supplemental nutrition assistance program or snap snap is the current name for what used to be called the food stamp program argus leader wants a decade's worth of nap redemption data on an annual basis for about three hundred twenty one thousand retailers nationwide this is what percentage of the all of the food retailers is that is that a substantial percentage of all of them in the country i'm not sure that's in the record your honor honestly but i believe that that is a substantial percentage i think that most food retailers do accept snap benefits most i think that's right you're in chains and in all parsons of the city and all economic strata do you allow them to use the card and so forth i believe that's correct your honor it's can be used at supermarkets at retail grocery stores at convenience stores where the snap program sets the criteria that allows for eligibility require certain types of healthy foods and certain a certain restocking requirements and all that but i think that most grocery stores and retail stores do except do qualify under snap and do accept snap benefits so this is the second time that this case has come to this court u s d a initially opposed the disclosure of this information under snap under for you exemptions three describe how the snap benefits work and how u s d a maintains the information presented for retailer witnesses one expert witness and one witness from a trade association the national grocery association all over the retailers testified that the release of this snap data would reveal sensitive and well guarded information about sales and trends that individual stores and that the release would enable competitors to create a picture of each individual stores health went down on not everybody can get a snap card can they now that's right your honor there are there are criteria set for eligibility for sound so this would be people of lower economic capabilities generally that's correct your honor so if a store doing a lot of snap business would be in the areas of the city for instance that or the lower economic areas of the city would that be a fair  l perhaps of the overall look at this picture we have here i think that's generally true your honor i think i don't think there's any doubt of that different stores receive different abounds of stuff snap benefits have different levels of snap sales that in some stores and some convenience stores it can be a relatively high percentage and in other places you can be a relatively low percentage because when you go to buy groceries you don't know on the street car in the car and go across town well perhaps you do for for sales but most of the people purchased their groceries at a local venue right that's correct your honor yeah i think the testimony was that in general there are it varies from retail location to retail occasion obviously but certainly for convenience stores convenience stores that that have that accept snap benefits their customers tend to be very much either in the in the neighborhood or in their location where they pass by the convenience store most frequently as i understand your briefing and you're saying that if if these individual store amounts are released then that would cause stores outside the area to rush to that area and set up competition with them so it would would affect their business but if it is that really true are they going to move into the low economic areas with their stores to compete that seems counterintuitive to me better explain why do you think that's true or have i missed the the thrust of your argument no i think that is definitely one of our arguments your honor the testimony below was that if this snap data is  released there are a number of different ways that competitors would use it one is as you describe in determining whether or not to open a store in an area there are certainly retail stores as the testimony indicated there are retailers typical products and so there are folks who will there are retailers who will go after now customers in particular and so if this information was released and a competitor was for instance looking at well do i put a store in this location or a different location they could look at the stores in the area and say well this this store has the very high volume of snap is doing really well in snap it's got it's making a lot of money on snap and they might choose to go there that was certainly one of the ways that we think that this release would cause competitive harm but but in actuality most of the snap business because of the nature of the customers are in the lower economic areas and you generally at least in the part of a country that i live don't see or large chains and so forth sell everything from overshoes to hamburger and in a big thing moving into those areas of the city even if they know that there's a bigger margin for this this this business is that yes your honor and remember this is a nationwide release of data that that the argus leader is requesting and there's no doubt that there are going to be some places where people were retailers aren't going to go but there are other places where according to the testimony where retailers will seek out this information and will seek out these snap customers it is a fiercely competitive business the money that is used to provide for these better margins most that's united states tax money isn't in this program and so taxpayers of all venues have an interest in in the supportive of that or might find that that is information that they'd like to have and so you're what you're saying is you you're shutting them out of information dealing with their tax money because you can the newspapers who may want to publish it can't that could be caused by the submitters of the information that's what exemption for is all about certainly you are correct that the money that is funding the snap program is federal dollars there's no dispute about that  however u s d a already does publish a fair amount of information about how it spends how it spends snap money that the total amount of snap expenditures altogether the amount by state the amount by congressional district the amount by zip code  all of that the amount also it's broken out by categories of retailers whether it's a grocery store a convenience store all of that is out publicly what u s d a has never released and until this court's opinion in the prior prior opinion in this case had never had always assumed was improper to be released was store level redemption data on each particular store of the three hundred twenty one thousand stores that have participated in snap over this ten year period  and so it is not as if it is the u s d a s position that the public doesn't have some right to know how these much how these dollars are being spent just when it comes to the exemption for analysis the question is well i program grown greatly over the last ten or fifteen years for instance and doubled tripled or quadrupled and and doesn't that give pause to the average taxpayer everywhere wondering whether it's being administered as well as it could be and thus they kind of like to have some of this information so they could you know individual stores and the whole nine yards so to speak in my office these are no you're correct your honor i don't know if it's in the record i do know that that the snap program has grown substantially if i think it was in particular around two thousand and eight or not and if it your magically increased i think it has tapered off slightly since then but i think it's still a sixty eight billion dollar program without a doubt a lot of money and a as i said i don't think that i do i understand that the public's interest and the need to know at the end of the day however i think that u s d a is has published a fair amount of information about how the snap program operate a obviously is the whole reason u s d a keeps this information is in order to pursue potential fraud or you know issues with individual retailers they have a system that's set up to do that and so what you're really left with is does it make sense for the public to need to know exactly how snap customers are spending the steps not funds at a particular store when the disclosure of that can can very easily be used to to model and calculate the total sales so the actual store can very easily be used to determine whether or not a store is profitable or are healthy or subject to a takeover or subject to going out of business missings that as to what the precise problem generalized idea is troubled by that but the idea is that that goes directly to whether or not it's competitive harm to that store if if a store or for instance is not doing well and a competitor can determine from the release of this information that that store is not doing well it is much more likely that that competitor is going to move in and try and force that store out or isn't that kind of speculative i mean if the store is not doing well who wants to go there to compete well there's hope you're correct in that there are a whole lot of factors that go into the determination of whether or not to move into an area i don't think that was disputed what i think the district court got wrong however was in assuming that what was in concluding that all of the information taken together there's so many different factors that go into determining whether or not to move in to a specific location that the release of the snap data what isn't going to add anything substantial to that determination let me ask you do you agree that the the finding in this case by the district court of the lack of competitive form that we review that for clear that's a difficult question because i think you i think you do your honor i think it's a factual determination that's determined for plain error at the application  of a four exemption is reviewed de novo but i think that the determination of whether or not there was actual competitive harm is a factual or is factual question let me run an alternative perhaps way that we could have national parks test requires substantial harm to the competitive position of the person from whom the information was obtained and in this case the information was obtained from third party processors not the stores themselves right i think that's right you're on that's what this court has concluded in its prior decision i will say however that wouldn't that in and of itself be a pretty easy way to affirm the case on a different basis i'll answer that this way the d c circuit has also held has more recently held that exemption for is broad enough to encompass potential harm to a third party even if that third party is not the scimitar of the information so and that's the that's the board of trade of the city of chicago case which is cited in our briefing and so that would be that's that's the answer to that question are obviously also this this information starts at the retailers it flows through a third party process or into the u s d a i think the reality is that in a lot of ways this is information that comes from a retailer who is going to be suffering the competitive harm reserve you argue the stigma that's not really caused by a competitor or isn't no that's that's correct your honor we do argue that the court did not properly consider a stigma i would i would also say that the d circuit has also acknowledged that external indicia of competitive harm or don't have to be limited just to the harm caused by a competitor i know that's what i think the d c circuit said in either public citizen or in one of the supplemental cases to the national parks but by the d c circuit i think the first circuit has said that in ninety five as well that issues with program efficiency can be considered and that issue overall income is that in the record or does that vary dramatically it does vary dramatically i believe it's in the record i think that the record testimony was that it could be anywhere from five to fifty percent and what would what would be the determining factors that caused that variance i think a lot of it has to do with demographics the demographics of the customers at the store the demographics of the area in which the store is located you know if it's a low economic area why it's to be fifty percent of their business if it's the non economic depressed area of people with fewer snap cards it's going to be less that i think that's generally the case i think also as i mentioned earlier there are retailers who who market specifically to snap customers and so you would expect they would get them to be a higher percentage of total sales and if it's the higher percentage was that record below did that show that if if there was a higher percentage of nap income to a particular grocer that the that it was easier to predict other aspects of that business model whether it be overall income profit margins what have you yes i think there are some testimony that i want to be careful not to get into but if you look at when foreman's testimony she talks directly about the correlation between snap sales and actual sales and how those can be correlated and in general you know mr contract of the u s d a s expert said that the release of this data would be a windfall to two modelers everywhere in order to figure out how in order to figure out total sales at a store based on the snap sales may please accord my name is john arneson i've been representing are due sleeper media in this case alone since january of two thousand and eleven judge kelly you may remember i was here about four years ago  exemption three let me clarify a couple of things this is a for you case this was a case that after the first exemption three came and passed through this court and she rolled in our favor denying the government's motion but it was thoroughly briefed it was thoroughly supported by the government's declaration such as they were and by the national grocers association in particular after losing that we then went to this bench trial where the issue was soley one thing exemptions for the third prong of the task is the confidentiality aspect and u s d a very specifically narrowed the focus of the trial to the aspect of the case is whether disclosure of the information requested which was simply the gross annual sales of each snap retailer or whether that disclosure would likely cause substantial competitive harm that is in our consensus here is that that's a factual determination a predictive fact and the bench trial led to the court determining and finding that the predictive fact had not been shot and she was not persuaded in other words the negative  that it had not been established that it was likely to cause its natural harm so we're here today essentially to determine whether that was a clearly erroneous finding and i think the record is replete with evidentiary basis that would suggest that that is not a clearly erroneous finding which of course then fits in to the exemption for  did it does not fit into the mold of exception for the other aspect of the case that was actually tried and i bring this up because i think judge greer in your question might have touched upon it in trying to find maybe different reasons or a simpler way to affirm this case is was this information actually obtained from a person and of course we do have this third party connection between the retailer in the credit card processors and the government the key thing that we're missing here though and i did argue this i did was not successful in front of the lower court is my client asked the government for its records now for example the reason they have they're paying these people of course is because the retailers have allowed the eligible households and judge being let me just mention that the only people who are using these cards are people who qualify because of being low income so it's you have to be eligible you have to qualify so it's not kind of an across the board standard and that amounts to anywhere between the united states census bureau two thousand and fifteen claims about five percent of the grocery business in this country is snap  eyes own website has come up with a number that is ten percent but you know it's five or ten percent now that's one hundred percent change and that certainly would a factor would affect somebody as decision on how much  reliance to put on those numbers but it's still it's a huge number sixty nine billion dollars but it's still you know roughly a minor percentage of the whole sales of the so the point i would get back to you though we're asking for the government's record now what if these retail stores instead of going through the e p t the card process the credit card process let's say be eligible families who just come in and take a basket of food or whatever cart of food and that starve keep track of the items that they took and then they would submit that list of products three loaves of bread two gallons of milk submit that to the government and then the government paid them we wouldn't even be here because we would be very clear that the record being requested is the government's record of tax dollars s the only reason we're here is because they don't do it that way they actually it's a financial this is how much money was spent here but it wouldn't have to be that way and that's how if we are going to back up the truck so far as to say in this case that there are other aspects of exemption for beyond the likelihood of substantial competitive harm which was the sole essential issue that was tried in this case if we go back and start adding well program effectiveness which by the way u s d a i mean they didn't appeal the case they never brought a program effectiveness why are we now to assume that f m r i knows more about what program effectiveness should be than u s d a which administers the program seems a little peculiar to be but if we're to add new elements to this case on appeal for the first time i would back the truck up so far as to say let's find an even simpler way to deal with this case and say wait a minute this is not even an exemption for case this is not the typical for exemption for a case in which somebody is trying to get information that is outside the realm of government that is submitted to government by the private sector for whatever reason because the government demands it for something because they want to do business with the government this is a record of having done business with the government it's a completely different kettle of fish i was telling my for my argus leader people on the way up here i said this isn't just the difference between apples and oranges this is the difference between apples and elephant where that far removed from what the typical for your case was intended to do for you it was intended to protect the public's right to see government records to you know get rid of the secrecy to remove the veil of secrecy and to that extent they created for the protection of the other side these exemptions nine of them they are to be narrowly construed because for the is intended and designed to be a public transparency governmental transparency action and it's been interpreted that way for ever what about the testimony without getting into anything that's under seal that this disclosure of this information  that's a good question because it relates the one that was asked of gavin and that is how do you use the information if you have it if you know that grocery store and they had one hundred thousand dollars worth of  snappishness and you don't know what can you extract from that can yeah exactly what do you have the evidence and you don't know if that's ninety five percent of their business you don't know if that's forty two percent of their business and when we talk about this one how much of the store's business is  business that's not known so you don't have that piece of information to kelp you connect the dots that's exactly the reason why that model while it may tend to enhance some projection it's still such a conjectural projection that quite honestly if you're dealing with the infrastructure of the grocery business or even a wal mart which is considered the big bad bear here the infrastructure that they would be required to invest in based on that kind of information they're not that stupid these are not stupid business people and they're not going to be baking those judgements on the speculative well we don't know if that if that hundred thousand dollars for grocery store a j is five percent of their business or fifty percent of their business make a big difference but they won't know that we're only looking for the gross annual annual sales of us nap business yes it's nap retailers in that right yes i'm sorry yeah we're not looking for their their their actual sales we just want their snap isms i thought that yeah i'm sorry i'm sorry  so essentially i think that yes the court had the benefit of this rebuttal expert who was brought in three days before trial connect the information and not you know having more information isn't unhelpful but it certainly doesn't carry the day and in this case i don't i think the question is is it clearly erroneous for the court to found it doesn't carry the day and i would suggest that you know there are other things in the record i mean on my client's had expert testimony to now most people who aren't in a position to afford to even undertake a for your case as well as a person requesting a record i mean when the in this case ninety nine point nine percent of the people who wanted to see this information would have quit in august of two thousand and eleven my client should win this case just for its perseverance  essentially the government failed to respond in timely way there was no answer to the request for administrative appeal it would have died on the vine my client of course took this more seriously and we proceeded but the at every stage we have been met with really speculative contradictory evidence you're talking about the statement you're talking about judge being you asked a question about why would somebody move in where the business you are we had testimony both at the summary judgment level and by form declaration which are in the record and we also had testimony at trial that suggested if you the reason you don't want to have this is from the retailers the reason we don't want to have people know the snap information is if it's better or worse than expected things are going to happen better or worse well first of all i don't know what normal is and i don't think the retailers know what normal is either because we don't know if cumberland store on the corner and in boston is five percent fifteen percent thirty five percent three percent we don't know what the profit margins are and we can make decisions based on that i mean we we don't know and  there anything in the record as to what makes this seemingly mundine information newsworthy no there isn't and with all due  it's it's information that they believe they're entitled to to find out where the money's gone so i mean i guess you know follow the money so to speak it's an income post in some words in the constitution talks about freedom of the press right that would be part of it but i guess i don't want to get off on the first amendment since we're you know the complicate things but i think there is other stuff you know we we did get an expert we got two experts it's not something that most people could do and i wasn't you know i didn't go out and buy somebody i actually ended up with a guy a doctor volpi who at the time i was connected to him through you know the economic great vine i later find out that he actually had started his career as a u s d a economist and still did work for u s d a so it's not like i was going outside the box to find somebody who hated the government or whatever i actually went within and found you know and ended up with somebody who had a very valid opinion that the other testimony was not going to be as a package going to create a the likelihood of substantial competitive harm and that's what we were dealing with and that's what the court went with i would also say that to me one of the most remarkable aspects of this case is this it the priest summary judgment stage to determine whether they wanted to proceed on summary judgment on a motion the u s one thousand plus three hundred twenty one thousand plus snap retailers to tell them that there was going to be an r f i that it was going to affect them and that they should take a look at it and i would like to read and i'm it's not a lengthy thing but i want to read what that r f i said just to tell you or remind you i'm not telling you anything you probably know more about this than i do you this r f i was pointed out to every one of three hundred twenty one thousand retailers and i'm not fin to waste time looking for but what it basically said was and it was it was the most leading question ever and he said if you think that the release of your snap annual data is going to be a problem tell us why it's going to be harmful competitively essentially it led these people right to telling the government so they could use it in support of their summary judgment motion why this was going to be a danger and the responses did they get they got two hundred thirty five people responded eighty of them used in the testimony of the person from the u s d a who did the correlation eighty of them used a word competition that would have allowed us da to even consider that to have been an exemption for complaint and then when it came time to were identical it probably didn't leave the greatest probative taste in anybody's mouth and it certainly told me that there were three hundred twenty thousand people out there and i really do i've got a minute thirty i really do want to find is where there are sponsors from from smaller grocers or they from some of the bigger retailers was out in the record a yacht every single one of the well there there were five hundred forty one people who responded to the r five two hundred thirty five were opposed to release in eighty of them mention the word competition so there were actually five hundred forty plus responses every one of which i have read there are three of us in the world who have done that opposing counsel for the u s d a and and their office and it's so everybody is identified some of them were actual trade you know like f m i was one of the people who responded but it varied but for the most part there was no reference or substantive basis for finding competitive farman in the region is i'm not i'm not criticizing any of these people i'm not criticizing the retailers not criticizing f m r i but some things just cannot be proven because they're not in this is not a failure on their part to prove substantial competitive harm or the likelihood of it i'm telling you or submitting to you that it can't be established it's just one of those things is just too amorphous it's just not substantial enough it's a piece of material evidence that's going to treat the likelihood of substantial competitive harm and when three hundred twenty thousand of three hundred twenty thousand two hundred whatever don't bother way of putting speculation and hope people don't want to tell other people about certain things and businessmen don't like to cheer for money information that doesn't mean it's going to cause great harm thank you very much  expert who testified regarding how he could use this information he said the question was and do you have an opinion about how the release of individual store snap data will impact the modeling process in the forecast and he says yes it will create a windfall for us and for our competitors to be able to target him to benchmark these store sales we believe we can easily accomplish that with this information that was the testimony of a person who has spent his career modeling stores that he could take this information and really opinion with me the reasons well know your i mean he he went through a nice day described this is how this is the the end result this is what i could do with it he didn't break down the individual steps he did talk about the steps that he uses in his current model which the court misunderstood or frankly i don't think there's any dispute about that he said i build a model for current stores for my current clients that i can use to predict ninety to ninety nine percent accurately what my current clients are going to do and the district court misunderstood that information to mean oh that the snap data released then won't cause any harm because we've already got models out there that are modeling stores at ninety ninety nine percent accuracy well in fact what he was saying was when i start out with my client's own sales data i can match up my model to their sales data he wasn't saying that i've already created a model that can that can predict nine hundred ninety nine percent of other stores that was just an error that the court made in its interpretation which i think is fundamental to its conclusions regarding competitive harm and that quickly on the on the person issue i do want to get back to judge greer's question the u s supreme court has held that obtain from a person has information obtained outside the government that's the federal open market commission case and then this is the d c circuit case that i mentioned to you before the board of trade of city of chicago the d c circuit has held that the scope of exemption for is sufficiently broad enough to encompass financial and commercial information concerning a third party and that exemption for is a political whether the commercial interest belongs to the party that provided the information or third party with that i would ask that the court consider this case in reverse and remained to the district court for furthe