in a second -- it will be talking about one foia exemption. foia exemption 4. but there are many other kperpgss which are important. one of the things this case might reveal is the approach of the newly stuted skort with two new justices justice gorsuch and kavanaugh, what will the general approach be to interpreting foia exemptions? the supreme court in the past has said that exemptions are to be construed narrowly because the dominant theme of foia is one of disclosure. so will the vourt reiterate that
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in will it not? will it say the opposite? i think that's important. and a on a more sort of mete level, the way the case has been framed as it has gone up is that it presents a sort of theory, statutory interpretation which you know with about, textualism, and the attack on national parks and the attack on the prevailing standard here is presented as a textualist sort of attack op how the courts have been interpreting exemption 4. if you say that the government's right to withhold depends on a showing of harm, the likelihood of harm, showing the competitive harm with the people attacking that standard here are saying is where are the words in the foia? those words are not in the foia. that verbal formulation is in not in foia in exemption 4. they say the kworts are making it up. that's an atextual interpretation. we say that doesn't make sense,
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the foia says what it says appear tough construe and give the meaning using all the normal tools. we do that, dictionaries, legislative history, the purposes of the foia, the context of other words in the foia. so this is sort of ma -- brought as almost a philosophical thing about how one interprets statutes. so that's the case that's before the skort. briefing is ongoing. oral argument, parp 22. decision expected by june. let me just quickly add -- and rick touched on this. there are odd things about the case and they matter because it could affect how the court disposes of the case. first and foremost, all of the u.s. courts of appeals are basically an overriding agreement -- they are in agreement about the standard under exemption 4. those of you familiar with how the supreme court takes cases generally speaking the sort of grist for the supreme court mill, the fodder for the supreme court is cases where the u.s.
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courts of appeals have disagreed about something. so some circuits say xp others say y. and it's the supreme court's job to resolve that conflict and give the answer. here there is no reason for the sfrourt to do that. courts of appeals are in agreement. a little odd for the supreme court to have granted the cert to take the case. one can. say the textualism is the ren for the taking of the case. and it's something that the some of the justices are receptive to. another odd thipgts about the case which rick mentioned is this is a foia case and the government is not a party. knows of you understanding foia it's always like smith versus the department of commerce or jones versus the department of agricultural or here argos leader but in my run through of
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the case i left something out. i didn't want to complicate it. but the second appeal to the eighth circuit from the district court decision holding b 4 did not apply. the government did not appeal. they said, fair fight and we lost end of story. but at that point a private party, the food marketing institute. fmi, a trade group for a food grocery stores, was allowed over our client's objection to intervene in the case for the purpose of stepping into the government's shoes and appealing for the eighth circuit. which is a, unusual and b, we think wrong. that shouldn't allowed to happen. but even though fmi lost the appeal to eighth circuit by interveeng it gained party status. it had the right to seek supreme court review and sought it. and over our arguments to the contrary got supreme court review. this is a foia case now in the supreme court where the united states government is not a party. so that's unusual. the government, the slolicitor
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general filed aims. the government is a amicus. i think what the government says is also a bit change. the other odd thing and then i'll stop. about two months ago while the cer stchlt petition was pending congress amended one of the underlying statutes. some people here probably know more about the nuts and bolts of what was going on there. >> we'll get to that, yes. >> but certainly part of it was an effort in some quarters to try to moot the case or moot this issue. but in any event, congress amended one of the underlying statutes in a way that i think is extremely unclear and cryptic. and fmi doesn't make use of it in the supreme court case. but the fact that there is a new underlying statute in the department of agriculturals statutes could have have an effect on if or how the supreme court addresses the issue pending before it. anyway, that's my quick walk through. i hope that was understandable.
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happy later to take questions. >> this is incredibly helpful. i want to pick up where you left off. you set up this is a unusual case for naufrm reasons. i was looking at the docket. the alliance of marine ma'am parks and akwarms. national association of convenience store, chamber of commerce, all filing amicus briefs in this. and so i want to turn to krista a little bit and in full disclosure you and i have talked a lot over a number of years over the proposed exemptions statutory exemptions to foia. how -- given what tom has walked us through, how usual is this? ? the typical scenario for addressing these issues in your experience. >> i don't know that any of them are usual but it's certainly not unusual that we see proposed statutory exemptions come through in big bills like the farm bill or the defense authorization act and intelligence authorization act. the agent -- it's usually an
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agency. in this case it was -- you know a private entity pushing for it. but it usually it coming through the agency proposing it to the committee of jurisdiction for the bill. and then it's only up to the oversight committee or in the senate the judiciary committee who have jurisdiction over foia to insert ourselves. in this case on, you know -- i found a bit of irony in that some of the members who were supporting the foia exemption were the same members who use inaccurate data to fight against s.n.a.p. funding. but yet they fought against the disclosure of data that would help identify fraud. there was a bit of irony there. but it was -- you know, it did come to our attention when these efforts were being pushed through. and unfortunately at that time now chairman cummings was the ranking member. and we didn't have the majority to be able to -- we certainly
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registered our opposition but we didn't have the ability to stop the bill. and so that's -- that can be frustrating from the perch of the minority. and it's really i think an institutional issue for the oversight committee that we should on a bipartisan basis be pushing back against these exemptions whenever we can. and at least there are occasions where ner truly necessary. but it's up to the -- you know, the agency or the entity pushing for it to prove the case and for us to work with them to make it as absolutely narrow as possible to address the true concern rather than what we usually see which is a very broad overreach that would end up allowing for secrecy of a whole lot of information. >> and so just to be clear, in the house version of the farm bill, the house and senate usually pass different versions. and then the house version that passed on the floor there was an exemption for the particular
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information. and that would mooted out the case. -- do you think that's accurate, tom. >> quite possibly for knows in the weeds of foia. >> yeah. >> one of the bills proposed but not enacted was a b 3 stat that would have covered in information with exemption three. it was proposed but not enaccurate aed the thing enact the was in my view anyway must less clear, cryptic and certainly not ha b 3 statute. >> did anybody from the food marketing institute -- were they working the congressional side? i mean you're nodding your head. >> they were, yeah i mean they came in and lobbied us. yes when we raised the opposition with, you know the committees that were considering the bill, then the -- it came to the attention of the food marketing institute. and they came in and lobbied us. but we were uncompelled. >> and were you surprised that the supreme court took the case? i mean tom, you walked
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through -- through this a little bit. but krista were you surprised? i mean some of us when we look at it we thought it was that the- they were going through the core process in order to get -- to buy time for congress to act. and so when the supreme court took the case -- we said well probably not what's happening. >> yes, i definitely was surprised, yeah. and it's definitely concerning for all the reasons he has already laid out. >> and so i'm going to ask this in an obnoxious which but is there chance the argos leader will be victorious on this? if you looked at all the unusual data points about the circuits not providing an issue for the court, you've got at two new supreme court justices who may or may not be more business friendly, sort of the question is why did they take it? are you -- are you concerned about the limits on the exemption 4? >> i mean there is reason for concern. but i would not say there is
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reason for panic. as you know, again those in the know, it takes -- there are nine supreme court justices for them to take a case requires the vote of only four. so you don't want to read too much into it. also, you know, justice ginsberg for example when she was just judge ginsberg down the street, she opined on these specific issues, if not in national parks then in a subsequent case called critical mass. and we know where she stands on the issue, we think, which she probably has a more favorable view of all of this as did the other liberal justices. i don't have a crystal balm and don't want to predict. but there is reason to believe that some of the justices view things one way and some the other. who knows, it could end up being a close decision, you know, 5-4, something like that. so it's hard to predict. but, yeah, there is reason for concern. >> and i think if one thing is
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clear, is that you know, foia spells out nine exemptions and congress weighs in periodically. but this is not a statute somebody sitting in ray agency can look at a request and just apply exemptions and deliver the material. i mean there is a lot of controversy and pushback and continued -- you continue to need to push and promote the disclosure guardian. i know, krista you have been involved in that, even in the last couple of days you've been active -- actively providing oversight. maybe you want to describe a little bit about that. you focused on one agency in particular. >> yes, so this week chairman cummings sent a letter along with senators leahy grassley and cornyn to the department of the interior on a rule that interior's proposed on procedures around responding -- receiving and responding to foia requests. and the members were very concerned about the proposed rule, because it would shift the
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burden pretty heavily toward the requester rather than the agency, it would require requesters to specifically identify the office, you know, the exact thing -- place in the agency where a record resides. and that's really not the way it's supposed to be, right? the requester has to reasonably describe what it is the information they are looking for but it's up to the agency to know their own business and know where -- where information resides and where they can find it. and there are other, you know, just very vague changes to interior's foia rule that would really invite the members believe you know politicization, or you know, just an inconsistent application spp so for example something as simple as changing the word -- the phrase time limit to time frame. what does that mean without an explanation? there is a -- would be a new
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statement that requesters can only submit, you know, a certain number of requests per month but there is not a specific -- you know, identified amount. that just up to the agency to decide they don't like a particular requester? and would that change based on who is in power? you know, so it's just inviting this inconsistent and unfair interpretation. and so the members asked interior to go back and redo the rule making. we have seen since the 2016 amendments which was a bipartisan law meant to make it easier for requesters to obtain information, we have seen agencies really dragging their feet in implementing new rules to, you know, clarify and put into their rules the new 2016 requirements. and so it's -- it's good that interior is looking at updating their rule. but they need to do it in a way that's consistent with the law. >> and so what i hear is maybe
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they should take a look at what the 2016 foia amendments actually say. >> that would be helpful. that would be a great start. yes, actually look at the statute, that, you know with is giving the authority to issue the rule. >> and just so i'm clear, there are hard deadlines under foia, right, for agencies to respond. >> yes. >> these aren't suggested, if you can get back to us within a certain amount of time you can perhaps comply with the law. >> right. >> these are clear declines. >> and agencies should not use the rule making authority to subvert what's in the statute. >> well said. and -- is this a typical -- do you see this a lot? i mean where agencies come out and say we're going to tell people we're not going to have time limits? or is this an the outliar. >> i think this one seems particularly egregious which you can see by the volume of comments that came in from the open government community and others. i mean, there is a pretty -- i
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don't remember the last number i saw. but it's a fairly high number of comments for a foia rule, which is usually not the most, you know, exciting, you know, activity from an agency. but in this case there have been a lot of comments which i think shows that it's particularly bad. but we have seen other examples. the nih basically exempted themselves from the federal advisory committee act through rule making, which was a pretty amazing activity. we do sometimes see agencies use rule makings to try to get around a statute. and that's -- you know in that case it's up to congress a lot of times to conduct the oversight to push back on agencies. >> i know we only have you a couple of minutes i have two quick questions for you. and we can open it up to questions. why the name change for the committee? it was house oversight and government reform which was so beautiful? why change the name?
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>> so not reviewed hogr as beautiful. >> but the. committee will look at obviously reforming the executive branch, which is a core function of the committee. but the name change reflects the oversight jurisdiction of the committee which under house rules, the oversight committee is the primary investigative body in the house. under house rules the committee has the authority to investigate any matter at any time. and what the natural result that should lead from investigations is proposals for reform. thaeps what the name reflects is that our overstiegt should lead to proposals for reform. whatever the thing is we're veg investigating. >> and the other question -- we talked about in ahead of time, just in complete candor, is i -- we talked in sort of very particularly about these important issues that are going on at foia today. but more brewedly regarding transparency and accountability.
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next week is sunshine week. and so maybe we'll see reports about this and hear about this in the next panel and there are other events. but how confident are you -- this is for anybody who wants to address this -- how confident are you that the institutions today that promote accountability or transparency will -- will be able to rise to the moment with regard to a lot of the questions that we have about what's gone on with the election, and the role of, you know, political leaders in that, and what's happened? how confident are you that our -- is this an existential crisis? or what's your take on it. >> >> we have seen a very disturbing rise in the amount of secrecy in -- in particular the executive branch. but i think what we are certainly hopeful on the oversight committee, we are hopeful that the return of oversight and congress exercising its constitutional
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responsibility to be a check on the executive branch, that we will see, you know a restoration of democracy. you know, this morning the house is voting on hr 1, the for the people act, which that's the whole core point of hr 1 is to restore democracy and bring accountability and transparency. something -- just one discreet example is under this administration they stopped disclosing ethics waivers. waivers issued under the president's own executive order on ethics. it was only when the office of government ethics, which is a watchdog right for the executive branch pushed then the white house disclosed some. but we have seen a sort of halt in the disclosure of those. and even when they are throesed they don't have dates on them. so we can't -- we don't know whether an official was actually abiding by it at a certain point where they held a meeting or interacted with a former employer or client.
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so that's one thing hr 1 would address is requiring waivers and recusals to be transparent. i think that we need that restoration of the balance of powers to try to serve as a check. certainly it would be great if we weren't seeing the abuses. but because they're there then it's inherent -- or important that congress, you know, flou exercise the oversight that's been missing in the last few years to expose those abuses. >> and i know that you have to leave because congress is voting very soon. >> right. >> so we want to thank you for your time and your comments and thoughts here today. and then we'll -- we'll -- i know you have to leave and that's fine. >> okay. thank you. >> thank krista. [ applause ] >> but i do want to continue. roberto we have about 20 minutes maybe 15, 20 minutes left. roberto what's wrote your perception? do you think that people outside the united states particularly
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in latin america view the u.s. differently? i mean are we going to be part of the solution to this stagnation you talked about with freedoms and transparency. >> with the matter of foia. >> i like your expression existential crisis in this issue in latin america. in latin america, but let me say that in mexico basically it's a little better. we have on a special institution autonomous institution in mexico which supports your inquiries from information. if -- and governmental, if they deny information you can appeal to this special institution and they make a kind of sentence which can oblige this agency to deliver information. >> they have the power to require an agency. >> to disclose. >> we don't have that in the
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u.s. >> the the review by the supreme court for example, an agency it's very useful for this situations. i don't know, maybe two dozen per month are supported by the institutions. it's quite interesting. >> really. >> and i feel comfortable with the institution right now. but in the rest of latin america and even in mexico, the political polarization we are facing are provoking some controversy about in issue. for example, the new president in mexico lopez obrador is criticizing all this autonomous institutions especially this institution related with access of political information. i don't know whether it's going to happen, but we are concerned about this. >> i think it's interesting that
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you -- your om budsman in under the freedom of information act in mexico has the ability to require disclosure. we have om budsman office but they don't have the same authority. so maybe we have something to learn. >> yes. >> tom, i know you have a client. i don't want you to -- i'm not asking you to opine on matters generally but i would say if before we open it up to questions about robert mueller wants to take part in sunshine week by releasing a report that would be welcome. with that i don't know if we have mikes we can -- there is a microphone set up there. if you can -- if -- if you wouldn't mind standing up for the audience outside the room and coming to the microphone and maybe introduce yourself. identify yourself and ask a brief yes. >> i'm herb bloom and i'm a
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retired broadcast executive with nbc. i'm -- mr. bondy what seems to strike me most startling unless i misunderstood is that this one newspaper in the state is -- is funding this entire process. from their side. am i right? >> i'm not sure what you mean by funding the entire process. >> well the legal. >> they were the foia request they'reter pursuing. >> now you're in the district court. europe in the appellate court. >> yes. >> you go to the supreme court. i say that because my experience at nbc was that when -- when issues came up that required the intervention of the legal department, i mean it was a tough sled, because -- because of what was anticipated in terms of costs. or my question is have other institutions joined with the newspaper to help them? >> i mean, i don't want to say
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anything about. >> okay. >> funding of litigation. that won be appropriate. but i mean in terms of joining, rick mentioned amicus briefs. our brief is not due yet. and then amicus briefs in support of our side will be due after that. we anticipate getting fairly robust amicus support on our side too in terms of groups and coalitions of groups. >> but that doesn't -- i'm not asking but that doesn't -- >> i'm not. >> at liberty to talk. >> i'm not really going to answer the question that you're asking i'm sorry. >> i understand. >> and i don't know -- this is a plug for a reporters meeting and i don't know the specific answer about how the funding is working in this particular case. i do know to it argos leader has been very committed to transparency in these kinds of issues. i'm not surprised that they are the ones that are pushing -- i mean this is a 7-year slog. it's incredible which goes to your question. but there are organizations like mine that provide legal services to journalists so that if they
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can't afford the litigation and can bring the case to us we have a team much very skilled attorneys who some may be in the room -- we can find them and point them out later if you have a case you want to bring. who do provide that kind of the support. what we find is there is a hunl need appear growing need to provide that legal support and assistance. >> i will say our law firm and many others too we view issues like this as really important. and you know fighting the government on some of in foia stuff for us that's an important thing for us to do. and so -- >> and a number of firms will provide pro bono assistance in knows kinds of cases. i don't know the answer here. i don't know if that's happening. but -- but that is true. >> thank you very much. >> thank you very much. >> thank you for the question. >> tandr a rush i represent the national newspaper association. my question for tom. we became heavily involved in
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the farm bill lobbying. lobbying on the other side from fmi as the proposed exemption came up late in the session. and one of the questions that we kept getting on capitol hill is why does fmi care so much about this? it was unusual. it's a bit expensive for them too i'm sure. you may not wish to characterize their motivation before you go into argument. but one of the questions kind of was, one of the retailers maybe isn't eager to see headlines that say we have a million dollars in food stamp revenues while the employees are using food stamps. that question came up. the other question that came up which i thought was another unusual part about in case is that b 4 presidents amendments usually are about information companies develop themselves with their own resources from
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their own formulas and marketing strategies and whatever. and in isn't really their information. it's transmitted as i understand it, it, when the s.n.a.p. beneficiaries swipe their card and it goes through a third party and the companies don't really touch it. is it conceivable to you that the court may decide that it gets put outside the exception. >> two great questions, thank you. your first one i can honestly say i have no idea what the motivations are there. i just don't know. i can't speculate because i just have nothing to say about that. your second question is a great question. and, yes, absolutely. and certainly we view the case that this is a foia request for government spending information. and of course this information
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should be disclosed. that's really what foia is all about. including for the exact reason you said and you put it perfectly. this isn't someone who's trying to hide disclosure of some invention that they have or some information that they want to protect from competitors. this is how much the u.s. taxpayers have spent at particular stores to subsidize food purchases. and we think the courts were right, it would have no adverse competitive affect on anyone. but even on a higher level, as you say, this is not the kind of thing that before was meant to protect. this is u.s. government spending information. it's really information generated by a government process as part of a government program involving government funds. i couldn't agree more with your second point. >> thank you.
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>> can you clarify for me -- and then we'll get to your question -- so if let's just say an online retailer was shown to have a lot of their employees dependent on the s.n.a.p. -- their workforce dependent on the s.n.a.p. program and there was political pressure to change that and raise wages let's say from bernie sanders introducing legislation and that online retailer says we're going to make sure we have a good floor for our employees and then it turns out that that reporting came from a reporter who was able to get some of this data state by state to make that analysis, is that what we're talking about when we're talking about competitive harm or is that -- that's actually what happened with this data. but is that the kind of competitive harm that a -- the chamber of commerce might raise. >> yeah. i think the big argument is that the invocation of exception four
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by the government shouldn't turn on a showing of harm -- it should be, for example, there are at least two other possible answers both of which we think are wrong to the question. one answer to what exception four would require is just something along the lines of the unilateral expectations of the private submitter of information. so if, for example, one of the things the food retailers say, and i think they're right about that on their own terms, is that over time in the past few decades, they have had an expectation that generally this kind of information would not be made public. and that may well be right. i don't know. we don't think the foia test should turn on their expectations. another possible answer is putting aside expectations, putting aside showings of harm. one answer might be if when the government collects information it gives you an assurance of confidentiality, it tells you i won't disclose. and maybe when the government
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gets the information, it stamps it confidential. boom, boom, boom. that means it's confidential. that's another answer to the case. that's sort of the solicitor general's test in the amicus brief. the first version is really fmi's version. and our version is what every u.s. court of appeals has held which is to invoke of exception four. and we think that's what exception four with express reference to trade secrets was meant to do. and it's not a huge burdensome showing, but it's a showing. >> i think you get the last question. >> wonderful. good morning. i work at the democracy fund. and you're touching on my question a bit. in a lot of conversations about release of public information or disclosing information, a lot of that leads into what we would refer to as vulnerable
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communities. i'm wondering if you can speculate sort of what the supreme court's failure to recognize exception four, if we could expect further litigation after this, sort of what next steps could be specifically i guess when we're talking about vulnerable communities, recipients of s.n.a.p. benefits. >> i guess that's a very interesting question. and thank you. i guess the only way i can try to answer that and it may not be what you're looking for is in the past, all kinds of really important disclosures about terrible government corruption and wrongdoing including in the universe that you're describing have come about as a result of a process that start with someone's foia request. so this really matters. people make foia requests and it leads to disclosures and you learn about bad stuff the government has done, mismanagement of money, fraud
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including the areas you're alluding to. how did that come about? because someone made a foia request. this really matters. the one that comes to mind which maybe you're not thinking of. remember the $640 toilet seat. the navy was -- >> i think some people in the room might have been responsible for that. >> i don't know if it was true or not. but in any event that came about because of a foia request. that's what ultimately led to that kind of disclosure. that's really the best answer that i can give you. >> sure. thank you. >> this is an interesting case. it's obviously not about supplemental nutrition assistance, it's about a whole bunch of other things. we will be watching. but you have to be at the supreme court in order to actually watch. and so after our lunch program, you will hear more about that and so i'm hoping that everybody sticks around through the lunch in order to watch that.
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and get a better understanding of why maybe we won't be watching, unless you stand out at the steps at 4:00 in the morning or you're a member of the supreme court bar. and i hear that's a little expensive. i want to all of you for your expertise and for your opportunity to share a little about what's going on with foia. i don't know that we answered the question, i don't know if you're all panicking or all feel confident now, but i think it's important to look at some of what is -- what are the controversies around foia to set the table for further discussion. >> and back now to the 21st annual national freedom of information day being hosted in washington, d.c. it's bringing together people to talk about open government records throughout the day today. we expect to be hearing shortly from the chair of the house
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oversight committee, elijah cummings and later a discussion about cameras in courtrooms. we're expecting this to start shortly live here on c-span3. d
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>> we're about to resume our program. thank you very much. it will be just a minute or two, thank you. >> as we just heard, a couple more minutes as we hear from the keynote speaker today, the house oversight chair elijah cummings and expecting a discussion about cameras in courtrooms. this is the 21st annual freedom of information day conference being held in washington, d.c. it's bringing together a number of people, government officials, lawyers, librarians and journalists talking about open government records.
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>> good afternoon. thank you for your patience. i hope you enjoyed lunch. i'm the policy director for the freedom of the press. you know, working within government to promote transparency and accountability and especially things like making sure the freedom of information act work as well as it should is difficult work. sometimes the outcomes


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