If The Supreme Court Breaks FOIA, Congress Is Responsible For Fixing It

[UPDATE: A unanimous Supreme Court reversed the Third Circuit, and held that corporations do not have "personal privacy" rights under FOIA.]

As widely reported (WSJ Law Blog, The Atlantic, Bloomberg, Los Angeles Times, ABC News, etc) the Supreme Court granted certorari in FCC v. AT&T, which will determine to extent to which corporations can preclude the government from disclosing information which might "embarass" the corporation.

It’s no exaggeration to say the Freedom of Information Act is the primary means by which citizens discover what their government is doing behind the scenes. The Act, however, has a couple exemptions including:

trade secrets and commercial or financial information obtained from a person and privileged or confidential;

and

records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information could reasonably be expected to constitute an unwarranted invasion of personal privacy,

The first is generally called Exemption 4 (since it’s 5 U.S.C. § 552(b)(4)), the second Exemption 7(C) (since it’s 5 U.S.C. § 552(b)(7)(C)). Those two links are to the Justice Department’s thorough FOIA handbook.

In my humble opinion, it’s clear that, with Exemption 4, Congress wanted to avoid compelling disclosure of sensitive information about businesses, while, with Exemption 7(C), Congress wanted to avoid compelling disclosure of sensitive information about individuals. That’s what "personal privacy" meant to the Congress and President who passed FOIA.

Last September, the Third Circuit ruled in FCC v. AT&T that, regardless of what Congress intended, FOIA defines "person" to include corporations, and so "FOIA’s text unambiguously indicates that a corporation may have a ‘personal privacy’ interest within the meaning of Exemption 7(C)." Slip op., p. 12.

I don’t think that’s the right way to begin the analysis; the question is not what Congress meant by person, but what it meant by personal privacy, and I doubt the majority of Congress or the American people thought at the time, or think now, that corporations are so indistinguishable from actual human beings that they, too, are entitled to "personal privacy."

In a footnote, the Third Circuit obliquely took on that argument, too:

[W]e note that interpreting 5 “personal privacy” according to its plain textual meaning serves Exemption 7(C)’s purpose of providing broad protection to entities involved in law enforcement investigations in order to encourage cooperation with federal regulators. Corporations, like human beings, are routinely involved in law enforcement investigations. Corporations, like human beings, face public embarrassment, harassment, and stigma because of that involvement. Reading “personal privacy” to exclude corporations would disserve Exemption 7(C)’s purpose of encouraging corporations – like human beings – to cooperate and be forthcoming in such investigations.

Slip op., p. 12, Fn 5. I don’t think that holds up either. First, corporations don’t need encouragement to cooperate with federal investigators, since the federal government can, in virtually all circumstances, compel the corporations to disclose the information, or lawfully retaliate against the corporation by denying it regulatory approval to keep doing business. Second, corporations won’t respond to the same sort of encouragement that compels humans to cooperate, since corporations don’t care about acting in morally or ethically appropriate ways, they care about — and are legally required to care solely about — maximizing profits. Corporations cooperate with the government when it serves their interests, not because they feel guilted into it.

But that’s just my opinion; it’s an opinion shared by  the FCC and Public Citizen, who filed briefs requesting certorari, but it’s still just an opinion, and the Third Circuit’s opinion isn’t palpably wrong.

Maybe the Supreme Court will agree with me. Maybe they won’t. Statutory interpretation is a funny thing.

Which puts responsibility back where it eventually belongs: Congress and the President. It’s not like the Supreme Court is looking to see if there’s a constitutional right to corporate privacy, they’re interpreting a statute passed by Congress and the President. If the Supreme Court finds that corporations are entitled under FOIA to "personal privacy," then it’s up to Congress and the President to change the law, just as they did with the Lily Ledbetter Fair Pay Act when five Justices of the Supreme Court botched the interpretation of the Civil Rights Act of 1964.

If you have a minute of time, why not call your Representatives and Senators and ask where they stand on it?

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