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FCC v. AT&T

On September 9, 2008, the Federal Communications Commission (FCC) ruled that Exemption 7(C) does not exempt corporate documents from Freedom of Information Act (FOIA) requests. Congress designed the exemption in question to prevent any public disclosure of law enforcement records which "could constitute an unwarranted invasion of personal privacy." The FCC ruled that corporations do not qualify for personal privacy rights because they are not natural born persons.

On September 22, 2009, the Third Circuit overruled the FCC. The Third Circuit held instead that corporations do qualify for personal privacy rights, at least for the purposes of the FOIA exemption in question, Exemption 7(C).

The FCC petitioned the Supreme Court to review the Third Circuit's opinion. On September 28, 2010, the Supreme Court granted review. EPIC filed a "Friend of the Court" Brief on November 16, 2010.

Oral argument took place on January 19, 2011.

Top News

  • Supreme Court: No "Personal Privacy" For Corporations in FOIA Cases: In FCC v. AT&T, The Supreme Court held that federal protections for "personal privacy" do not permit corporations to prevent disclosure of government records. AT&T sought to prevent the disclosure of documents the company had submitted to a federal agency, claiming that the corporation's "personal privacy" prevented release of the records pursuant to the Freedom of Information Act. EPIC filed a "friend of the court" brief in the case urging the Justices to reject AT&T's claim. The Court agreed with the FCC, EPIC and other amici, writing, "The protection in FOIA against disclosure of law enforcement information on the ground that it would constitute an unwarranted invasion of personal privacy does not extend to corporations. We trust that AT&T will not take it personally." EPIC's brief cited the commonly understood meaning of "personal privacy" in the work of legal scholars and technical experts, as well as the use of these terms in an extensive survey of US privacy laws. For more information, see EPIC: FCC v. AT&T. (Mar. 1, 2011)
  • Supreme Court Hears Oral Argument in "Personal Privacy" case: The Supreme Court heard oral argument in FCC v. AT&T. EPIC has filed a "friend of the court" brief in the case, which concerns the meaning of "personal privacy." EPIC urged the Justices to reject AT&T's claim that the corporation's "personal privacy" prevents the public disclosure of records subject to the Freedom of Information Act. EPIC cited the commonly understood meaning of "personal privacy" in the work of legal scholars and technical experts, as well as the use of these terms in an extensive survey of US privacy laws. The records at issue in the case pertain to contract work for the federal government. The Supreme Court agreed to review a lower court opinion which held that AT&T could assert a personal privacy interest. EPIC's brief argued that if upheld, the lower court's "interpretation of 'personal privacy' would stand as an outlier, untethered to common understanding, legal scholarship, technical methods, or privacy law." For more information, see EPIC: FCC v. AT&T. (Jan. 19, 2011)
  • EPIC Files Amicus Brief in Supreme Court Case on "Personal Privacy": EPIC has filed a "friend of the court" brief in a case concerning the meaning of "personal privacy." EPIC urged the Justices to reject AT&T's claim that its "personal privacy" prevents the public disclosure of records subject to the Freedom of Information Act. EPIC cited the commonly understood meaning of "personal privacy" in the work of legal scholars and technical experts, as well as the use of these terms in an extensive survey of US privacy laws. The records at issue in the case pertain to contract work for the federal government. The Supreme Court agreed to review a lower court opinion which held that AT&T could assert a personal privacy interest. EPIC's brief argued that if upheld, the lower court's "interpretation of 'personal privacy' would stand as an outlier, untethered to common understanding, legal scholarship, technical methods, or privacy law." For more information, see EPIC: FCC v. AT&T. (Nov. 15, 2010)
  • In Open Government Case, Government Opposes "Personal Privacy" Rights for Corporations: The Solicitor General filed the government's brief in an important Supreme Court case that will determine if corporations have personal privacy rights in Freedom of Information Act cases. The Solicitor General is defending the FCC's decision to disclose records pertaining to an investigation concerning AT&T. AT&T challenged the agency and a federal appeals court sided with AT&T and held that the FOIA grants corporations personal privacy rights. In its brief, the Solicitor General argues that the opinion is "a singular outlier in an otherwise uniform body of more than 35 years of decisional law and commentary." EPIC will file an amicus brief in support of the FCC. For more information, see EPIC: FCC v. AT&T. (Nov. 9, 2010)
  • Supreme Court Will Decide If Corporations Have Personal Privacy Rights: The Supreme Court has agreed to review AT&T v. FCC, a case in which the Third Circuit Court of Appeals held that corporations have personal privacy rights. In that case, AT&T prevented the public disclosure of records held by a government agency, arguing that the corporation's privacy rights would be violated. The case hinges on the interpretation of the "personal privacy" exemption in the Freedom of Information Act. EPIC, which both advocates for privacy and supports open government, is likely to file an amicus brief. For more information, see EPIC: FCC v. AT&T and EPIC: Open Government. (Sep. 29, 2010)

Question Presented

On appeal to the Supreme Court of the United States from the Third Circuit:

Does FOIA give corporations the same personal privacy rights as natural born people?

Background

The Freedom of Information Act empowers ordinary citizens to access federal government records. The government is legally bound to disclose records to any citizen or organization that files a proper "FOIA" request. These requests are essential tools in ongoing efforts to educate American citizens about a range of prominent civic issues and to hold elected officials accountable to the informed consent of the governed. EPIC uses FOIA requests to uncover essential facts about a wide range of government programs, including private sector involvement in those programs.

The Supreme Court is scheduled to hear FCC v. AT&T, an important case about the reach of FOIA. In 2005, AT&T objected to a FOIA request for the details of its government contract work in New London, Connecticut. The company argued that it qualifies for a legal exemption from FOIA requests: Exemption 7(C). The Federal Communications Commission ("FCC") held that it does not. AT&T appealed to a federal appeals court, which then overturned the FCC's decision. The Supreme Court granted review of the case on September 28, 2010.

Congress designed FOIA Exemption 7(C) to ease the minds of people worried that cooperating with federal investigations would lead to embarrassing public disclosures of their personal information. Because of the overarching purposes of the FOIA, Congress limited Exemption 7 in the interest of government transparency. The FOIA creates a presumption that records in possession of a federal agency are subject to disclosure. Exemption 7(C) permits an agency, in some circumstances, to withhold records concerning law enforcement matters. According the to the Attorney General, the records may only be withheld if the agency reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions, or the disclosure is prohibited by law. See the Attorney General's March 19, 2009 FOIA Memo.

Exemption 7(C) protects records which "could reasonably be expected to constitute an unwarranted invasion of personal privacy." The legal definition of "personal privacy" is the most important point for both parties in this case. The FCC applied the ordinary meaning of the term when it dismissed AT&T's objections. The Third Circuit Court of Appeals agreed with AT&T and overturned the FCC, holding that corporations have the same "personal privacy" rights under Exemption 7(C) as natural born persons. The FCC appealed the Third Circuit's decision. The Supreme Court will soon determine which party is interpreting the law correctly.

Does "personal privacy" protect corporations, or does it only apply to natural born persons? The traditional, mainstream approach to interpreting legal language is to look to its ordinary meaning. The Third Circuit held that the term "personal privacy" unambiguously includes corporations despite the ordinary meaning of the term. It relied on precedent from a recent case holding that "If . . . a statute includes an explicit definition, we must follow that definition, even if it varies from that term’s ordinary meaning." The court reasoned that "personal" derives from "person," and that "person" is defined in the Freedom of Information Act to include corporations. It never considered if "personal" has any special meaning, such as "intimate," or if the complete phrase "personal privacy" derives from "person." The Supreme Court will have the chance to evaluate these considerations on review.

The Supreme Court will also consider AT&T's allegation that the contents of the requested file include cost, pricing, and billing information, and that divulging it might put the company at a competitive disadvantage. Congress provided a separate exemption, Exemption 4, which protects information which is (1) commercial or financial, (2) obtained from a person, and (3) privileged or confidential.

Procedural Background

On April 4, 2005, an industry group that includes AT&T's competitors filed a FOIA request with the FCC's Enforcement Bureau ("The Bureau"). The group, named CompTel, requested public disclosure of file EB-04-IH-0342. The file contains details about an FCC investigation into AT&T's government contract work. The Bureau referred the request to its Investigations and Hearings Division (IHD).

On May 27, 2005, AT&T sent a letter to the IHD to oppose the release of EB-04-IH-0342. AT&T alleges that the file includes confidential commercial information about costs and pricing, as well as internal information about the company's systems, processes, and operations. AT&T argued that FOIA "Exemption 7(C)" requires the FCC to withhold file EB-04-IH-0342 from CompTel.

The specific exemption AT&T cited, 7(C), only limits the power to reject requests for law enforcement records that "could reasonably be expected to constitute an unwarranted invasion of personal privacy." AT&T asserted that corporations are private citizens and that personal privacy rights apply to natural born persons and corporations "with equal force."

On August 5, 2005, the FCC Enforcement Bureau's Investigations and Hearings Division ruled against AT&T, stating "Generally, businesses do not possess personal privacy interests." AT&T appealed within the FCC. On September 9, 2008, the FCC affirmed the ruling, holding that "[AT&T's] position that a corporation has personal privacy interests within the meaning of Exemption 7(C) is at odds with established Commission and judicial precedent."

On September 26, 2008, AT&T petitioned the Federal Court of Appeals in the Third Circuit to review the FCC's ruling. The court overruled the FCC, holding that corporations do have a right to personal privacy under FOIA Exemption 7(C). The court's ruling prevented the disclosure of file EB-04-IH-0342.

The FCC filed its petition for Supreme Court review on April 22, 2010. On September 28, 2010 the Supreme Court granted review. EPIC filed a "Friend of the Court" Brief on November 16, 2010.

Oral argument took place on January 19, 2011.

Further Details about the Records Requested

On August 6, 2004, before this case began, AT&T discovered a series of errors in its employees' government contract work. Employees working in New London, Connecticut failed to comply with three different FCC regulations. First, they billed the government in one funding year for services provided during the previous funding year. Second, they billed for services the government had not authorized. Third, they billed for services not eligible for government funding.

Once AT&T informed the FCC's Enforcement Bureau about the errors, the Bureau opened an investigation. AT&T provided the Bureau with internal documents, and the Bureau stored them in file EB-04-IH-02.

AT&T eventually negotiated and secured a settlement, which took the form of a Consent Decree. AT&T agreed to pay $500,000 to the US Treasury and to train its employees to comply with FCC regulations, and the Bureau terminated its investigation.

Now that the investigation is closed, file EB-04-IH-02 contains AT&T's initial letter, the FCC's request for company documents, AT&T's response and the requested documents, drafts and final versions of the consent decree, and agency emails, notes, and memoranda discussing the investigation. AT&T alleges that the file contains confidential commercial information about costs and pricing, as well as internal information about its systems, processes, and operations.

EPIC's Interest

Congress enacted the Freedom of Information Act to foster, not hinder, government transparency. That includes the records of private companies tasked with implementing government programs, especially when they fail to comply with relevant regulations. As such, EPIC has a clear interest in making sure that corporations and other private entities do not hide behind "personal privacy" rights to cover up wrongdoing. FOIA Exemption 7(C) clearly restricts privacy rights to natural born persons.

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