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Tuesday, September 28, 2010

Supreme Court to hear corporate challenge to FOIA based on "personal" privacy

The United States Supreme Court today granted a petition of certiorari filed by the federal government, seeking to overturn a ruling by the 3rd Circuit Court of Appeals that allowed AT&T to prevent the disclosure of documents held by the Federal Communications Commission (FCC) related to a 2004 investigation. The release of the documents was sought by telecommunications trade association CompTel, through a request made under the Freedom of Information Act (FOIA, 5 U.S.C. §522). In seeking to block the disclosure, AT&T has argued that releasing the documents would result in an invasion of personal privacy, and therefore renders the disclosure requirements in FOIA inapplicable. The argument hinges on AT&T's contention that as a corporation it is a "person" in the legal sense of the term, and so should enjoy the same protection from invasions of privacy that individuals do. The Circuit Court accepted AT&T's interpretation of "person," noting that the company's position is fully consistent with definitions in the U.S. Code — Title 1, for instance, states that "the words 'person' and 'whoever' include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals" (1. U.S.C. §1).

Given the statutory language, it's hard to argue with the reading or the consideration given by the 3rd Circuit, although that interpretation is the sole question presented in the government's petition:   "Whether Exemption 7(C)'s exemption for 'personal privacy' protects the 'privacy' of corporate entities."  Aside from its inclusion in Title 1, similar definitions for "person" appear in other statutes, such as the one used in the context of wire and electronic communications:  "'person' means any employee, or agent of the United States or any State or political subdivision thereof, and any individual, partnership, association, joint stock company, trust, or corporation" (18 U.S.C. §2501). The administration has argued that, at least with respect to FOIA, AT&T's actions to block disclosure is the first time in the history of the law that the personal privacy provisions have been applied to a corporation. That fact notwithstanding, where literal interpretations of U.S. laws do not give any indication that Congress intended to have the law applied in a way other than what the law says, federal courts in general and the Supreme Court in particular have historically been unwilling to re-interpret statutory language unless is it too ambiguous to be applied consistently. Ambiguity does not seem to be at issue here, but rather whether the statutory language matches the intent of the legislation; such discrepancies are rarely resolved by the Court, which prefers to leave it to Congress to revise its legislation if its use as enacted subverts the purpose of the law.

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