Not all Persons Are Entitled to Personal Privacy under FOIA

The Supreme Court’s analysis hinged on its conclusion that “person” and “personal” are two very different words and that the adjectival form of one word does not necessarily have the same or similar meaning as the underlying noun. Given the commonly understood meaning of the word personal and the term “personal privacy,” and given the context of FOIA and the provision at issue’s relationship to other FOIA sections, the Court concluded that personal privacy does not extend to corporations or other artificial entities. 

FOIA was originally enacted in 1966 in support of the belief that the people have the right to know about Government activities and therefore should have access to Government records. FOIA governs the release of documents and information in the U.S. Government’s possession to the public and it includes nine exemptions allowing for the Government to withhold records sought when they concern certain sensitivities or personal rights. The case arose from a 2004 Federal Communications Commission (“FCC”) Enforcement Bureau investigation of AT&T under the FCC’s e-rate (Education Rate) program. During the investigation, AT&T provided the FCC with numerous documents. A trade association of competitive communications providers, CompTel, submitted a FOIA request to the FCC for the AT&T documents, and AT&T opposed the request.

While the Enforcement Bureau withheld some documents from disclosure to CompTel under other FOIA exemptions, both the Bureau and later the FCC refused to exempt other AT&T corporate documents (except for redacting some individuals’ names) under Exemption 7(C). 5 U.S.C. § 552b(c)(7)(C). Exemption 7(C) applies to “records or information compiled for law enforcement purposes” that “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” The FCC concluded that granting corporations personal privacy rights under Exemption 7(C) was contrary to FCC and judicial precedent.

The U.S. Court of Appeals for the Third Circuit disagreed with the FCC. It held that corporations were entitled to personal privacy under Exemption 7(C). The Third Circuit noted that the Administrative Procedures Act, which FOIA amended, defines the noun “person” to include corporations. The Third Circuit, therefore, concluded that the word personal, an undefined term in FOIA, as the adjectival form of person, must “refer back to that defined term.”

The Supreme Court examined the words “person” and “personal” independently, noting that “a noun and its adjective form may have meanings as disparate as any two unrelated words.” The Court then provided a multitude of reasons why that is the case with the words “person” and “personal” as used in Exception 7(C):

• Since the word “personal” is undefined in the statute, the Court examines its common meaning, which is used ordinarily to refer to individuals and in many cases is used as the opposite of business-related.

• Dictionary definitions of “personal” suggest that the word is not commonly defined by reference to corporations.

• Just because the word “person” in common legal usage typically includes corporations, that does not mean in context that the word “personal” in common legal usage also refers to corporations. Moreover, there was a dearth of legal precedent that AT&T cited to support that interpretation.

• When considering the words surrounding personal, as the Court must do when interpreting a word at issue from a statute, Exemption 7(C)’s inclusion of the two words “personal privacy,” when viewed together, suggests more than just “the sum of its two words: the privacy of a person”; instead it connotes “a type of privacy evocative of human concerns.”

• Other than the Third Circuit opinion, AT&T was unable to cite to any judicial precedent or statutes that refer to a corporation’s personal privacy. Conversely, editions of leading treatises relatively contemporaneous with the enactment of FOIA, reflect the common law understanding at the time that personal privacy did not apply to corporations (citing Restatement (Second) of Torts § 652I, comment c (1976) and W. Prosser, Law of Torts, § 97 (2d ed. 1955), § 112 (3d. ed. 1964) and § 117 (4th ed. 1971)). 

• In response to AT&T’s argument that the Supreme Court has recognized corporations’ privacy interests in the Fourth Amendment context, the Court noted that corporations’ constitutional or common law privacy interests were not at issue in this case.

The Court also found support for its holding in two other provisions of FOIA, Exemptions 4 and 6, which both preceded the enactment of Exemption 7(C) by a number of years. Exemption 6 uses the same phrase as Exemption 7(C) in exempting from disclosure “personnel and medical files and similar files the disclosure of which would constitute a clearly unwanted invasion of personal privacy.” 5 U.S.C. § 552b(c)(6) (emphasis added). The Court found that for Exemption 6, the phrase “personal privacy” defines the “particular subset” of “personnel and medical files and similar files” that FOIA seeks to protect from disclosure. Without that additional language, even “similar files” would be categorically exempted. In addition, the Court noted that while it had not previously addressed the issue of whether Exemption 6 is limited to individuals’ records, it regularly has referred to that exemption as involving an “individual’s right of privacy.” Moreover, Exemption 4 plainly covers corporations as it exempts “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” 5 U.S.C. § 552b(c)(4). When subsequently enacting Exemption 7(C), Congress could have selected an approach similar to that used in Exemption 4 rather than one similar to Exemption 6 if it wanted to protect corporations’ privacy. Finally, the Court noted that since Exemption 7(C)’s enactment in 1974, the Government has been interpreting it to apply to individuals.

The Supreme Court’s decision is limited to FOIA, but the reasoning the Court employs likely means that absent the enactment of a statute that expressly affords corporations privacy rights, it is doubtful corporations will be able to claim statutory rights to privacy under state or federal statutory law. The Court leaves open the possibility of a different result under constitutional law or common law.

Authored by Timothy Tobin