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).
Oral argument took place on January 19, 2011.
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?
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.
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.
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.
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.
- Supreme Court Opinion
- Audio Recording of Oral Argument (MP3)
- Government’s Reply (PDF), Jan. 10, 2011
- Brief for AT&T (PDF), Dec. 9, 2010
- “Friend of the Court” Brief for EPIC (PDF), Nov. 16, 2010
- “Friend of the Court” Brief for Citizens for Responsibility and Ethics in Washington, et. al. (PDF), Nov. 16, 2010
- “Friend of the Court” Brief for the Collaboration on Government Secrecy (PDF), Nov. 16, 2010
- “Friend of the Court” Brief for the Project on Government Oversight, the Brechner Center for Freedom of Information, and Tax Analysts (PDF), Nov. 16, 2010
- “Friend of the Court” Brief for the Constitutional Accountability Center (PDF), Nov. 16, 2010
- “Friend of the Court” Brief for Reporters Committee for Freedom of the Press (PDF), Nov. 16, 2010.
- Brief of Intervenor Comptel (PDF), Nov. 10, 2010
- Brief of the FCC/Solicitor General (PDF), Nov. 9, 2010
- Grant of Certiorari (PDF), Sep. 28, 2010
Certiorari Stage Documents (PDFs)
- Petition for Certiorari, Apr. 22, 2010
- Brief in Opposition for AT&T
- Brief in Support for Intervenor CompTel
- Reply Brief for the United States
- “Friend of the Court” Brief for Public Citizen, et al.
Third Circuit Court of Appeals (PDFs)
Federal Communications Commission (PDFs)
- FCC Opinion: In The Matter of SBC Communications Inc., Sep. 9, 2008
- Investigation and Hearings Commission Ruling Against AT&T’s Letter, Aug. 5, 2005
- AT&T’s letter in Opposition to CompTel’s Freedom of Information Act Request, May 27, 2005.
- CompTel’s Freedom of Information Act Request, Apr. 4, 2005
- 2004 Consent Decree between FCCEB and AT&T Inc., Dec. 14, 2004
- Order Adopting the Consent Decree, Dec. 14, 2004
Supreme Court Review
- Personal Privacy and the Right to Know, Editorial, New York Times, Feb. 6, 2011.
- Justices Appear Skeptical in AT&T Privacy Case, Jess Bravin, Wall Street Journal, Jan. 20, 2011
- Court Weighs Whether Corporations Have Personal Privacy Rights, Adam Liptak, New York Times, Jan. 19, 2011.
- Company Privacy Rights Questioned by U.S. Justices, William McQuillen and Greg Stohr, Bloomberg, Jan. 19, 2011
- High court should rule against AT&T’s ‘personal privacy’ requestWashington Post Editorial Board, Jan. 18, 2011
- Corporate Rights Are Again at Issue as AT&T Wants to Keep Info a Secret, Mark Walsh, ABA Journal, Jan. 1, 2011
- Why Companies Don’t Deserve Personal Privacy Rights, Adam Cohen, Time, Dec. 15, 2010
- Corps Don’t Need Personal Privacy, Daily Editorial Board, The Minnesota Daily, Oct. 5, 2010
- All Rise: Supreme Court’s Geekiest Generation Begins, David Kravets, Wired, Oct. 1, 2010.
- Supreme Court Takes Cases on Corporate Rights, Adam Liptak and Duff Wilson, New York Times, Sep. 28, 2010
- Company Privacy Rights Get Review at U.S. High Court, Greg Stohr, Bloomberg, Sep. 28, 2010
- Supreme Court Will Decide Whether Corporations Have Right to Privacy, Nicole Allan, The Atlantic, Sep. 28, 2010
- Top Court to Decide Corporate Privacy Rights, James Vicini, ABCNews, Sep. 28, 2010
- High court takes case on corporate privacy, Associated Press, Sep. 28, 2010
Lower Court Opinion
- 3rd Circuit Says Corporations May Take Info Requests ‘Personally’, Shannon Duffy, The Legal Intelligencer, Sep. 24, 2009
Supreme Court Review
- Reach Out and Touch Someone:FCC v. AT&T reveals the limits of corporate personhood at the Supreme Court, Dahlia Lithwick, Slate, Jan. 19, 2011
- Argument recap: Losing on a privacy claim?, Lyle Denniston, SCOTUSBlog, Jan. 19, 2011
- High court hears argument in FOI corporate privacy case, Kacey Deamer, Reporters’ Committee for Freedom of the Press, Jan. 19, 2011
- Supreme Court Case Threatens to Expand “Personal” Rights for Corporations, Alliance for Justice, Jan. 19, 2011
- Supreme Court to Hear Three Cases Involving The FOIA, Ameriborn News, Nov. 29, 2010
- An Obscure Case Would Keep Corporate Information Deeper in the Shadows,Jon Talton, Seattle Times: Sound Economy, Nov. 24, 2010
- Supreme Court to Decide if AT&T has Personal Privacy Rights, All Gov., Nov. 22, 2010
- Do Corporations Have Personal Privacy Rights?, Steven Aftergood, Secrecy News, Nov. 18, 2010
- Will FCC v. AT&T be Citizens United, Part II, Constitutional Accountability Center, Nov. 18, 2010
- Will Corporations Be Recognized As Having a Right to Privacy?, Marie-Andree Weiss, The Secure Times, Oct. 6, 2010
- How the New Supreme Court Could Change the Way You Do Business, Sean Silverthorne, BNET: The View From Harvard Business, Oct. 4, 2010
- SCOTUS To Decide if Corporations Have Privacy Rights, Jessica Pieklo, Care 2, Sep. 30, 2010
- Supreme Court to rule on corporate privacy, John Cook, Yahoo News: The Upshot, Sep. 29, 2010
- Supreme Court to decide if AT&T is a person, Sara Jerome, The Hill: Hillicon Valley, Sep. 29, 2010
- Could corporate-privacy case gut FOIA?, Tony Mauro, First Amendment Center, Sep. 29, 2010
- Supreme Court to Hear Corporate Privacy Case, Annie Youderian, Courthouse News, Sep. 28, 2010
- Now Teed up at the High Court: Do Corporations Have Privacy Rights?, Ashby Jones, Wall Street Journal: Law Blog, Sep. 28, 2010
- Supreme Court To Decide If Corporations Have Privacy Rights, Daniel Fisher, Forbes: Full Disclosure, Sep 28. 2010
- High Court To Take FCC-AT&T Corporate Privacy Case, Erin Fuchs, Law 360, Sep. 28, 2010.
Lower Court Opinion
- 3rd Circuit Rules Personal Privacy Interest Applies to Corporations, CLA Publications, Jan. 4, 2010
- AT&T v. FCC: 3rd Circuit Rules that Corporations May Invoke Personal Privacy Exception to FOIA Disclosure, David Johnson, Digital Media Lawyer’s Blog, Oct. 12, 2009