After last year’s controversial Citizens United v. Federal Election Commission campaign-finance ruling, which treated corporations like people under the First Amendment in lifting restrictions on corporate campaign expenditures, it appeared that the Supreme Court had forever distorted the distinction between the protections afforded to individuals and those afforded to corporations and other entities. Recently, however, the Court has issued two opinions in the context of the Freedom of Information Act (“FOIA”) that appear to reinforce what one would normally think would be an obvious distinction. While narrow in their application, the Court has accomplished this through rulings concerning: (1) the meaning of the term “personal privacy” under FOIA; and (2) FOIA’s exemption for records “related solely to the internal personnel rules and practices of an agency.”
First, the Supreme Court’s March 1st decision in FCC v. AT&T, 09-1279, gave advocates of openness a reason to celebrate. In the Court’s uncharacteristically amusing opinion, it held that when Congress exempted from FOIA requests all records which invade “personal privacy,” it intended to protect the privacy of individuals, not corporations.
The 8-0 decision — Justice Kagan recused herself — rejected AT&T’s invocation of the personal privacy exemption in trying to prevent the release of certain documents it had submitted to the Federal Communications Commission (“FCC”). The FOIA request at issue related to documents produced by AT&T to the FCC pursuant to an investigation of its Education-Rate program. In the course of that investigation, AT&T, a program participant, voluntarily reported to the FCC that it might have overcharged the government for services it provided as part of the program. In response to a FOIA request, the FCC determined that the personal privacy exemption (Exemption 7(C)) applied to individuals identified in AT&T’s submissions, but not to the company itself – determining that corporations do not have “personal privacy” interests (as required by the exemption).
As such, the case came down to how the Supreme Court would interpret the term “personal privacy.” AT&T insisted that the term incorporates the statutory definition of “person” which includes corporations. AT&T’s argument treated the term “personal privacy” as the combination of its two words: the privacy of a person. Therefore, under AT&T’s analysis, the legal meaning of the noun “person” takes on greater significance.
The Supreme Court, however, determined that two words together may assume a more particular meaning than the general definitions they assume when apart. Chief Justice Roberts, writing on behalf of the Court, noted that the word “personal” ordinarily refers to individuals, reasoning that when speaking of “personal characteristics, personal effects, personal correspondence,” etc., people are not usually referring to corporations. As such, “personal” in the phrase “personal privacy” conveys more than just “of a person,’… it suggests a type of privacy evocative of human concerns — not the sort usually associated with an entity like, say, AT&T.” In closing, Justice Roberts quipped: “[t]he 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.”
Thus, in AT&T, the Court – at least for now – correctly declined to further extend the rights of individuals to corporations. Indeed, the extension the FOIA’s personal privacy protections to corporations would deprive the public of a broad range of records and information related to agency investigatory and enforcement efforts currently available. If public records could be shielded from FOIA requests simply because their disclosure would “embarrass” a corporation, as AT&T had argued, the public could be deprived of important information about both a corporation’s wrongdoing and the government’s actions in response to that wrongdoing. The exemptions to FOIA were never intended for that purpose.
Next, on March 7, the Supreme Court struck another blow for government transparency by rejecting a long-held legal interpretation that federal agencies have repeatedly used to withhold records sought through FOIA requests. In Milner v. Department of the Navy, 09-1163, the Court ruled (8-1) that the Navy could not reject a request for data and maps (relating to the potential damage caused by an explosion at a weapons and explosives depot in Puget Sound) based upon FOIA’s exemption for records “related solely to the internal personnel rules and practices of an agency.”
As an initial matter, nobody would deny that the various branches of the armed forces, by their very nature, possess information that must be protected from public exposure. It goes without saying, for example, that disclosing where the Navy stores its surplus ammo could result in catastrophe should someone gain access to the explosives as a result. But Mr. Milner was not requesting information that could be used to compromise the safety or security of the site – he simply wanted to know how far away from the facility he would have to live in order to be safe from a potential explosion. The Navy rejected that request on the grounds that it called for information relating to “personnel rules and practices,” which are exempt from FOIA requests.
Despite the fact that the exemption itself contains no language regarding use of records to frustrate an agency’s work, numerous federal courts had previously held that the exemption extended to “predominantly internal” records where the release “significantly risks circumvention of federal statutes or regulations.” Based upon this language, the exemption was expanded over the years, until it was essentially being interpreted as a catch-all provision.
The Supreme Court put an end to this. Writing for the Court, Justice Elena Kagan said that, without any explicit direction from Congress in the statute, lower courts had transformed an exemption that applies to personnel rules (such as lunch hours, vacation and parking issues) into one preventing the discovery of far more substantive issues.
More specifically, in Milner the government argued that “personnel rules” could be almost any procedure followed by its employees. Justice Kagan soundly rejected that argument, stating: “We would not say, in ordinary parlance, that a ‘personnel file’ is any file an employee uses, or that a ‘personnel department’ is any department in which an employee serves.” Justice Kagan went on to explain that “[t]hese data and maps calculate and visually portray the magnitude of hypothetical detonations. By no stretch of imagination do they relate to ‘personnel rules and practices’…. They concern the physical rules governing explosives, not the workplace rules governing sailors.” In so ruling, the Court effectively struck down the overbroad interpretation of the personnel rules exemption which had been applied by courts for the last 30 years.
The Supreme Court’s decisions in AT&T and Milner are important victories for government transparency. However, the fact that the Court was even debating whether AT&T, a corporation, could claim “personal privacy” shows how dramatically the outlook of the courts has shifted toward the interests of corporations. Only in a post-Citizens United world could AT&T make such an argument before the U.S. Supreme Court with a straight face. Likewise, the fact that the Navy would attempt to argue that the “personnel rules and practices” exemption extends to virtually anything (in any way) connected to its employees demonstrates how far the courts’ application of the FOIA exemptions has strayed from Congress’ original intent. There is no doubt that these two rulings constitute steps in the right direction, but the bulk of the stairway to greater government transparency still lies ahead of us.
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