The Argus Leader did not ask for much. It just wanted to know where the Supplemental Nutrition Assistance Program or SNAP food stamp spending ended up. That was more than a decade ago when SNAP spending was less than today’s $70 billion.

South Dakota’s largest newspaper has been fighting all that time to get the answer, but that’s not going to happen. In a 6-3 vote, the U.S. Supreme Court ruled that USDA can keep secrets about it’s most costly program.

Under the Freedom of Information Act (FOIA), the Argus Leader demanded USDA provide the Sioux Falls newspaper with the names and addresses of all retail stores that participate in SNAP, along with each store’s annual SNAP redemption data. The food stamps and other services SNAP provides are part of the federal budget appropriations to USDA.

The Supreme Court said USDA “tried to meet the paper halfway” by releasing lists of retailers participating in SNAP, but not the store level SNAP data. USDA cited the fourth exemption from FOIA, which is when trade secrets or financial information obtained from a person is privileged or confidential.

The Argus Leader had some success as the case ran through the lower courts. The debate centered on the concept of “competitive harm.”

Supreme Court Justice Neil Gorsuch wrote the majority opinion for the country’s highest court. He said businesses, not government nor the public, have the power to determine what should be confidential.

At least where commercial or financial information is both customarily and actually treated as private by its owner and provided to the government under an assurance of privacy, the information is “confidential” under the meaning of the FOIA, the Gorsuch wrote.

Stephen Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor were in the minority. Breyer’s dissent said FOIA’s “whole point” is to release information to the public and overcome “skittishness or bureaucratic inertia.”

The Food Marketing Institute (FMI) took over from USDA for the Supreme Court contest. USDA opted not to release SNAP data while the case was before the Supreme Court.

Spokespeople for both The Argus Leader and the Gannett Co., its corporate parent, expressed disappointment over the ruling. Gannett wants Congress to amend FOIA. Cory Myers, the Argus news director, said the majority opinion was “a massive blow to the public’s right to know.” Gannett founded USA Today and owns a number of newspapers, making it the largest U.S. newspaper publisher, as measured by total daily circulation.

More than 320,000 retailers are SNAP participants. The program once used an alternative currency called “food stamps,” but it is entirely automated today using Electronic Benefits Transfer cards, sometimes called EBT cards.

Because SNAP fraud is common, federal agents and U.S. attorneys around the country target it. And these fraud investigations are almost always underway some place around the country.

Currently, for example, are these two examples out of Ohio;

  • The husband and wife team of Michael and Amanda Jo Busch were convicted Friday of a scheme to collect $3.4 million in SNAP funds through fraud over eight years. The couple ran Busch’s Country Corner in the Dayton, OH, area until federal investigators raided it in May 2018. Michael and Amanda Jo Busch each was convicted on 25 federal felonies including conspiracy to steal government funds, submitting false SNAP claims, fraud and wire fraud. They did 2,167 SNAP transactions on average each month, double the rate of similar businesses. Federal agents figure only about 1 in 3 of the transactions were legit.
  • Six of seven people accused of SNAP frauds recently pleaded guilty in the Canton, OH area. The six were associated with Ohio Direct Distributors and are accused of lifting $8.5 million of fraudulent SNAP benefits over a six year period. The food delivery business gave out credit and gift cards to obtain EBT card information from their customers and then made transactions without their knowledge. Kaitlin Koher, 32, the only one who pleaded not guilty, is going to trial.

The Argus Leader was conducting a fraud investigation of its own when its staff initially requested the SNAP data.

While this case was in the courts, the trend for publicly-traded companies has been to disclosure more information about their SNAP benefit transactions and even speculate on how much they might lose if those benefits are cut. Walmart, for example, has reported that it redeems 13 percent to 14 percent of all SNAP benefits. Publicly traded retail chains like Target, Aldi, and Kroger have acknowledged they monitor congressional budget talks.

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