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Does a Corporation Have "Personal Privacy"

by: Michael Krasnow

June 2, 2010 - 01:28 PM

Does a corporation have "personal privacy?"  The FCC didn't think so, but a recent decision by the U.S. Court of Appeals for the Third Circuit, AT&T v. Federal Communications Commission (No. 08-4024), says "yes" -- at least when a corporation tries to block a federal agency from releasing certain records concerning the corporation's potential wrongdoing under the Freedom of Information Act (commonly known as the "FOIA").

The FOIA is a federal law that permits the public to request and obtain copies of records from the United States Government.  In general, the law requires that federal agencies grant such requests and release the requested records unless the records at issue are covered by one or more of FOIA's statutory exemptions.  One of those exemptions, known as Exemption 7(C), protects from mandatory disclosure agency records or information that have been compiled for law enforcement purposes where the public disclosure of the records could reasonably be expected to constitute an unwarranted invasion of "personal privacy."

The Solicitor General, on behalf of the FCC and the United States, has petitioned the U.S. Supreme Court to review the Third Circuit's judgment in the AT&T case, arguing that corporations do not have "personal privacy" under Exemption 7(C). In the filing with the Supreme Court, the Solicitor General argued that "[t]he law ordinarily protects personal privacy to safeguard human dignity and preserve individual autonomy," concepts that "do not comfortably extend to a corporation, which exists only in contemplation of law as an artificial being, invisible [and] intangible."  This "new consideration of corporate personal privacy," the Solicitor General argued, will likely "result in the withholding of agency records to which the public should have access, including records documenting corporate malfeasance."

If the Supreme Court decides to hear the case, it would be briefed, argued, and decided during the Court's next Term, which runs from October 2010 until June 2011.

Updated: April 16, 2012 - 12:07 PM
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