Justices heard arguments on Monday in the case, which pits business groups against news organizations and open-government advocates.
In 1974, the D.C. Circuit Court of Appeals ruled that an exemption for “confidential” business records did not apply to information that simply wasn’t public. The exemption, the judges said, could only be used in cases where the government would have trouble getting the information in the future or where release of the data would cause “substantial competitive harm.” The decision paved the way for greater public access to information about private businesses.
The Trump administration and business advocates have branded the longstanding decision as “atextual” — a description intended to be taken as a grave insult by the court’s conservative majority.
At least three members of that majority — Justices Neil Gorsuch, Brett Kavanaugh and Samuel Alito — sounded hostile to the longstanding requirement in the D.C. Circuit ruling that companies show competitive harm before information they voluntarily provided to the government is released.
“The average person is supposed to have fair notice of the statute,” Gorsuch complained, suggesting that the D.C. Circuit read words into the law that simply aren’t there.