In a major victory for supermarkets, convenience stores, and other Supplemental Nutrition Assistance Program (SNAP) retailers, the U.S. Food and Nutrition Service (FNS) has finally agreed to start publishing its administrative Final Agency Decisions (FADs) in food stamp authorization and disqualification proceedings. On January 4, 2017, in response to a multi-year effort spearheaded by OFW Law Principal Stewart D. Fried under the Freedom of Information Act (FOIA), FNS’s FOIA and Privacy Act Officer advised that the agency would commence publishing “properly redacted versions of FNS SNAP FADs on the FNS public web” beginning in early February 2017.
FNS’s change in position represents a 180° about-face from its long-standing refusal to publish its administrative decisions in cases involving retailer authorization, trafficking, and other SNAP violations on its website. During the past three years, OFW has urged FNS to commence publishing these administrative decisions on the internet. FNS consistently declined to do so, even after a Congressional amendment to FOIA during March 2016, which required federal agencies to commence posting information on its website after receipt of three or more requests. FNS is currently the only USDA agency that fails to post its administrative decisions on its website.
Several questions regarding FNS SNAP FADs remain unanswered, including how quickly FNS commences posting FADs after issuance, where on the FNS website these opinions will be posted, and whether FNS’s redactions will be overboard. FNS would be well-advised, in furtherance of President Obama’s January 2009 pledge to create the most transparent and open government in U.S. history, to make SNAP FADs word-searchable and place a search engine on its webpage.
FNS’s correspondence did not address whether it will commence posting redacted versions of previously issued FADs. During late 2016, FNS advised several requesters, in response to FOIA requests, that each would have to pay in excess of $80,000 in order to obtain less than two years’ of redacted SNAP FADs. Several sought fee waivers because the information was going to be used for non-commercial purposes. Other federal agencies have, over time, posted previously issued administrative decisions, and FNS should do so with its SNAP FADs.
It is unclear what prompted FNS’s change in position. FNS has been unsuccessful in recent SNAP-related FOIA litigation. FNS also received at least three requests for SNAP FADs during 2016. Or perhaps it was the specter of a new USDA Under Secretary for Food, Nutrition and Consumer Services. Regardless of the trigger, FNS’s decision to start posting SNAP FADs represents an important, albeit belated, first step in illuminating governmental activities involving the authorization and disqualification of SNAP retailers. Stay tuned to find out if FNS will fully let in the sunshine on its past and future final agency decisions.
OFW Principal Stewart D. Fried represents SNAP and WIC retailers, including providing Regulatory Advice, Preparation of Training Programs and Compliance Protocols, and during Administrative and Judicial Review Proceedings before the Food and Nutrition Service and the Federal Courts.
