by AC Ranasinghe – Law Clerk

On Wednesday, the Supreme Court will hear argument on whether corporations have a right to “personal privacy” that the government must respect when answering Freedom of Information Act requests.

Under FOIA, federal agencies generally must release their records to a requester, unless one of nine exemptions is met. At issue in Federal Communications Commission v. AT&T, Inc. is whether a personal privacy exemption to FOIA that covers information compiled for law enforcement purposes applies to corporations in addition to individuals.

The case originated when AT&T overcharged the government and informed the FCC of its error. The FCC promptly investigated and, ultimately, the parties settled. CompTel, a trade association representing some of AT&T’s competitors, filed a FOIA request with the FCC seeking documents produced during the AT&T investigation.

When answering the request, the FCC withheld identifying information about AT&T’s employees and customers as well as privileged financial information. However, the FCC was willing to produce other information, having concluded that AT&T is not covered by the “personal privacy” exemption for information compiled for law enforcement purposes. It reasoned that only persons, and not corporations, can have a right to “personal privacy” under that exemption.

AT&T appealed to the Third Circuit Court of Appeals, which disagreed with the FCC and held that a corporation may have a personal privacy interest within the meaning of the law enforcement FOIA exemption. The court held that FOIA defines a “person” as including corporations. It reasoned that a law enforcement personal privacy exemption could be appropriately applied to AT&T because “corporations, like human beings, are routinely faced with…investigations and face public embarrassment, harassment and stigma.” The FCC appealed to the U.S. Supreme Court.

The case boils down to a question of statutory interpretation: did Congress intend to have the FOIA “personal privacy” exemption extend to corporations?

As a practical matter, federal agencies already have difficulty complying with FOIA requests in a timely fashion whenever business entities object to disclosure. Extending the privacy exemption to corporations may make businesses more able to resist or significantly delay public disclosure.

Although this appears to be a corporate squabble between AT&T and CompTel, the ones left bloodied here are not necessarily the combatants. Should AT&T win, the public would lose access to these types of documents. The only remedy would then be for Congress to enact legislation that clarifies that the “personal privacy” exemption to FOIA only applies to natural persons.

FOIA, and the documents produced in response to public requests, are necessary for government accountability. An extension of the personal privacy exemption may close a window into how the government – and the corporations it regulates – behaves.