No. 18-481
IN THE

Supreme Court of the United States
FOOD MARKETING INSTITUTE,
Petitioner,
v.
ARGUS LEADER MEDIA, D/B/A ARGUS LEADER,
Respondent.
On Writ of Certiorari to the United States
Court of Appeals for the Eighth Circuit
REPLY FOR PETITIONER
Thomas R. Phillips
Gavin R. Villareal
Counsel of Record
Evan A. Young
Scott A. Keller
Stephanie F. Cagniart
Ellen Springer
BAKER BOTTS L.L.P.
98 San Jacinto Blvd.
Suite 1500
Austin, TX 78701
(512) 322-2500
gavin.villareal@bakerbotts.com

Counsel for Petitioner Food Marketing Institute

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – W ASHINGTON, D.C. 20002

 TABLE OF CONTENTS
Table of Authorities ............................................................ iii
Introduction .......................................................................... 1
Argument .............................................................................. 3
I. This Case Remains Justiciable .............................. 3
II. “Confidential” Has A Well-Established Plain
Meaning That Does Not Require Showing
Competitive Harm................................................... 7
A. No common-law “term of art” supports
respondent’s proposed competitive-harm
test ..................................................................... 8
B. “Confidential” has an unambiguous plain
meaning that lacks any harm element ......... 12
C. Congress has not ratified National Parks .... 16
D. Giving “confidential” its plain meaning
advances FOIA’s purpose ............................. 18
III. If Any Competitive-Harm Test Survives,
Respondent Presents No Meaningful Objections To FMI’s Proposed Reformation ............... 21
Conclusion ........................................................................... 23

(ii)

 TABLE OF AUTHORITIES
Page(s)
CASES
100Reporters LLC v. U.S. Department of
Justice,
307 F.R.D. 269 (D.D.C. 2014) ........................................ 4
Alexander v. Sandoval,
532 U.S. 275 (2001) ....................................................... 18
Bennett v. Spear,
520 U.S. 154 (1997) ......................................................... 7
Bloomberg, L.P. v. Board of Governors of the
Federal Reserve System,
601 F.3d 143 (2d Cir. 2010) .......................................... 19
Bruesewitz v. Wyeth LLC,
562 U.S. 223 (2011) ......................................................... 8
Campbell-Ewald Co. v. Gomez,
136 S. Ct. 663 (2016) ....................................................... 4
Camreta v. Greene,
563 U.S. 692 (2011) ......................................................... 3
Carpenter v. United States,
484 U.S. 19 (1987) ....................................................12, 14
Carter v. United States,
530 U.S. 255 (2008) ....................................................8, 11
Cause of Action Institute v. CFPB,
No. 16-2434 (D.D.C. Dec. 13, 2016) ............................. 19
Critical Mass Energy Project v. NRC,
975 F.2d 871 (D.C. Cir. 1992) (en banc) ................13, 17
Department of Justice v. Landano,
508 U.S. 165 (1993) ..................................................13, 14
(iii)

 iv
Detention Watch Network v. Corrections
Corporation of America,
No. 16-3141(L), 2017 WL 4122728 (2d
Cir. Feb. 8, 2017) ............................................................ 5
Didrickson v. U.S. Department of the
Interior,
982 F.2d 1332 (9th Cir. 1992) ......................................... 5
Dow Jones & Co., Inc. v. U.S. Department of
Justice,
161 F.R.D. 247 (S.D.N.Y. 1995)..................................... 5
FOMC v. Merrill,
443 U.S. 340 (1979) ..................................................14, 15
Friends of the Earth, Inc. v. Laidlaw
Environmental Services (TOC), Inc.,
528 U.S. 167 (2000) ......................................................... 4
Hall v. Hall,
138 S.Ct. 1118 (2018) ...................................................... 9
Helsinn Healthcare S.A. v. Teva
Pharmaceuticals USA, Inc.,
139 S. Ct. 628 (2019) ..................................................... 16
Henson v. Santander Consumer USA Inc.,
137 S.Ct. 1718 (2017) .................................................... 19
In re Orion Pictures Corp.,
21 F.3d 24 (2d Cir. 1994) .............................................. 15
Jama v. ICE,
543 U.S. 335 (2005) ....................................................... 17
Jones v. Liberty Glass Co.,
332 U.S. 524 (1947) ....................................................... 18
Lorillard v. Pons,
434 U.S. 575 (1978) ....................................................... 16

 v
McBurney v. Young,
569 U.S. 221 (2013) ....................................................... 15
McDonnell Douglas v. U.S. Department of the
Air Force,
375 F.3d 1182 (D.C. Cir. 2004) .................................... 19
Monsanto Co. v. Geertson Seed Farms,
561 U.S. 139 (2010) ......................................................6, 7
NARA v. Favish,
541 U.S. 157 (2004) ..................................................10, 18
National Parks & Conservation
Association v. Morton,
498 F.2d 765 (D.C. Cir. 1974) .............................. passim
New Hampshire Right to Life v. Department of
Health and Human Services,
136 S.Ct. 383 (2015) ...................................................... 22
New Prime Inc. v. Oliveira,
139 S.Ct. 532 (2019) ........................................................ 9
Nixon v. Warner Communications, Inc.,
435 U.S. 589 (1978) ....................................................... 15
NLRB v. Bildisco & Bildisco,
465 U.S. 513 (1984) ....................................................... 17
SAS Institute, Inc. v. Iancu,
138 S.Ct. 1348 (2018) .................................................... 18
United States v. Wells,
519 U.S. 482 (1997) ....................................................... 11
Washington Post Co. v. U.S. Department of
Health & Human Services,
865 F.2d 320 (D.C. Cir. 1989) ...................................... 20
STATUTES
5 U.S.C. § 552(a)(6) ............................................................. 20

 vi
5 U.S.C. § 552(a)(8) ............................................................. 13
5 U.S.C. § 552(b)(4)..................................................... passim
5 U.S.C. § 552(b)(5)........................................................10, 14
5 U.S.C. § 552(b)(6)............................................................. 10
5 U.S.C. § 702 ........................................................................ 5
7 U.S.C. § 2013(a) ............................................................... 20
7 U.S.C. § 2018(c)...........................................................5, 6, 8
11 U.S.C. § 107 .................................................................... 15
FEDERAL RULES
Federal Rule of Civil Procedure 26 .................................. 15
Federal Rule of Civil Procedure 45 .................................. 15
Federal Rule of Criminal Procedure 17........................... 15
SECONDARY AUTHORITIES
Kwoka, FOIA, Inc.,
65 Duke L. Rev. 1361 (2016) ........................................ 21
Kwoka, The Freedom of Information Act
Trial, 61 Am. U. L. Rev. 217 (2011) ............................ 21
Restatement (First) of Torts (1939) ..............................9, 10
Summary of Annual FOIA Reports for
Fiscal Year 2017 ........................................................... 21
Webster’s New International Dictionary
(2d ed. 1960) .................................................................. 12

 IN THE

Supreme Court of the United States
FOOD MARKETING INSTITUTE,
Petitioner,
v.
ARGUS LEADER MEDIA, D/B/A ARGUS LEADER,
Respondent.
On Writ of Certiorari to the United States
Court of Appeals for the Eighth Circuit
REPLY FOR PETITIONER
INTRODUCTION
Respondent’s brief makes one thing clear: Argus
Leader does not want the Court to proceed. Hence its new
justiciability arguments, predicated entirely on the Government’s brief. But as the Government acknowledges,
FMI’s standing is secure and this case is justiciable. U.S.
Br. 34-35. Mootness (the doctrine that does govern how
later events affect justiciability) poses no obstacle either.
The syllogism remains simple. The judgment below
mandates disclosure of FMI’s members’ information; it
causes that injury. Reversal would undo—redress—that
mandatory disclosure, allowing USDA to withhold the
data. And the Government reiterates that it will continue
to withhold the information at issue unless the Court affirms the judgment below.
Respondent’s hunt for any way to avoid merits resolution reflects its inability to defend the National Parks substantial-competitive-harm test. Nothing in the brief justifies defining “confidential” differently from its ordinary,
(1)

 2
universally understood meaning. And store-level SNAPredemption data is “confidential,” “commercial or financial information”—it entails individual store locations’
sales data reflecting market share.
As to “confidential,” respondent concedes that National Parks’ rationale in creating the substantial-competitive-harm test is wrong, offering no defense of that approach. Instead, respondent invokes a purported common-law “term of art” to justify its proposed competitiveharm test: “trade secrets and other confidential commercial information.” Resp. 29. This “term of art” is illusory.
Any common-law provenance of that “term” went unmentioned in National Parks, Exemption 4 cases before and
after National Parks, scholarly commentary, and FOIA’s
well-trodden legislative history. It does not even appear
in Exemption 4 itself, whose text and structure are markedly different. What respondent has identified instead is
an unremarkable concept—that unfair-competition plaintiffs suing their competitors must (like all tort plaintiffs)
show harm. This truism sheds no light on the definition of
“confidential.” FOIA is not an unfair-competition tort
statute; to the contrary, it allows anyone to obtain information regardless of purpose.
Respondent’s ratification argument likewise fails.
Congress has never reenacted Exemption 4. That other,
later statutes reference or use language like Exemption
4’s cannot retroactively change its meaning when FOIA
was adopted. Moreover, nothing indicates that Congress
embraced National Parks, much less picked a side in the
ensuing Circuit splits. Congress uses Exemption 4’s language to ensure consistent agency disclosure obligations
throughout federal law, regardless of shifting interpretations.
Respondent ends with its most candid argument—that
the consequences of giving Exemption 4 its plain meaning

 3
justify denying Exemption 4 its plain meaning. Congress
used FOIA’s exemptions to strike a balance between disclosure and protection that courts must observe. And
when information is less about what the government does
and more about private conduct, the mandatory-disclosure
theory is at its nadir.
Finally, respondent all but ignores FMI’s second question presented, which the Court need not reach if it restores Exemption 4’s plain meaning. But if a competitiveharm requirement survives, the Court would resolve at
least five Circuit splits by adopting FMI’s proposed standard. That test—drawn from other federal law involving
competitive harm—would ask whether competitive harm
is reasonably possible, regardless of its source, nature, or
immediacy. Respondent offers no reason to repudiate that
proposal—indeed, its main argument in the first question
turned on unfair-competition law.
ARGUMENT
I. THIS CASE REMAINS JUSTICIABLE
Respondent contends that the Government’s brief
eliminates FMI’s standing “for want of redressability.”
Resp. 13. Alternatively, again citing redressability, respondent asserts mootness. Resp. 17. Both contentions
are meritless. As the Government stated, FMI “had Article III standing to appeal” because its injury “would be
redressed if [it] prevailed on appeal.” U.S. Br. 34-35. The
Government’s reaffirmation that it will withhold the data
if the Court reverses forecloses a mootness finding. This
Court’s jurisdiction remains secure.
1. Standing is established at the outset, when “[t]he
party invoking the Court’s authority” satisfies Article
III’s familiar requirements: injury, causation, and redressability. Camreta v. Greene, 563 U.S. 692, 701 (2011).
FMI’s injury—the mandatory disclosure of its members’
information—was actual, imminent, concrete and

 4
particularized.1 The district court’s ruling caused that injury, which reversal would redress by eliminating the only
thing requiring USDA to disclose the information.
Respondent also cannot meet its “formidable burden”
to show that a case “litigated * * * for years” has become
moot. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.
(TOC), Inc., 528 U.S. 167, 190 (2000). To establish mootness, respondent must prove that intervening events make
it “impossible for a court to grant any effectual relief whatever to the prevailing party.” Campbell-Ewald Co. v.
Gomez, 136 S. Ct. 663, 670 (2016) (quotation omitted).
Here, relief is virtually certain, as reversal will lead to continued nondisclosure. U.S. Br. 30-31, 35.
The Government’s long course of conduct further confirms that, absent any order compelling disclosure, USDA
would continue to protect the data. USDA litigated
against respondent for years. After the district court issued its order, the Government alerted retailers to consider “possible judicial intervention.”2 Once FMI intervened, USDA successfully opposed as moot respondent’s
motion to compel disclosure. Dist. Ct. Doc. 148 at 2. It
moved to amend the existing protective order to give FMI
access to sealed portions of the record in prosecuting the
appeal. Dist. Ct. Docs. 154, 155. Formal regulations that
preclude disclosure, dating from 1978, were then and still
1

Respondent describes FMI’s intervention as “improper,” Resp. 16,
but challenged it neither before the Eighth Circuit nor in its BIO; any
complaint is thus forfeited and waived. In any event, “preventing the
disclosure of commercially-sensitive and confidential information [under Exemption 4] is a well-established interest sufficient to justify intervention under Rule 24(a).” 100Reporters LLC v. U.S. Dep’t of Justice, 307 F.R.D. 269, 275 (D.D.C. 2014).
2
SNAP Retailer Data, USDA (Jan. 18, 2017), https://web.archive.
org/web/20170121025513/https://www.fns.usda.gov/snap-retailerdata.

 5
are in effect. See U.S. Br. 27-31.3
2. Respondent’s claim that the case has recently become moot (Resp. 17) rests on a misapprehension. Respondent understands the Government to state that
USDA’s only reason to exercise its discretion to withhold
the data under Exemption 4 is that USDA believes that 7
U.S.C. § 2018(c) requires that result. Resp. 13, 17-23. The
Government said no such thing. After USDA lost on its
§ 2018(c) argument, it litigated its Exemption 4 arguments
without further reference to § 2018(c). See, e.g., Dist. Ct.
Doc. 61 at 19-31 & n.8. The Government has made clear in
this Court, too, that its Exemption 4 arguments—and its
intent to withhold the demanded information—do not turn
on whether the Eighth Circuit’s prior § 2018(c) ruling was
correct. U.S. Br. 30.
The only potential change the Government signaled
was hypothetical—and would not affect this case even if it
3

Respondent (at 16 & n.6) cites Detention Watch Network v. Corrections Corp. of America, No. 16-3141(L), 2017 WL 4122728, at *1 (2d
Cir. Feb. 8, 2017)), which suggests that the appellants lacked standing
because there was insufficient evidence that the Government endorsed their position and would redress their injury. 2017 WL
4122728 at *1. The Government expressly supports FMI’s position.
U.S. Br. 34-35. A “reverse FOIA” action under the APA, see U.S. Br.
33-34, would have required identifying adverse agency action, see 5
U.S.C. § 702, but the Government supported FMI’s position before
the district court, too. FMI met each Article III standing requirement
and was a proper appellant, with or without the Government. See Dow
Jones & Co., Inc. v. U.S. Dep’t of Justice, 161 F.R.D. 247 (S.D.N.Y.
1995) (Sotomayor, J.) (permitting private-party intervenor to proceed
without the Government in FOIA litigation after the agency indicated
its intent not to appeal); Didrickson v. U.S. Dep’t of the Interior, 982
F.2d 1332, 1338 (9th Cir. 1992) (“Generally, an intervenor may appeal
from any order adversely affecting the interests that served as the
basis for intervention, provided that the requirements of Article III
are satisfied.”). In any event, even assuming any flaw in FMI’s intervention, respondent’s failure to challenge it on appeal cures it.

 6
had transpired. In a footnote, the Government stated that
“if Congress had not recently amended § 2018(c) [in December 2018], [USDA] might have explored changing its
position to permit the release of store-level redemption
data collected after such a change.” U.S. Br. 26 n.5 (emphases added). That is, if § 2018(c) had not been amended,
USDA might consider prospectively revising its official
nondisclosure policy, but only for data obtained after any
theoretical regulatory change. Even if all that had happened, it would not affect USDA’s position regarding the
long-since-collected data at issue here.
Respondent’s attempt to use the Government’s brief as
a justiciability “gotcha” is baseless. As the Government
recently told this Court: “Although respondent’s merits
brief invokes the government’s brief to support its position, the government supports petitioner both on the question of Article III jurisdiction in this case and on the application of Exemption 4 to the agency records at issue.”
Mot. for Leave to Participate 2.
3. Firing one last justiciability arrow, respondent
hints that governmental discretion to disclose the data
could block redressability. Resp. 16-17. Article III standing to challenge an order that prevents an agency from exercising its discretion to provide relief to a petitioner, however, is secure when there is evidence the agency would
choose to do so.
In Monsanto Co. v. Geertson Seed Farms, 561 U.S.
139, 147-148 (2010), for example, petitioners challenged an
injunction that prevented an agency from exercising its
discretion to partially deregulate petitioners’ product.
The agency had previously granted this relief to petitioners, and its statements during the litigation indicated it believed doing so was appropriate. There was thus “more
than a strong likelihood that [the agency] would partially
deregulate [petitioner’s product] were it not for the

 7
District Court’s injunction.” Id. at 152; see also, e.g., Bennett v. Spear, 520 U.S. 154, 170-171 (1997) (recognizing
standing to challenge a recommendation that required an
agency to impose water-use restrictions that the agency
had not previously imposed, and concluding that petitioners’ injury would “‘likely’ be redressed” by a favorable ruling). Redress here is far more certain than “likely.”
* * *
Respondent and several amici make clear their desire
that the Court not reach the merits. But no justiciability
barrier prevents the Court from resolving the merits
questions that it granted certiorari to decide.
II. “CONFIDENTIAL” HAS A WELL-ESTABLISHED PLAIN
MEANING THAT DOES NOT REQUIRE SHOWING COMPETITIVE HARM
The Eighth Circuit emphasized that its judgment
turned on its conclusion that disclosure was not “likely to
cause substantial competitive harm.” Pet. App. 5a (original emphasis). Respondent never asserts, let alone defends, that substantiality requirement—it even omits the
word “substantial” when it quotes the actual National
Parks test, Resp. 24 n.10, and champions a new competitive-harm standard instead.4
Indeed, respondent barely mentions National Parks
& Conservation Association v. Morton, 498 F.2d 765 (D.C.
Cir. 1974), at all—despite urging the Court to uphold what
lower courts have done “[f]or over 40 years,” Resp. 24. Respondent also repudiates National Parks’ sole rationale—
legislative history, which respondent excoriates as “notoriously flawed,” “tortured,” and “obfuscating.” Resp. 51.
It instead offers a series of novel tests—each of which is
meritless and turns on simply some competitive-harm
4

The only time the brief links “substantial” with “competitive harm”
is in a footnote parenthetical quotation. Resp. 63 n.29.

 8
showing. Even if the Court agrees with respondent, therefore the most respondent could win is vacatur and remand.5
The Court should instead reverse, because none of respondent’s attempts to rewrite Exemption 4 remotely
overcomes the plain meaning.
A. No common-law “term of art” supports respondent’s proposed competitive-harm test
Respondent begins by urging the Court to disregard
the statute’s plain meaning, arguing that “trade secrets
and other confidential commercial information” was “an
established common-law term of art” when FOIA was enacted. Resp. 29. Conveniently, that “term” encompassed
only information whose disclosure would cause competitive harm. Thus, Congress must have intended a harm requirement in Exemption 4. Ibid.
“The canon on imputing common-law meaning applies
only when Congress makes use of a statutory term with
established meaning at common law.” Carter v. United
States, 530 U.S. 255, 264 (2000) (original emphasis). For
that reason, the canon has no application where “Congress
simply describes [a concept] analogous to a common-law
[principle] without using common-law terms,” id. at 265,
or adopts text that is merely similar to a preexisting term
of art, e.g., Bruesewitz v. Wyeth LLC, 562 U.S. 223, 234235 (2011). Congress did not even use respondent’s
term—“trade secrets and other confidential commercial
information”—in Exemption 4. The actual text is “trade
secrets and commercial or financial information obtained
from a person and privileged or confidential,” 5 U.S.C.
§ 552(b)(4) (emphasis added); see Bruesewitz, 562 U.S. at
5

And as the Government observes, even if Exemption 4 does not apply, the Court should still vacate and remand for consideration of
§ 2018(c)’s recent amendment. U.S. Br. 35 n.7.

 9
236 (“linking independent ideas is the job of a coordinating
junction like ‘and’”). The omission of the supposed “term”
alone defeats any claim that Congress intended to adopt
that term’s alleged meaning.6
Respondent’s term of art is also a fiction. Respondent
identifies no legal dictionary including the phrase “trade
secrets and other confidential commercial information,” or
the shorter “confidential commercial information” variant
that respondent sometimes uses—and “surely that’s a
first hint the phrase wasn’t then a term of art bearing
some specialized meaning.” New Prime Inc. v. Oliveira,
139 S. Ct. 532, 539-540 (2019). Respondent (at 30-31) cites
§§ 757 and 759 of the contemporaneous Restatement
(First) of Torts (1939)—which do not use the phrase. Even
a Westlaw search of state and federal cases for “confidential commercial information” before 1966 yields zero results. Cf. Hall v. Hall, 138 S. Ct. 1118, 1125 (2018) (applying the common-law meaning of a term “with a legal lineage stretching back at least to * * * 1813”).
Respondent identifies several cases mentioning trade
secrets and business or commercial information in the
same sentence. Resp. 31 n.15. But that is all that these
cases do. None uses respondent’s term of art, defines
“confidential,” or claims that there was a common-law understanding that information is “confidential” only if its
disclosure would cause competitive harm.
In contrast, the sources above do use the word “confidential”—and do so consistent with its ordinary meaning
and without any requirement of competitive harm (“substantial” or otherwise). See FMI Br. 18-22 & n.11
6

Exemption 4 also protects the information as “financial” information. E.g., Pet. App. 15a. Respondent never claims that the common law protected financial information only if disclosure would
cause competitive harm. So even if respondent’s stated argument had
merit, it could not prevail.

 10
(dictionaries, cases, and other examples establishing that
“confidential” means secret and not publicly disseminated); Restatement (First) of Torts § 757 cmts. a, b, h, &
j (1939) (using “confidential” and “secret” interchangeably, and the phrases “person to whom the secret was entrusted in confidence,” “abuse of confidence,” and “breach
of confidence”). Congress’s use of a word with a well-established plain meaning—and its failure to use or define
any contrary term of art—resolves this case.
Finally, even aside from the missing “term of art,” no
evidence suggests that Congress—sub silentio—incorporated into Exemption 4 only the particular unfair-competition cause of action upon which respondent relies. Respondent claims that when FOIA was enacted, a business
could bring an unfair-competition claim against a competitor that had improperly obtained its information and
thereby harmed it. Resp. 30-31. Surely true, but Exemption 4 does not purport to codify unfair-competition law (or
any other tort). Anyone—not just competitors—may use
FOIA to obtain information in the Government’s possession.
Had Congress intended to incorporate specialized legal rules into Exemption 4, or add a harm requirement,
FOIA would say so. The very next two exemptions show
as much. See 5 U.S.C. § 552(b)(5) (exempting governmental “memorandums or letters that would not be available
by law to a party other than an agency in litigation with
the agency”); 5 U.S.C. § 552(b)(6) (exempting “personnel
and medical files and similar files” whose disclosure
“would constitute a clearly unwarranted invasion of personal privacy”). FOIA’s exemptions are interpreted according to their plain text, and thus not necessarily co-extensive with (even actually well-established) common law.
NARA v. Favish, 541 U.S. 157, 170 (2004) (“We have observed that the statutory privacy right protected by Exemption 7(C) goes beyond the common law and the

 11
Constitution.”).7
Instead, Exemption 4 permits the Government to withhold—without limitation—“commercial or financial information obtained from a person and privileged or confidential.” 5 U.S.C. § 552(b)(4). The fact that other statutes or
common-law actions might impose additional requirements neither dictates what this statute means nor
changes the plain meaning of “confidential.” See United
States v. Wells, 519 U.S. 482, 491-493 (1997) (declining to
hold the phrase “false-statement” in a statute had a specialized common-law meaning that included the concept of
materiality merely because some common-law crimes involving false statements included materiality as an element, and instead interpreting the phrase using its “natural reading”); Carter, 530 U.S. at 264-265 (rejecting the assumption that statutory crimes “similar to the commonlaw crimes of robbery and larceny” implicitly embedded
all “the same elements as their common-law predecessors”).
Respondent’s claim, raised for the first time in this
Court, that Exemption 4 incorporates a term of art and
mimics a particular common-law cause of action is novel.8
Nothing in the statute or the common law supports the argument—nor does respondent cite any legislator, court,
7

Even assuming the narrow-construction doctrine applied, it could
only resolve ambiguity—not supplant a word with a well-established
plain meaning. FMI Br. 32 n.19; Retail Litigation Center Amicus
Br. 5-16.
8 Indeed, asserting that “confidential commercial information” is a
unified term of art is inconsistent with respondent’s prior litigation
position. USDA and respondent “stipulated that the information is
commercial or financial” but disputed whether it was “confidential.”
Pet. App. 15a. The individual words could not be separately analyzed
if they were indivisible parts of a term of art. Respondent, like every
court to apply Exemption 4, well understood previously that “confidential” could and should be assessed distinctly.

 12
or scholar who, over Exemption 4’s fifty-three years, has
noted this supposedly well-established common-law heritage.9 The Court should reject this meritless argument and
uphold the plain text.
B. “Confidential” has an unambiguous plain
meaning that lacks any harm element
Respondent does not dispute that the plain meaning of
“confidential” is “secret and not publicly disclosed.” But it
fixates on a subset of that definition—information that is
“objectively confidential in nature” and whose disclosure
is “likely harmful.” Resp. 43 (original emphasis). Such information, if kept secret, may certainly be “confidential.”
But respondent lacks even one authority for categorically
substituting this subset for the whole.10
Simply put, it is unsurprising that information whose
disclosure would yield any kind of harm (not just competitive) would be treated confidentially, but that hardly establishes that only such information is confidential. Information’s secrecy is what makes it “confidential,” not the
reasons someone keeps that information secret. Cf. Carpenter v. United States, 484 U.S. 19, 26-27 (1987) (affirming insider-trading conviction where disclosure of newspaper’s confidential information caused no “monetary loss,
such as giving the information to a competitor” because
“exclusivity is an important aspect of confidential business
9

Conversely, courts have considered common law to assess the meaning of “privileged” or scope of “trade secrets” (and the common law of
trade secrets was not well-established when FOIA was enacted, Pet.
20-21).
10
The dictionary definitions respondent cites, Resp. 27 n.11, merely
confirm that “confidential” and “confidence” are related terms (“of the
nature of confidence”), or that confidentiality is associated with “intimacy”—a term that means private (generally in reference to deeply
personal information) and requires no showing of harm. E.g., Webster’s New International Dictionary 1301 (2d ed. 1960).

 13
information”).11
Respondent contends that the plain-text interpretation of Exemption 4 makes the standard for “confidential”
unduly subjective, making submitters the final arbiters of
what is confidential. E.g., Resp. 44-45. To the contrary,
parties claiming the exemption must prove, for example, a
custom of keeping the information at issue secret and that
the information was in fact considered and kept secret—
an objective and verifiable standard. See Critical Mass
Energy Project v. NRC, 975 F.2d 871, 879 (D.C. Cir. 1992)
(en banc) (describing “would customarily not be released
to the public” as an “objective” test).12
Respondent’s attempt to turn Department of Justice v.
Landano to its advantage likewise fails. Resp. 43-44.
Landano supports petitioner: it held that “confidential”
warranted its plain meaning in FOIA Exemption 7, which
protects records that could reasonably be expected to
11

Some amici implore the Court to forego consideration of this case
(or embrace the competitive-harm test) because Congress amended
FOIA in 2016 to specify that in future cases agencies “shall withhold
information * * * only if (I) the agency reasonably foresees that disclosure would harm an interest protected by an exemption * * *; or
(II) disclosure is prohibited by law.” 5 U.S.C. § 552(a)(8)(A)(i). That
language says nothing about what Exemption 4 means by “confidential,” and releasing “confidential” information (as this Court defines it
in this case) to someone else is itself the interest that would be
harmed. Only if respondent’s atextual interpretation of the statute
prevails will that interest be limited to “competitive harm.”
12
Respondent likewise attacks the Government’s application of the
plain-text interpretation as giving “even a low-ranking” federal employee unchecked power to bestow confidentiality, when FOIA precludes withholding by fiat. Resp. 60. Exemption 4’s “obtained from a
person” requirement ensures that only non-governmental information (already at the outer fringe of FOIA’s goal of governmental
transparency) can benefit from Exemption 4 at all. The rogue-bureaucrat worry is baseless, too—the assurances here came from
longstanding, officially-promulgated regulations. U.S. Br. 27-31.

 14
disclose the identity of a confidential law-enforcement
source. 508 U.S. 165, 174 (1993). The Court then separately addressed a second issue: when a source can reasonably infer that the Government has promised to keep
the communication confidential. Id. at 172 (identifying the
two issues); id. at 179-180 (analyzing the second issue).
Respondent’s claim that Landano recognized that “confidential” is only an “objective” term of the sort respondent
demands here mistakenly focuses on the analysis of this
second issue. Resp. 43-44 (citing 508 U.S. at 179). This
Court has never injected a harm requirement into the ordinary word “confidential,” in Landano or elsewhere. See
FMI Br. 19 n.11 (gathering cases); Carpenter, 484 U.S. at
26-27.
To bolster its odd interpretation of “confidential,” respondent cites statutes—but those prove that when Congress intends for legislation to apply only to confidential
information that is also “damag[ing]” or “sensitive,” it specifically includes such an element in the statute. See
Resp. 48 (excerpting statutes). Respondent’s examples
from “common parlance” and judicial opinions likewise
fail. It is unremarkable that one would assume, unless told
otherwise, that another person’s bank PIN is kept private,
or would emphasize the secrecy of particularly important
information by referring to that information as “highly
confidential.” See Resp. 45-48 (emphasis added).
Lastly, respondent turns to inapposite civil-discovery
and judicial-sealing standards. When Congress intends to
import discovery’s specialized rules into FOIA, it does so
explicitly: Exemption 5 exempts documents “that would
not be available by law to a party other than an agency in
litigation with the agency,” 5 U.S.C. § 552(b)(5).13 To
13

Even Exemption 5, moreover, does not to incorporate all discovery
rules and privileges. See FOMC v. Merrill, 443 U.S. 340, 354 (1979).

 15
protect confidential information under Federal Rules of
Civil Procedure 26 and 45 (both of which post-date FOIA),
a party must show harm as an additional requirement, not
as part of establishing confidentiality. Rule 26(c)(1) requires a party seeking a protective order for any type of
information to prove “good cause.” The 1991 Advisory
Notes to Rule 45(d)(3)(B) specify that a district court may
quash a subpoena requiring the disclosure of “confidential * * * commercial information” if compliance would be
“unnecessary or unduly harmful.”14 Thus, in applying the
“qualified [evidentiary] privilege for confidential commercial information” in FOMC v. Merrill—an Exemption 5
case—this Court first analyzed whether the information
was “confidential” and “commercial,” 443 U.S. 340, 361
(1979), and then separately analyzed whether the harm
from disclosure justified applying the evidentiary privilege, id. at 363.
Judicial-sealing standards stem from the presumption
that court documents should be publicly available. Nixon
v. Warner Commc’ns, Inc., 435 U.S. 589, 597-598 (1978).
There is no common-law or constitutional right to information provided by “FOIA laws,” which “are of relatively
recent vintage.” McBurney v. Young, 569 U.S. 221, 234
(2013). Bankruptcy Code § 107 governing sealing “confidential commercial information” in bankruptcy records
has been interpreted to include both a confidentiality and
a harm requirement, In re Orion Pictures Corp., 21 F.3d
24, 27 (2d Cir. 1994), but it was enacted ten years after
FOIA and has no relevance to Exemption 4’s use of “confidential.” See 11 U.S.C. § 107.

14

Respondent also references Federal Rule of Criminal Procedure
17(c)(3), which is “substantially the same” as Civil Rule 45. Fed. R.
Crim. P. 17 Advisory Committee’s Note to 1944 Amendments.

 16
*
*
*
Respondent clearly finds the textual standard to be insufficiently stingy, but none of its arguments gives it warrant to redefine “confidential” to mean something other
than information that is secret and not publicly disclosed.
C. Congress has not ratified National Parks
Respondent also contends that the Court need not
even assess what “confidential” means—it should preserve National Parks because Congress allegedly ratified
that decision by subsequently enacting statutes that reference or use language like Exemption 4’s. But ratification presumes that Congress was aware of a well-settled
judicial interpretation of a statute, and then adopted that
interpretation by reenacting that statute using the same
or substantially similar language. Helsinn Healthcare
S.A. v. Teva Pharms. USA, Inc., 139 S. Ct. 628, 633-634
(2019). Congress has never reenacted Exemption 4 since
its original passage in 1966. Exemption 4 must thus be
interpreted according to what it meant when enacted in
1966—not what subsequent Congresses may have intended when passing other, later statutes.15 See Lorillard
v. Pons, 434 U.S. 575, 581 (1978) (ratification may occur
where “Congress adopts a new law incorporating sections
of a prior law * * * insofar as it affects the new statute”).
Respondent’s argument also neglects the timeline over
which the law has developed. The D.C. Circuit decided
National Parks in 1974, breaking with prior judicial interpretations of the statute. FMI Br. 21. Over the years,
other Circuits followed. Pet. 14 n.10 (gathering cases).
15

Respondent previously relied on a 1978 House Committee Report
to make this ratification or acquiescence argument—now replaced
with the underlying hearings and relegated to a footnote. BIO 15-16;
Resp. 40 n.19. As FMI previously noted, that Report declined to take
a position on National Parks’ merits and regardless is irrelevant to
interpreting a statute that a prior Congress enacted. Cert. Reply 4.

 17
Even if ratification were a valid theory here, respondent
does not identify when National Parks became such an
unquestioned, well-settled judicial interpretation that
Congress could be presumed to have adopted it. That
surely could not have occurred by 1975, when respondent’s
list of statutes begins. See Jama v. ICE, 543 U.S. 335, 349
(2005) (congressional ratification applies only if Congress
reenacted the same statute without change, and “the supposed judicial consensus [is] so broad and unquestioned
that [the Court] must presume Congress knew of and endorsed it”).
Respondent also does not identify which version of National Parks Congress supposedly endorsed. That test
has spawned numerous Circuit splits. Pet. 25-29. The
D.C. Circuit substantially altered it in 1992 to define “confidential” differently based on whether the requested information was voluntarily submitted to the government.
Critical Mass, 975 F.2d at 876-877; see Pet. 28-29. When
Congress enacted the 37 statutes included in respondent’s
appendix that post-date Critical Mass, did it follow the
D.C. Circuit or others? When there is no indication of
which potential judicial interpretation Congress presumably adopted, the presumption is that it stayed out of the
matter. E.g., NLRB v. Bildisco & Bildisco, 465 U.S. 513,
525 (1984).
Respondent’s list of statutes—enacted when Circuits
were gradually and inconsistently interpreting Exemption
4—illustrate that it is impossible, indeed illogical, to presume that Congress ratified any particular judicial interpretation of Exemption 4. Instead, it is far more likely
that Congress consistently referenced Exemption 4 or
used the same basic phrasing in other statutes to ensure
that agencies’ disclosure obligations remain consistent, regardless of shifting judicial interpretations.
Finally, respondent contends (Resp. 39-40 & n.19) that

 18
ratification applies because Congress regularly reviews
FOIA (citing reports on Exemption 4 from 1977 and 1984)
and has amended other FOIA provisions. Legislative-acquiescence arguments are at “best only an auxiliary tool”
that cannot overcome the plain meaning of Congress’s
words. Jones v. Liberty Glass Co., 332 U.S. 524, 533-534
(1947).
Moreover, FOIA’s amendments have been limited to
modifying particular exemptions or clarifying procedural
aspects of the law. This Court has declined to ascribe significance to Congress’s inaction where “Congress has not
comprehensively revised a statutory scheme but has made
only isolated amendments,” since “[i]t is impossible to assert with any degree of assurance that congressional failure to act represents affirmative congressional approval of
the Court’s statutory interpretation.” Alexander v. Sandoval, 532 U.S. 275, 292 (2001) (internal quotation marks
omitted). Congress could choose to revise Exemption 4—
but it has not. It remains this Court’s duty to interpret the
statute’s language.
D. Giving “confidential” its plain meaning advances FOIA’s purpose
Respondent opposes giving “confidential” its ordinary
meaning because doing so would “threaten[] serious damage to FOIA’s core objective of shedding light on ‘what the
government is up to,’” particularly regarding government
spending. Resp. 53 (quoting Favish, 541 U.S. at 171-173).
But policy arguments cannot rewrite plain statutory text.
See SAS Inst., Inc. v. Iancu, 138 S. Ct. 1348, 1358 (2018).
FOIA favors government transparency but does not
mandate disclosure at any cost. Congress balanced these
interests by limiting Exemption 4 to information “obtained from a person”—i.e., not government information.16
16

Respondent properly abandoned its certiorari-stage assertion that

 19
Accordingly, most examples respondent offers would not
change under a plain-text interpretation. For example, information on bank-bailout funds, Resp. 54-55, was ordered
disclosed because it reported “actions that were taken by
the government.” Bloomberg, L.P. v. Bd. of Governors of
the Fed. Reserve Sys., 601 F.3d 143, 149 (2d Cir. 2010).
Likewise, the CFPB request, Resp. 56, was for “[a]ll records by or between CFPB employees” regarding the issue—not information obtained from a person. Cause of
Action Inst. v. CFPB, No. 16-2434 (D.D.C. Dec. 13, 2016),
Dkt. 1, ¶ 14.
But even if Exemption 4’s plain reading gives the government discretion to withhold some private information,
that is simply the balance Congress struck. If certain categories of such information are so critical that they warrant disclosure despite Exemption 4, that policy judgment
is surely for Congress alone. Until Congress acts, however, its unambiguous statutory language governs. See
Henson v. Santander Consumer USA Inc., 137 S. Ct.
1718, 1725 (2017) (“[T]he parties and their amici manage
to present many and colorable arguments both ways on
them all, a fact that suggests to us for certain but one
thing: that these are matters for Congress, not this Court,
to resolve.”).
Even government spending—unquestionably linked to
a tradition of disclosure—does not justify categorical disclosure under the statute. Nor do all figures related to
government spending actually reflect government action.
See, e.g., McDonnell Douglas Corp. v. U.S. Dep’t of the Air
Force, 375 F.3d 1182, 1193 (D.C. Cir. 2004) (describing
SNAP data is not “obtained from a person”—an already-forfeited and
plainly wrong contention. See Cert. Reply 9-11. While the SNAP data
was obtained from EBT processors, not directly from retailers,
Resp. 64-65, EBT processors are contractually required to maintain
SNAP-data confidentiality. See FMI Br. 4.

 20
line-item prices in a government contract, unlike competing bottom-line bids, as “a matter of indifference to the
purpose of the FOIA”). Retailers’ store-level SNAP data
is one such example. The federal government’s role in
SNAP is to fund benefits for low-income beneficiaries and
approve retailers to participate in the SNAP program. 7
U.S.C. § 2013(a). The government already releases
SNAP-funding information17 and identifies SNAP-approved retailers.18
The amount of SNAP redemptions at a particular
store, in contrast, is not the result of any government action; it depends on and reflects SNAP beneficiaries’
choices to patronize that location. Releasing such information thus would not inform the public what the government is doing.19
Giving “confidential” its ordinary meaning also supports FOIA’s stated goal of prompt resolution. 5 U.S.C.
§ 552(a)(6). The National Parks standard often results in
cases oscillating repeatedly between the district and circuit courts. E.g., Washington Post Co. v. U.S. Dep’t of
17

FMI Br. 5 n.4 (citing SNAP, https://www.fns.usda.gov/pd/supplem
ental-nutrition-assistance-program-snap (last visited March 29,
2019)).
18
Where Can I Use SNAP EBT? https://www.fns.usda.gov/snap/retailerlocator (last visited March 29, 2019).
19
The Government mistakenly states that because the SNAP data
“corresponds to the government’s own payments of federal funds,” it
reflects governmental action. U.S. Br. 25-26. The Government’s prior
representation to the district court was correct—that the data “does
not speak towards Government spending at all.” Reporter’s Record
II:448 (emphasis added). Any payment from the Government is indifferent to the location. There is no payment from the Government to
retailers, only reimbursement, through the EBT processors, for the
selections made by SNAP beneficiaries. See, e.g., JA 79, 81-82; Reporter’s Record I:37-39. Store-level SNAP-redemption data memorializes actions SNAP beneficiaries take.

 21
Health & Human Servs., 865 F.2d 320, 328 (D.C. Cir.
1989) (remanding to resolve a factual question after reversing the trial court’s prior three orders). Moreover, as
respondent agrees, commercial interests dominate FOIA.
Resp. 58. The sheer volume of such requests dramatically
decreases agencies’ ability to timely respond, causing delays that likely have deterred journalists from using FOIA
for its intended purposes. Kwoka, FOIA, Inc., 65 Duke L.
Rev. 1361, 1422-1424 (2016). Especially pernicious are
those requesters that resell FOIA records, transforming
FOIA into “a mechanism for transferring wealth from the
federal government to private enterprise,” an “unjustified
form of corporate subsidy never contemplated, much less
endorsed, by Congress.” Id. at 1415. Respondent’s characterization of commercial requests as a “feature, not a
bug” contradicts its exultation of FOIA as key to the public’s right-to-know, because the former strangles the latter.
Finally, as a pragmatic matter, the plain text would reduce the administrative burden on the government and
courts. Exemption 4 accounts for only 1.39% of total exemption usage.20 Nonetheless, though comparatively few
FOIA requests result in litigation, “[t]he issues most commonly tried in FOIA cases arose under exemption 4.”
Kwoka, The Freedom of Information Act Trial, 61 Am. U.
L. Rev. 217, 269 (2011). The current test has also spawned
five Circuit splits that would be resolved by restoring Exemption 4 to its plain text. See Pet. 24-29.
III. IF ANY COMPETITIVE-HARM TEST SURVIVES, RESPONDENT PRESENTS NO MEANINGFUL OBJECTIONS
TO FMI’S PROPOSED REFORMATION
FMI proposed that if the Court chooses to depart from
20

Summary of Annual FOIA Reports for Fiscal Year 2017, at 8,
https://www.justice.gov/oip/page/file/1069396/download.

 22
Exemption 4’s plain language in the vein of National
Parks, it should strip away decades of accumulated gloss
and return the test to its roots: an inquiry into “the possibility that disclosure will harm legitimate private or governmental interests in secrecy.” National Parks, 498 F.2d
at 770. Respondent refuses to join issue with most of petitioner’s arguments, insisting that there is “no basis to
water down the longstanding competitive-harm standard.” Resp. 61 (capitalization revised). Instead, respondent repeats its deficient “common law” and ratification arguments.
Respondent’s use of the “common law” to defend
against reformulating the competitive-harm test is ironic.
If, as respondent suggests, unfair-competition law inspired Congress in crafting Exemption 4, then Exemption
4 should be read in harmony with the federal unfair-competition statute. See FMI Br. 48 (proposing RobinsonPatman Act standards to ascertain competitive harm).
Respondent has no rebuttal.
Respondent next suggests that the well-recognized
lower-court chaos can be ignored as the expected result of
a test that incorporates the adverb “likely.” Resp. 63. But
the conflict below involves more than gradations of “likelihood.” Respondent’s brief ignores the certiorari-stage
dissenting opinion in New Hampshire Right to Life v. Department of Health and Human Services, 136 S. Ct. 383,
383-385 (2015), which catalogues how lower courts disagree about even the factors to consider in assessing “competitive harm.” See also FMI Br. 49-50.
Respondent’s own amici confirm this confusion. Seven
advocate for a competitive-harm test—yet offer four different versions of it. Respondent cannot maintain that
National Parks requires no elucidation given the internecine battle over its meaning.

 23
CONCLUSION
The Court should reverse the judgment below.
Respectfully submitted.
Thomas R. Phillips
Gavin R. Villareal
Counsel of Record
Evan A. Young
Scott A. Keller
Stephanie F. Cagniart
Ellen Springer
BAKER BOTTS L.L.P.
98 San Jacinto Blvd.
Suite 1500
Austin, TX 78701
(512) 322-2500
gavin.villareal@bakerbotts.com

April 2019