More Rights for Corporations? On the Docket: AT&T v. FCC

Last term, the buzz was all about Citizens United, which found that corporations are entitled to First Amendment free speech protection.  This term, the Court has the opportunity to extend even more rights to corporations in AT&T vs. FCC, as AT&T seeks protection from unwarranted privacy violations under the Freedom of Information Act.

The Freedom of Information Act exempts from mandatory disclosure records or information compiled for law enforcement purposes when such disclosure could reasonably be expected to constitute an unwarranted invasion of “personal privacy.” 5 U.S.C. 552(b)(7)(C)

The question presented in AT&T is whether Exemption 7(C)’s protection for “personal privacy” protects the privacy of corporate entities.

This case arose when CompTel, a trade industry group that represents some of AT&T’s competitors, filed a FOIA request for FCC records relating to that agency’s investigation of AT&T. AT&T objected to the release of these documents, citing Exemption 7(C), and arguing that disclosure would reveal trade secrets and invade the corporation’s “personal privacy” under the Act. The FCC rejected AT&T’s application to prevent disclosure, holding that Exemption 7(C) does not apply to corporations. AT&T appealed the decision to the Third Circuit Court of Appeals, who reversed, finding that a corporation is a “person” within the definition of 7(C). The Court cited Rubin v. United States, 449 U.S. 424, 429-30 (1981) (quoting TVA v. Hill, 437 U.S. 153, 187 n.33 (1978)) and looked to the plain language of the statute to find that a corporation is a person under the Act (as defined in 5 USC 551(2) ) and that “personal” is the adjectival form of “person.” Thus, personal privacy applies to a “person” under the statute’s definition, and includes corporations. The Court did not reach the issue of the whether this particular disclosure was “unwarranted” under the Exemption, however, since the FCC issued no ruling on that issue.

The FCC, joined by the Obama Administration, appealed the ruling to the Supreme Court. Justice Kagan, in her role as Solicitor General, is the Counsel of Record in the petition for writ of certiorari. She has of course recused herself from the decision in this case. Critics worry that if corporations are able to use privacy concerns to prevent disclosure, they will abuse this exemption to obscure information that the public has a right to know and cover up bad behavior. Supporters are concerned that such FOIA requests will be used by competitors to gain access to sensitive information provided to the government, or be used by consumer advocates to harass corporations. Either way, it will be interesting to see if this Court will continue the trend it started with Citizens United, and extend even more personal rights to corporations.