Court seems unimpressed by ‘corporate privacy’

Thursday, January 20, 2011

WASHINGTON – The Supreme Court heard arguments yesterday in a key Freedom of Information Act case, leaving the strong impression that it would rule against corporations that sought to shield documents from the public under the guise of “personal privacy.”

In the case of FCC v. AT&T, the telecom giant invoked an FOIA exemption that protects from disclosure those documents that would constitute “an unwarranted invasion of personal privacy.” AT&T was hoping to shield from competitors documents about disclosures it made to the FCC about possible overcharges. The government countered that the exemption protects only “individual human beings,” not corporations, but the 3rd U.S. Circuit Court of Appeals ruled in favor of the company.

The case attracted more than usual interest because it raises the controversial issue of corporate personhood, stirred up by last year’s decision in Citizens United v. Federal Election Commission. That ruling treated corporations like people in the context of First Amendment protection for political speech.

But the justices yesterday seemed unlikely to rule for corporations-as-persons in the FOIA context. Justices including Antonin Scalia and Stephen Breyer attacked AT&T’s position, and only Justice Samuel Alito Jr. seemed sympathetic to the company’s broad view of personhood.

Chief Justice John Roberts Jr. gave support to the government position when he read from a personal list of adjectives whose roots are in nouns that have a different meaning. The list was meant to counter AT&T’s argument that because the adjective “personal” has the noun “person” in it, the phrase “personal privacy” should protect all entities included in the FOIA's definition of “person” – which includes foreign and domestic corporations and even state and local governments.

“I tried to sit down and come up with other examples where the adjective was very different from the root noun,” said Roberts. “Craft” does not equate with “crafty,' Roberts noted, just as “squirrel” and “squirrelly” and “pastor” and “pastoral” have divergent meanings. Roberts' recitation of the words drew laughs, and seemed to clinch his vote against AT&T.

Justice Ruth Bader Ginsburg challenged Geoffrey Klineberg, the lawyer for AT&T, to give an example of the kind of document he wanted to protect that would not be covered by other FOIA exemptions, such as those shielding confidential financial information and trade secrets. Klineberg offered an example that could have come from WikiLeaks: e-mails between corporate officials “in a frank exchange about the competence and intelligence of a would-be regulator of the corporation.”

Scalia interrupted angrily, “Excuse me. Why does that relate to their privacy?” He added, “Anything that would embarrass the corporation is – is a privacy interest?” Klineberg said it could be if it would damage the reputation and goodwill of the company. But he said the company’s invocation of personal privacy would not automatically shield such a document; privacy would still have to be weighed against other interests.
Later Breyer asked why in the 35-year history of the FOIA, no other corporation had invoked the personal privacy exemption.

Klineberg said gamely that that was “one of the things that has puzzled us in this case.”

Breyer guessed that the reason was that corporations are protected by other exemptions that shield trade secrets and other kinds of corporate information filed with the government.

At which point Scalia chimed in, “Another reason might be that nobody ever thought that personal privacy would cover this.”

After the argument, even Doug Kendall, the Constitutional Accountability Center president who has been most critical of what he sees as the Court's pro-business tilt, was ready to declare a rare victory.  “The Court today appeared appropriately skeptical of AT&T's astonishing assertion that it has the same personal privacy rights as individuals,” said Kendall. 

News organizations, accustomed to opposing the government in FOIA cases, this time sided with the FCC in its view that personal privacy protects only people. Ruling for AT&T’s position would “severely inhibit the public’s ability to keep a check on corporate behavior and government regulatory functions,” the news media brief led by the Reporters Committee for Freedom of the Press asserted. “This Court should not indulge corporations in any attempt to circumvent FOIA for fear of negative publicity.”

“This bid to extend the FOIA’s 'personal privacy' protections to entities other than individuals is, colloquially speaking, about as meritless as they come,” wrote Dan Metcalfe in separate brief filed by the Collaboration on Government Secrecy at American University. Metcalfe is the former director of the Justice Department’s office of information and privacy, which advises federal agencies on FOIA.