Do Corporations Have Personal Privacy Rights?

The Supreme Court will decide next year whether corporations are entitled to “personal privacy” and whether they may prevent the release of records under the Freedom of Information Act on that basis.  FOIA advocates say that assigning personal privacy rights to corporations could deal a crippling blow to the Act.

The case before the Court — known as FCC v. AT&T — arose from a FOIA request to the Federal Communications Commission for records of an investigation of a government contract held by AT&T.  The FCC found that the requested records were subject to release under FOIA.  But AT&T challenged that decision and won an appeals court ruling that the documents were law enforcement records that were exempt from disclosure because their release would constitute “an unwarranted invasion of personal privacy” — namely, the “personal privacy” of AT&T.

The appeals court noted that the word “person” is defined in the Administrative Procedures Act (APA) to include corporations, and it went on to infer from this that the FOIA exemption for “personal privacy” in law enforcement records must logically extend to corporations as well.

But “that analysis does not withstand scrutiny,” the government argued in its petition (pdf) to the Supreme Court for review of the case.  Personal privacy can only apply to individual human beings, it said, and not to other entities.  “The court of appeals’ novel construction would erroneously create a new and amorphous ‘privacy’ right not only for corporations but also for local, state, and foreign governments [which also fall under the APA definition of ‘person’].”

A concise description of the pending case as well as key case files and amicus briefs filed with the Supreme Court by several FOIA advocacy organizations are conveniently available from the Electronic Privacy Information Center.  (EPIC prepared one of the amicus briefs and I was among the signatories to it.)

Corporate information that qualifies as a “trade secret” has long been exempt from disclosure under the FOIA.  But prior to this case, no court had ever held that a corporation also has personal privacy rights.

If affirmed by the Supreme Court, the appeals court ruling “could vastly expand the rights of corporations to shield their activities from public view,” said Sen. Patrick Leahy this week, and it “would close a vital window into how our government works.”

“Congress never intended for this [personal privacy] exemption to apply to corporations,” he said.  “I also fear that extending this exemption to corporations would permit corporations to shield from public view critical information about public health and safety, environmental dangers, and financial misconduct, among other things — to the great detriment of the people’s right to know and to our democracy.”

“I sincerely hope that our nation’s highest Court… will narrowly construe the personal privacy exemption, consistent with congressional intent,” said Sen. Leahy. “Should the Court decide to do otherwise, I will work with others in the Congress to ensure that FOIA, and specifically the personal privacy exemption for law enforcement records, remains a meaningful safeguard for the American people’s right to know,” he said.

FCC v. AT&T is scheduled to be argued before the U.S. Supreme Court on January 19, 2011.