Court’s FOIA decision cheers openness advocates

Wednesday, March 2, 2011

  • Oral arguments audio
  • WASHINGTON — The Supreme Court’s decision yesterday denying the right to “personal privacy” for corporations under the Freedom of Information Act was a cause for celebration — and some laughter — for advocates of openness.

    Ruling in FCC v. AT&T, the Court agreed that when Congress said law enforcement records which invade “personal privacy” could be shielded from disclosure under FOIA, it was thinking of protecting the privacy of real people, not corporations.

    The 8-0 decision — new Justice Elena Kagan bowed out of the case — was a defeat for AT&T, which invoked the privacy exemption in trying to keep certain documents it had submitted to the Federal Communications Commission from being released to a competitor who had requested them under FOIA.

    To reach its conclusion, the Court went through an often-humorous analysis of the relationship between adjectives like “personal” and their root nouns, like “person.” AT&T had argued that the law’s use of the word “personal” could be linked back to the definition of a “person” under the Administrative Procedure Act, which includes corporations as well as other kinds of public and private organizations.

    But Chief Justice John Roberts, writing for the Court, rejected that analysis, asserting that adjectives sometimes “acquire distinct meanings of their own.” As examples, he offered “crabbed,” which does not correlate to the word “crab,” and “corny,” which he said has “little to do with corn.” During oral arguments in January, Roberts had come to Court with other examples, including “pastor” and “pastoral,” and “squirrel” and “squirrely.”

    Similarly, Roberts said the “ordinary meaning” of the word “personal” refers to individuals — as in “personal characteristics, personal effects, personal correspondence” and the like. If the CEO of a company said to the chief financial officer, “I have something personal to tell you,” Roberts added, “we would not assume the CEO was about to discuss company business.” In fact, Roberts said, “we often use the word personal to mean precisely the opposite of business-related.”

    As amusing as the decision was to read, it was devoid of any lofty language about the public’s right to know or any other justification for FOIA. The relatively brief decisions — 12 pages — was all about the words of the statute.

    But that was more than long enough to make openness advocates happy. While the oral argument clearly forecast a defeat for AT&T, FOIA advocates had some lingering concern because of last year’s controversial Citizens United v. Federal Election Commission campaign-finance ruling, which treated corporations like people under the First Amendment when it lifted restrictions on corporate campaign expenditures.

    “The Supreme Court appropriately treated AT&T’s argument in this case as the joke that it was,” said Doug Kendall, founder of the liberal Constitutional Accountability Center. “But the fact that the Court was even debating whether AT&T could claim ‘personal privacy’ shows how dramatically the playing field in the courts has shifted toward the interests of corporations. Only in a post-Citizens United world could a claim like AT&T’s be argued with a straight face before the U.S. Supreme Court.”

    Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, which filed a brief in the case, said, “We’re gratified that the U.S. Supreme Court took a position backed by the legislative intent behind the Freedom of Information Act as well as common sense.” The FOIA, the brief noted, offers other exemptions from disclosure that businesses can invoke to shield trade secrets and other documents.

    “The Supreme Court’s decision is an important victory for government transparency,” said Adina Rosenbaum, a lawyer for Public Citizen, which was co-counsel for the FOI requester in the case. “If records could be withheld on the theory that they would ‘embarrass’ a corporation, as AT&T had argued, the public would be deprived of important information about corporate wrongdoing and the government’s response to it.”

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