Austin Lawyers Win Big at U.S. Supreme Court
n June 24, 2019, a team of lawyers from the Austin office of Baker Botts won a landmark Freedom of Information Act (FOIA) decision in the U.S. Supreme Court. The Baker Botts team included Austin Bar Association members Gavin R. Villareal, Evan A. Young, Thomas R. Phillips, Scott A. Keller, Stephanie F. Cagniart, and Ellen Springer. The 6-3 decision in Food Marketing Institute v. Argus Leader Media will govern all FOIA requests for private parties’ commercial information that the federal government has in its files. FOIA’s Exemption 4 protects from mandatory disclosure “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” Food Marketing addressed what “confidential” means, and overturned more than four decades of precedent that required proof of a likeli-
AUSTINLAWYER | SEPTEMBER 2019
hood of substantial competitive harm for commercial information to qualify as “confidential.” The path to the Supreme Court began in South Dakota. Using FOIA, a local newspaper requested that the U.S. Department of Agriculture release nationwide sales data from retailers that participate in the food-stamp program, now known as the Supplemental Nutrition Assistance Program (SNAP). SNAP funding information is readily available, including at local levels. But USDA had never disclosed sales data at individual retail locations. It rejected the FOIA request under Exemption 4, deeming the sales data as confidential commercial information. But USDA lost at the district court and decided not to appeal. That’s where the Baker Botts team came in. The Food Marketing Institute (FMI), which has many SNAP-participating members, retained Baker Botts to challenge the judgment on appeal.
The Baker Botts team, from left to right: Gavin R. Villareal, Thomas R. Phillips, Evan A. Young, Ellen Springer, and Stephanie F. Cagniart, all members of the Austin Bar.
At the Eighth Circuit, the Baker Botts team argued that releasing the sales data would implicate the longstanding “substantial competitive harm”
standard, which every federal circuit applied in Exemption 4 cases. But it also argued that the standard itself had no basis in the exemption’s text.