High court hears argument in FOI corporate privacy case

Kacey Deamer | Freedom of Information | Feature | January 19, 2011

It was a lesson in vocabulary during oral arguments at the U.S. Supreme Court held Wednesday morning, as the high court wrestled over the meaning of the word "personal." The case, FCC v. AT&T, concerned a federal Freedom of Information Act request for documents regarding a Federal Communications Commission investigation into AT&T's participation in a federal telecommunications build-out program. AT&T self-reported that it may have overcharged the government for its services.

The question before the Supreme Court on Wednesday was whether Exemption 7(c) of the FOIA recognizes and protects the "personal privacy" of corporate entities in the same manner as it does for individuals. Exemption 7(c) states "records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information . . . could reasonably be expected to constitute an unwarranted invasion of personal privacy."

CompTel, a trade association that represents some of AT&T's competitors, filed a FOIA request seeking access to the investigation documents.

The FCC maintained that because a corporation is not a natural born person, it cannot assert any "personal privacy" exemption under FOIA. AT&T eventually filed a lawsuit to prevent disclosure. The U.S. Court of Appeals in Philadelphia (3rd Cir.), concluded that Exemption 7(c)'s plain text states that corporations can assert a "personal privacy" exemption because "'personal' is the adjectival form of 'person,' and the statutory definition of 'person' includes a corporation."

Anthony A. Yang, an assistant to the U.S. Solicitor General, argued the case for the FCC, noting at argument that while "'person' is used in certain legal contexts to refer to artificial persons and corporations and the like, 'personal' is not." Yang continually tried to bring the court back to his "key point" that "when Congress used the phrase 'personal privacy' in 1974 amendments to FOIA it would have had no reason then, or now, to think that term would have referred to corporations."

Counsel for AT&T, Geoffrey Klineberg, argued that certain corporate activity, such as internal conversations and deliberations, were entitled to privacy protection under FOIA because there was an expectation that such activity was to remain private. Justice Antonin Scalia pressed Klineberg for more examples and without pausing for Klineberg to respond, listed various phrases that supported the FCC's position that phrases using the term "personal" are rarely applied to corporate entities. Using General Motors as his model corporation, Scalia noted: "You talk about personal characteristics. That doesn't mean the characteristics of General Motors. You talk about personal qualities. It doesn't mean the qualities of General Motors. You talk about a point of personal privilege. It's not a privilege of a corporation."

Klineberg explained that the idea of a corporation being included under the definition of a person "would surprise many people." Scalia continued to push Klineberg for modern examples where "anybody refers to the interests of a corporation as the 'personal privacy.'"

Justice Stephen Breyer asked Klineberg for any examples from the past 35 years of a government agency that harmed a corporation's claimed privacy through the release of documents. Klineberg responded without an example, but said he was "puzzled" by the fact that it has taken 35 years for the issue to arise. Breyer and Scalia suggested that perhaps this is because no one considered the issue before or because no one cared.

Argument swung back to vocabulary once again when Chief Justice John Roberts stated that he had tried to "come up with other examples where the adjective was very different from the root noun." He shared a few of his examples: "craft and crafty", "squirrel and squirrelly", "pastor and pastoral."

Klineberg went on to cite the dictionary definitions of "person" and "personal." The argument began to lose momentum as Justices Sonia Sotomayor and Ruth Bader Ginsburg continued the questioning, asking for definitions on other aspects of the exemption. While Klineberg wrapped-up the argument, answering Sotomayor's request for the meaning of "similar files," Breyer pulled out a dictionary and silently flipped through it.

The Reporters Committee for Freedom of the Press, along with 22 other media organizations, filed a friend-of-the-court brief in the case urging the court to reject AT&T's position. Justice Elena Kagan recused herself from the case.