The Supreme Court on March 1, 2011, issued a decision in the matter FCC v. AT&T, No. 09-1279, 562 U.S. __ (2011), on the question of whether corporations have "personal privacy" for purposes of Freedom of Information Act exemptions covering law enforcement records, "the disclosure of which 'could reasonably be expected to constitute an unwarranted invasion of personal privacy.'" Although the Court's holding is narrowly drawn to interpreting this particular statutory provision, the Court's ruling will likely have far-reaching effects for corporations large and small.
AT&T participated in the FCC-administered E-Rate (or Education-Rate) program, which was created to enhance school and library access to advanced telecomm and information systems. In August 2004, the FCC's Enforcement Bureau ("Bureau") initiated an investigation after AT&T voluntarily reported to the FCC that it might have overcharged the Government for services provided under the E-Rate program. AT&T provided the Bureau with various company documents as part of the investigation, and the matter was resolved in December 2004 through a consent decree. Months later, CompTel, a trade association that represents some of AT&T's competitors, submitted a request under the Freedom of Information Act ("FOIA") to see "[a]ll pleadings and correspondence" in the FCC Bureau's files on the AT&T investigation. After AT&T opposed CompTel's request, the Bureau issued a letter ruling in which it determined that some of the information provided by AT&T was protected under the FOIA exemptions for trade secrets and commercial or financial information (Exemption 4), and for unwarranted invasions of the personal privacy of individuals identified in AT&T's submissions (Exemption 7(c)). Specifically, the Bureau determined that documents such as cost and pricing data, billing-related information, and identifying information about staff, contractors, and customer representatives was protected under Exemption 4.
The Bureau also decided to withhold other information about individuals identified in AT&T's submissions under the "personal privacy" exemption, Exemption 7(c). However, the Bureau did not extend Exemption 7(c) to withhold potentially embarrassing or invasive information about AT&T itself. Although the FCC agreed with the Bureau's interpretation upon review, the Court of Appeal for the Third Circuit rejected the FCC's determination. In a unanimous decision (Justice Kagan took no part in the decision), the Supreme Court reversed the Third Circuit's decision, thereby upholding the FCC's and Bureau's interpretation of "personal privacy" in FOIA Exemption 7(c).
Justice Roberts, who authored the opinion on behalf of a united court, squarely rejected AT&T's argument that because the statute defines "person" as including corporations and other legal entities, and the word "personal" must be related to those "persons," the exemption should cover corporate as much as individual personal privacy. The Court's decision really came down to a matter of grammar: "in ordinary usage, a noun and its adjective form may have meanings as disparate as any two unrelated words." The term "person" is defined in FOIA, but "personal" is not. Justice Roberts explored various legal, historical and grammatical bases for the plain and ordinary meaning of the term "personal." In the end, the Court held that "the protection in FOIA against disclosure of law enforcement information on the ground that it would constitute an unwarranted invasion of personal privacy does not extend to corporations. We trust that AT&T will not take it personally."