The Christian Science Monitor
Corporate ‘personal privacy’? Case watched for any hint of Supreme Court bias
By Warren Richey
January 20, 2011

A lawyer for AT&T faces tough questioning at Supreme Court as he argues for ‘personal privacy’ protections for corporations. Critics alleging a pro-business bias in the Roberts court are tuning in.

A lawyer for communications giant AT&T faced an uphill battle on Wednesday while trying to convince the US Supreme Court that “personal privacy” protections in the Freedom of Information Act should be extended to corporations as well as to individuals.

The lawyer, Geoffrey Klineberg, urged the justices to uphold a federal appeals court decision that the release of federal documents under FOIA could harm a corporation through an invasion of “personal privacy.”

But during an hour-long argument session, Mr. Klineberg fielded what seemed an accelerating barrage of skeptical questions from the justices.

“Can you give me any examples in common usage where people would refer to the personal privacy of a corporation,” Justice Antonin Scalia asked.

The law sometimes uses the term person to refer to a corporation, Klineberg said.

“I’m not talking about that,” Scalia replied. “Do you have any examples … from anywhere that anybody refers to the interests of a corporation as the ‘personal privacy’ of General Motors?”

Scalia added: “I cannot imagine somebody using the phrase like that.”

The case, Federal Communications Commission v. AT&T, is being closely watched because some legal analysts view it as a potential indicator of a pro-business slant at the high court under Chief Justice John Roberts.

These critics see the case as a potential companion to last year’s controversial campaign finance decision holding that corporations enjoy free speech rights to spend unlimited amounts of corporate money in independent advertisements during elections.

If corporations have free speech rights, then perhaps the high court will rule they have privacy rights too, these critics said.

By the end of Wednesday’s argument that prospect seemed remote.

“The court today appeared appropriately skeptical of AT&T’s astonishing assertion that it has the same personal privacy rights as individuals,” Doug Kendall, president of the Constitutional Accountability Center, said in a statement.

Probe of alleged overbilling

Wednesday’s Supreme Court case stems from a FOIA request for documents created during an FCC investigation of alleged overbilling by AT&T.

The company disclosed the questionable activities to the government and eventually settled the allegations with no admission of wrongdoing. But a competing trade organization later filed a request under FOIA for all documents in the FCC’s investigative file.

AT&T objected, citing FOIA exemptions that block the release of certain documents. Among the exemptions claimed by AT&T was one that allowed withholding any documents that might cause an invasion of personal privacy if released.

The FCC ruled that the corporation could not claim protection for “personal privacy.” But an appeals court overturned that determination, allowing the exemption.

The question at the high court is whether FOIA allows a corporation to use the personal privacy exemption to block the release of documents in government files.

Assistant Solicitor General Anthony Yang said that when Congress inserted the term “invasion of personal privacy” in FOIA Exemption 7 [c] it was referring to the privacy interests of individuals, not corporations.

When government agencies seek to comply with FOIA requests, Yang said, officials invoke the personal privacy rights of individuals to determine which documents may be released or withheld.

“The government simply processes it and asserts those rights [and] asserts those interests on behalf of individuals,” he said.

Klineberg told the justices the personal privacy exemption should be read broadly to include corporations.

Request for examples

Justice Stephen Breyer asked Klineberg if he’d found any examples in the 35 years since passage of FOIA of a corporation or organization harmed by an invasion of personal privacy?

“We haven’t found anything specific,” the lawyer said.

Yang jumped on that response in the final moments of his argument. “AT&T can provide no example of any problems that have arisen in over 35 years of the government’s consistent administration of this provision,” he said.

“All indications point in simply one direction,” Yang said. “Personal privacy applies only to individuals.”