(NB: At the end of 2016, in Argus Leader Media v. Department of Agriculture, a federal district court judge ruled that USDA could not withhold certain "food stamp" data under Exemption 4.  The basis of the ruling, which issued at the conclusion of a bench trial, centered on whether disclosure would cause competitive harm.  The Eight Circuit affirmed the district court's opinion on appeal by a private intervenor in May 2018.  The new lawsuit detailed below seeks, among other things, an order under the APA, 5 U.S.C. § 706(2), declaring that Texas-based retailers' SNAP data are confidential under state law.  Plaintiffs also challenge USDA's extension of its new policy, in light of Argus Leader, for the release of SNAP data belonging to online retailers.)

Texas Retailers Sue USDA to Keep SNAP Data Confidential

Michelle Casady, Law360, Aug. 6, 2018

The Texas Retailers Association filed suit against the U.S. Department of Agriculture on Monday, urging a Texas federal judge to revisit an earlier court's “stale” ruling concerning the release of certain data about participation in the Supplemental Nutrition Assistance Program now that online retailers can participate in the program.

The TRA told the court that when a district court ruled in 2016 that release of store-level sales data about SNAP participation wouldn't harm food retailers, it was before participation in SNAP was extended from only brick-and-mortar stores to online retailers as well via a change in USDA policy and launch of a pilot program in 2017.

The association argued the release of that information, pursuant to a Freedom of Information Act request, constitutes a violation of the Texas Trade Secrets Act, as it would put physical stores at a competitive disadvantage with online retailers.

The TRA explained that when the district court issued its ruling in November 2016 that the information could be released pursuant to a request lodged by a newspaper in South Dakota. The court “didn't disagree” that the information was competitively significant, but determined that the “competitive harm of releasing that data was attenuated by the various other factors retailers would consider in opening rival brick-and-mortar locations — which the court assumed was the only practical way to compete using store-level data.”

Read more here.