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Thursday, April 4, 2019

MFIA and CRIT Fight for Transparency to Protect Public Health and Safety

On March 25, 2019, the Yale Collaboration for Research Integrity and Transparency (CRIT) and leading nonprofit consumer advocacy groups Public Citizen and the Center for Science in the Public Interest filed a joint amicus brief at the Supreme Court in Food Marketing Institute v. Argus Leader Media, No. 18-481. The brief was prepared with the assistance of students and supervising attorneys in Yale Law School’s Media Freedom and Information Access Clinic (MFIA).

“This is a key case that could upend the ability of reporters, public interest groups, and other FOIA users to obtain important public health and safety information and to watchdog regulatory agencies like the Food and Drug Administration (FDA),” said Christopher Morten, supervising attorney for MFIA.

The brief supports South Dakota’s leading newspaper, the Argus Leader, which seeks to obtain information about food stamp redemption at supermarkets from the U.S. Department of Agriculture’s Supplemental Nutrition Assistance Program (SNAP).

In the brief, CRIT urges the Supreme Court to reject the Food Marketing Institute’s (FMI) effort to reinterpret the Freedom of Information Act (FOIA) to broaden the government’s ability to withhold “commercial or financial information obtained from a person and privileged or confidential” (commonly referred to as “confidential commercial information”) under FOIA Exemption 4. FMI, a food industry trade group, is challenging an Eighth Circuit decision holding that FOIA requires food stamp redemption data generated by SNAP to be disclosed. FMI argues that the Supreme Court should reinterpret the meaning of the term “confidential commercial information” in FOIA Exemption 4 to apply to all commercial information provided to the government that is generally “kept private and not publicly disclosed” and thereby shield the SNAP data from disclosure. 

FMI is asking the Supreme Court to reject decades of precedent construing Exemption 4 more narrowly. For over 40 years, U.S. courts have interpreted Exemption 4 consistent with the D.C. Circuit’s National Parks decision, which construed “confidential commercial information” to exempt from disclosure only information whose release would either (1) cause “substantial harm to the competitive position of the person from whom the information was obtained” or (2) “impair the Government’s ability to obtain necessary information in the future.” FMI asks the Supreme Court to read Exemption 4 more broadly so that virtually any non-public information submitted to an agency by a company could be withheld from FOIA disclosure at the agency’s discretion.

The amicus brief of Public Citizen, CSPI, and CRIT explains why the existing National Parks standard properly defines the scope of Exemption 4 in a manner that fulfills FOIA’s objectives.

The brief argues that FMI’s broader interpretation of Exemption 4 could prevent disclosure of a great deal of information vital to the protection of public health and safety that is routinely made available today.

“Public interest groups, journalists, and other investigators have used FOIA to learn about dangerous prescription drugs, unsafe medical devices, and food safety breaches. The release of information under FOIA has prompted policy reform by regulatory agencies like the FDA and the U.S. Department of Agriculture (USDA),” said Jennifer Pinsof, supervising attorney for MFIA. “If the court rules in favor of FMI, an expanded Exemption 4 could severely limit such investigations in the future and prevent journalists and public interest groups from serving as effective regulatory watchdogs.”

Freedom of information lies at the heart of MFIA and CRIT’s ongoing collaboration. Earlier this year, researchers at the Johns Hopkins Bloomberg School of Public Health led by principal investigator Dr. Caleb Alexander published a report in JAMA investigating the FDA’s oversight of a powerful opioid, fentanyl, revealing “years of inaction” on the part of the FDA that may have contributed to the nation’s growing opioid epidemic. That report was based on a multi-year FOIA investigation supported by CRIT and MFIA and formed a key example in the amicus brief.

“Exemption 4 was never intended to provide companies with a free pass to redact any information at their choosing,” said Adam Pan ’19, a member of the MFIA student team. “FMI’s interpretation would subvert the presumption of disclosure that pervades FOIA.”

“Just like the other FOIA exemptions, Exemption 4 can only protect legitimate interests,” said Anna Kaul ’21, also a member of the MFIA student team. “Courts have long recognized that the exemption does not protect the government from disclosure of information that is merely embarrassing to regulatory agencies or the entities they regulate.”

“While this case is only focused on one government agency, the USDA, the Court’s decision will have an impact on how all agencies release information,” said Catherine Martinez ’19. “Under FMI’s proposed definition, there’s a real risk that FDA and drug companies could hide risks of pharmaceuticals from the public.”

In addition to Kaul, Martinez, and Pan, MFIA supervising attorneys David Schulz, Jennifer Pinsof, and Christopher Morten contributed to the brief.

The Media Freedom and Information Access Clinic (MFIA) is a law student clinic at Yale Law School dedicated to increasing government transparency, defending the essential work of news gatherers, and protecting freedom of expression by providing pro bono legal services, pursuing impact litigation, and developing policy initiatives. MFIA is a program of the Abrams Institute for Freedom of Expression at Yale Law School, and is funded by the Abrams Institute for Freedom of Expression, the Stanton Foundation, the John S. and James L. Knight Foundation, and Arnold Ventures.

The Collaboration for Research Integrity and Transparency (CRIT) is an interdisciplinary initiative launched in 2016 at Yale Law School, Yale School of Medicine, and Yale School of Public Health, whose mission is to promote health by improving the integrity and transparency of biomedical and clinical research. Through research, advocacy, and litigation, CRIT is focused on ensuring that the clinical evidence that supports and informs our understanding of the safety and effectiveness of pharmaceuticals, medical devices, and other medical products is accurate, comprehensive, accessible, and reliable. CRIT is funded by the Arnold Ventures and the Oscar M. Ruebhausen Fund at Yale Law School.