Supreme Court Rules Against Government Transparency in Contracts with Private Businesses

Today, the Supreme Court reversed decades of precedent barring private corporations from interfering with the government’s obligations to release information to the public pursuant to the Freedom of Information Act (FOIA). In Food Marketing Institute v. Argus Leader Media, Justice Gorsuch, writing for a 6-3 majority, held that the government could withhold information about government spending through the food stamps program even if there was no showing of any competitive harm to the company. In addition to reordering FOIA to make it far more difficult for the public to learn about the details of government arrangements with private companies, the decision reverses 40 years of precedent by finding that private entities have standing to appeal an order that the government disclose information even where the government itself does not appeal.   

On behalf of Detention Watch Network, Prison Policy Initiative, and the Human Rights Defense Center, the Center for Constitutional Rights, and the Center for Social Justice at Seton Hall Law School, filed an amicus brief in March in the case. Amici argued that private entities did not have independent standing to sue to block releases under FOIA, and that allowing them to do so would severely undermine the power of FOIA to educate the public about government contracting with private corporations. FOIA cases have been a crucial tool for prisoners’ and immigrants’ rights and advocates to obtain information about the increasingly common collaborations between the federal government and private prison contractors.

“This outcome is a major step backward for government transparency under the FOIA,” said Ghita Schwarz, senior staff attorney at the Center for Constitutional Rights. “For 40 years, the court has held private companies have no rights under FOIA to stop the government from releasing information to the public. Unfortunately, we are likely to see many private actors seeking to interfere with access to government information in the future.”

Said Jenny-Brooke Condon, a professor at Seton Hall Law School, and co-counsel with the Center for Constitutional Rights for amici in this case, “The decision will unfortunately make it harder for the public to expose abuses when the government uses private entities and contractors to implement government functions, including in the private prison and detention context. By allowing a corporation to unilaterally appeal a FOIA judgment instead of the government, the Court also wrongly opened the door for more outside interests to stand in the shoes of the government and oppose public interest litigation as if they are the government.”

The ruling has the potential to block information needed to educate the public on some of the most controversial aspects of privatization.

“Private contractors work relentlessly to keep their secrets buried,” said Silky Shah, executive director of Detention Watch Network. “With this ruling we can expect the further obscuring of profiteering schemes and deadly abuses by private prison companies that administer and profit from over 70 percent of the immigration detention system.”

For more information, visit the Center for Constitutional Rights’ case page.