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By Marc Seltzer; the following podcast was originally broadcast at via iTunes on January 16, 2011 at Supreme Podcast.

. . .

This week the Supreme Court heard oral arguments in a case titled Federal Communications Commission v. AT & T.

The case comes out of the third Circuit, which includes the states Delaware, New Jersey and Pennsylvania, after a three judge appellate panel there decided in favor of AT&T, and the Federal Communications Commission, or FCC, petitioned the Supreme Court for review.

The case concerns the potential release of documents contained in an FCC investigation file.

The FCC, a federal agency, conducted an investigation into potential overcharging of the government by AT&T on a technology project for the New London school district.  AT&T had called the billing issues to the government’s attention after its own internal investigation and subsequently reached an agreement to resolve the issue.  However, a trade association, including competitors of AT&T, filed a Freedom of Information Act request, commonly referred to as a “FOIA,” seeking release of the FCC file.  The file included internal e-mails providing pricing and billing information, the names of employees involved in the billing issue, and AT&T’s internal assessments of the employee’s violations.

The FOIA request required government officials to turn over documents unless an exemption applies.

AT&T asserted that a law enforcement investigation exemption, #7, applied to information in the government’s possession, which is private, and if released would be an “unwarranted invasion of personal privacy.”

Supreme Court precedent on FOIA generally has embraced a balancing act.  In one recent noteworthy case, United States DOD v. ACLU, over the release of photographs of prisoner abuse by the US military, the high court explained:
Congress established in FOIA a “basic policy”
favoring disclosure, but it simultaneously recognized
that “important interests [are] served by the exemptions.”
Those exemptions embody Congress’s commonsense
determination that “public disclosure is not always
in the public interest.”  For that reason, the “Court consistently
has taken a practical approach” in interpreting FOIA’s
exemptions, in order to strike a “workable balance.”

The FCC reviewed AT&T’s request to keep the government’s files secret and decided that the personal privacy exemptions did not protect corporations from the release of private information:  “A corporation, as a matter of law, has no ‘personal privacy.'”

AT & T challenged the FCC decision by filing a lawsuit in federal district court, claiming that Exemption 7 for personal privacy applied to corporations.  AT&T argued that “person” is defined in the FCC exemptions to include an individual, partnership, corporation, association, or public or private organization other than an agency.”  If person included corporation, AT&T argued, it followed that personal privacy would include corporate privacy.  However, the district court agreed with the FCC, finding that a corporation could not claim protection of a personal privacy exemption.  Person may be defined as corporation, but personal was not defined, and neither case law nor common usage conceived of personal as applying to corporations.

On appeal, the Third Circuit Court of Appeals reversed, agreeing with AT&T that the use of the world person included corporate or other entities and the words personal privacy included information of a corporation such as AT & T.  Neither the Third Circuit nor the district court conducted the second part of the exemption inquiry to determine, if the law protected corporations’ privacy interests, did the evidence in this instance require withholding documents in order to protect those interests.

The US supreme court will now decide if the FCC was right in rejecting AT&T’s claim to a personal privacy interest.

In oral argument, the justices appeared skeptical of AT &T’s attempt to include corporations or other entities within the language of personal privacy, especially given no traditional of doing so.  Discussing why the issue did not appear to have come up before, Justice Breyer said:

“Well, one reason might be that this has really never been a problem because all the legitimate — or most of them, anyway — that these organizations that have interests in privacy are actually taken care of by the other 17 exemptions here.”

Justice Scalia: “Another reason might be that personal — nobody ever thought that personal privacy would cover this.”

AT&T’s counsel,  Jeff Kleinberg, raised the issue of the use of FOIA by commercial competitors.

“Increasingly, FOIA is being used by – by competitors and legal adversaries to obtain information, not about what the government is doing, not about what the government is up to, but about what evidence the government might have gathered from private parties.”

But Justice Ginzberg asked: “Is that a reason to change what was the understanding of Exemption 7?”

The justices then inquired into the understanding of the exemption at the time that FOIA was created.

Attorney Kleinberg:
Well, Your Honor, the –Attorney General Levy’s memorandum did not go into a long discussion or description of the analysis. It simply said it does not appear or does not seem to apply to corporations.

Justice Scalia, somewhat rhetorically looking for congressional intent stated,
“But if Attorney General Levy’s description, which was — which was issued for the purpose of telling all the agencies of the Federal government what this new statute meant — and it had a lot of ambiguities in it — if that was wrong about -about this subject, you would have thought somebody would have objected.
I mean, did some members of Congress who -who had passed FOIA say, this is outrageous; what about the personal privacy of General Motors? I’m not aware of any objections along those lines.”