FCC & USA v. AT&T Inc., et al., No. 09-1279 (Supreme Court)
NO. 09-1279
IN THE
FEDERAL COMMUNICATIONS COMMISSION AND
UNITED STATES OF AMERICA,
Petitioners,
v.
AT&T INC. AND COMPTEL,
Respondents.
On Writ of Certiorari to the
United States Court of Appeals for the Third Circuit
ADINA H. ROSENBAUM
MARY C. ALBERT
MICHAEL H. PAGE
Counsel of Record
Public Citizen
COMPTEL
Litigation Group
900 17th Street NW
1600 20th Street NW
Suite 400
Washington, DC 20009
Washington, DC 20006
(202) 588-1000
(202) 296-6650
malbert@comptel.org
Counsel for COMPTEL
January 2011
i
REPLY BRIEF OF COMPTEL. . . . . . . . . . . . . . . . . . . 1
A.
The APA's Definition of "Person" Does Not
Displace the Ordinary Meaning of "Personal
Privacy.". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
B.
AT&T Cites No Authority in Which "Personal
Privacy" Is Used to Refer to Corporate
Interests.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
C.
The Context, Structure, History, and Purposes
of FOIA All Demonstrate That "Personal
Privacy" in Exemption 7(C) Refers Solely to
the Privacy of Individuals.. . . . . . . . . . . . . . . . . . 10
1. Exemption 7(F) and the Privacy Act . . . . . . 11
2. Exemption 6. . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3. Exemption 4. . . . . . . . . . . . . . . . . . . . . . . . . . . 17
4. The Purposes of Exemption 7(C) . . . . . . . . . 18
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
ii
iii
v. Favish, 541 U.S. 157 (2004). . . . . . . . . . . . . . . 13, 14
Bast v. United States Department of Justice,
510 U.S. 135 (1994).. . . . . . . . . . . . . . . . . . . . . . . . . . . 16
665 F.2d 1251 (D.C. Cir. 1981). . . . . . . . . . . . . . . . . . 18
Sims v. CIA,
Davin v. United States Department of Justice,
642 F.2d 562 (D.C. Cir. 1980). . . . . . . . . . . . . . . . . . . 13
60 F.3d 1043 (3d Cir. 1995). . . . . . . . . . . . . . . . . . . . . 18
Sullivan v. Stroop,
Delaware River Stevedores v. DiFidelto,
496 U.S. 478 (1990).. . . . . . . . . . . . . . . . . . . . . . . . . . . 16
440 F.3d 615 (3d Cir. 2006). . . . . . . . . . . . . . . . . . . . . . 2
United States Department of Justice v. Reporters
Department of Air Force v. Rose,
Committee for Freedom of the Press,
425 U.S. 352 (1976).. . . . . . . . . . . . . . . . . . . . . . . . . . . 15
489 U.S. 749 (1989).. . . . . . . . . . . . . . . . . . . . . . . . . 9, 18
FBI v. Abramson,
United States Department of State v. Washington
456 U.S. 615 (1982).. . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Post Co., 456 U.S. 595 (1982). . . . . . . . . . . . . . . . . . . 12
First National Bank of Boston v. Bellotti,
United States v. Martin Linen Supply Co.,
435 U.S. 765 (1978).. . . . . . . . . . . . . . . . . . . . . . . . . . . 10
430 U.S. 564 (1977).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Ivanhoe Citrus Association v. Handley,
United States v. White,
612 F. Supp. 1560 (D.D.C. 1985).. . . . . . . . . . . . . . . . 13
322 U.S. 694 (1944).. . . . . . . . . . . . . . . . . . . . . . . . . 9, 10
Judicial Watch, Inc. v. FDA,
Washington Post Co. v. United States Department of
449 F.3d 141 (D.C. Cir. 2006). . . . . . . . . . . . . . . . 14, 15
Agriculture, 943 F. Supp. 31 (D.D.C. 1996). . . . . . . 13
Multi Ag Media LLC v. Department of Agriculture,
Washington Research Project, Inc. v. Department of
515 F.3d 1224 (D.C. Cir. 2008). . . . . . . . . . . . . . . . . . 12
Health, Education, & Welfare,
366 F. Supp. 929 (D.D.C. 1973). . . . . . . . . . . . . . . . . 14
NLRB v. Robbins Tire & Rubber Co.,
437 U.S. 214 (1978).. . . . . . . . . . . . . . . . . . . . . . . . . . . 16
iv
v
Administrative Procedure Act,
p. 17033 (May 30, 1974). . . . . . . . . . . . . . . . . . 12, 16, 19
5 U.S.C. 551. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
p. 36626 (Nov. 20, 1974). . . . . . . . . . . . . . . . . . . . . . . . 19
5 U.S.C. 551(2).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 6
Black's Law Dictionary (9th ed. 2009).. . . . . . . . . . . . . . . 4
Freedom of Information Act,
5 U.S.C. 552(b)(4). . . . . . . . . . . . . . . . . . . . . . . . . . . 17
H.R. Rep. No. 1497, 89th Cong., 2d Sess. (1966). . . . . . 12
5 U.S.C. 552(b)(6). . . . . . . . . . . . . . . . . . . . . . . . 12, 15
5 U.S.C. 552(b)(7)(F). . . . . . . . . . . . . . . . . . . . . . . . . 3
William L. Prosser, Privacy,
5 U.S.C. 552(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
48 Cal. L. Rev. 383 (1960). . . . . . . . . . . . . . . . . . . . . . . 7
15 U.S.C.
Restatement (Second) of Torts (1977).. . . . . . . . . . . . . . . 9
662(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
696(3)(E)(ii). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
S. Rep. No. 813, 89th Cong., 1st Sess. (1965). . . . . . . . . 15
42 U.S.C.
Daniel J. Solove, A Taxonomy of Privacy,
6291(17). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
154 U. Pa. L. Rev. 477 (2006). . . . . . . . . . . . . . . . . . . . 7
6291(40). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
United States Department of Justice,
Privacy Act of 1974,
Attorney General's Memorandum on the 1974
Pub. L. No. 93-579, 88 Stat. 1896 (1974). . . . . . . . . . 11
Amendments to the Freedom of Information Act
(1975). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
United States Constitution
Amendment IV.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
United States Department of Justice,
Amendment V (Double Jeopardy Clause). . . . . . . . . 8
Attorney General's Memorandum on the Public
Information Section of the Administrative
Procedure Act (1967). . . . . . . . . . . . . . . . . . . . . . . . . . 13
United States Department of Justice, FOIA Update,
Vol. III, No. 4 (May 1982). . . . . . . . . . . . . . . . . . . . . . 13
vi
United States House of Representatives, 103d Cong.,
At issue in this case is the meaning of the term
Committee on Government Reform: A Citizen's
"personal privacy" in Exemption 7(C). Despite AT&T's
Guide on Using the Freedom of Information Act
claims that "common legal usage" demonstrates that
and the Privacy Act of 1974 to Request Government
corporations have "personal privacy" interests, AT&T Br.
Records (May 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . 13
9, AT&T does not cite a single instance outside of this case
in which anyone has ever used the term "personal privacy"
Webster's Third New
to refer to corporate interests in confidentiality.
International Dictionary (1961). . . . . . . . . . . . . 3, 4, 18
Nonetheless, AT&T contends it is "plain" that the term
"personal privacy" in Exemption 7(C) includes corporate
interests. AT&T rests its argument on a supposedly "basic
principle of grammar and usage": that when Congress
provides a technical definition for a noun used in a statute,
it "necessarily," albeit silently, defines any adjective whose
dictionary definition includes "of or pertaining to" that
noun's ordinary meaning. AT&T Br. 14, 16. Not
surprisingly, AT&T can cite no court besides the court
below that has ever applied this supposedly basic
"principle," the adoption of which would unsettle the
meaning of words throughout the U.S. Code, leading to
absurd results.
For over 35 years, it has been well understood that
Exemption 7(C) protects only individual privacy interests.
This interpretation is derived from the meaning of
"personal privacy" and is confirmed by reading Exemption
7(C) in the context of FOIA's other exemptions, which
include a separate exemption for commercial interests in
confidentiality and which only otherwise refer to "personal
privacy" in the context of records such as personnel and
medical files. It is also supported by FOIA's legislative
history and by the purposes of FOIA and Exemption 7(C).
As these tools of statutory interpretation confirm,
2
3
"personal privacy" in Exemption 7(C) does not include
"principle" apparently known by Congress, which, as
corporate interests.
COMPTEL showed in its opening brief, regularly defines
variants of defined terms when it wants the variants to
the Ordinary Meaning of "Personal Privacy."
COMPTEL Br. 16.
COMPTEL demonstrated in its opening brief that the
Moreover, AT&T's rule of grammar does not withstand
ordinary meaning of "personal privacy," as derived from
examination. What AT&T apparently means in saying that
its component words and as reflected in its use by both this
"personal" is the "adjective form" of "person" is that
Court and Congress, includes only the privacy of human
dictionary definitions of "personal" include "[o]f or
beings. See COMPTEL Br. 9-14. In response, AT&T
pertaining to a particular person." AT&T Br. 9 (citing
contends that because "person" is defined in the APA to
Webster's New Int'l Dictionary 1828 (2d ed. 1950)).
include corporations and because "personal" is the
According to AT&T, because some dictionaries define
"adjective form" of person, "personal" "necessarily" also
"personal" as "of or relating to a particular person," and
includes corporations. AT&T Br. 14. Despite AT&T's
because the APA defines "person" to include an
insistence that "the adjective form of a noun draws its
"individual, partnership, corporation, association, or public
meaning from the noun," id. at 16, AT&T is unable to cite
or private organization," 5 U.S.C. 551(2), "personal" in
a single authority or court besides the Third Circuit that
the APA must mean "`of or pertaining to a particular'
has ever stated or applied the "basic principle of grammar
`individual, partnership, corporation, association, or public
and usage," id., that when Congress defines a noun, it
or private organization.'" AT&T Br. 15. But when
automatically defines the "adjective form" of the noun,
Congress defines a word "for the purpose" of a statute, as
such that courts must ignore the adjective's ordinary
it did in the APA, 5 U.S.C. 551, it is defining the word
meaning, statutory context, and all other tools of statutory
whenever it is used in that statute, not whenever it is used
interpretation in interpreting the adjective.1 Nor is this
in a dictionary definition of another word in the statute.2
Likewise, when the dictionary uses the word "person" in
defining "personal," it is using the ordinary meaning of
1Even the concurrence in Delaware River Stevedores v.
DiFidelto, 440 F.3d 615 (3d Cir. 2006), the only source AT&T and
the court below cite for the proposition that "a statute which
defines a noun has thereby defined the adjectival form of that
2For example, FOIA uses the term "individual," see, e.g., 5
noun," id. at 623 (Fisher, J., concurring, and disagreeing on this
U.S.C. 552(b)(7)(F), and dictionary definitions of "individual"
point with the majority, which considered the adjective undefined),
include "a particular person." Webster's Third New Int'l
referred to this proposition not as a rule but as an "inference" and
Dictionary 1152 (1961). But even AT&T agrees that the word
proceeded to find that other factors in that case made the adjective
"individual" in FOIA does not refer back to the APA's definition of
at issue there ambiguous.
"person." AT&T Br. 30-31.
4
5
that word, not the word as it is defined in the APA. Thus,
show that even AT&T recognizes that "personal" does not,
when dictionaries define "personal" as "of or relating to a
in fact, always mean "of or relating to a person" where a
particular person," they are using the ordinary meaning of
statute defines "person" to include corporations. See
"person," which AT&T concedes is a human being. AT&T
generally COMPTEL Br. 11 (citing definitions of
Br. 16.
"personal").
Indeed, as COMPTEL demonstrated in its opening
Moreover, although COMPTEL used "personal
brief (at 17-20), interpreting "personal" solely according to
property" and "personal injury" as examples precisely
the statutory definition of "person" would lead to absurd
because they have well-known meanings, and therefore
results. AT&T attempts to distinguish two examples
clearly demonstrate the absurdity of rigidly interpreting
COMPTEL used--"personal injury" and "personal
"personal" according to a statutory definition of "person,"
property"--by asserting that those phrases are terms of
they were just examples: The ludicrous ramifications of
art in which "personal" is not the "adjective form" of
AT&T's rule extend beyond terms it can dismiss as terms
"person." AT&T Br. 41. But the first definition of
of art, and even beyond phrases that include the word
"personal injury" in the dictionary AT&T cites includes
"personal." For example, AT&T would presumably
"any harm caused to a person." Black's Law Dictionary
consider "commercial" to be the "adjective form" of
857 (9th ed. 2009).3 Thus, if one accepts AT&T's concept of
"commerce"; 42 U.S.C. 6291(17) defines "commerce" for
"adjective forms of nouns," "personal" is being used as the
the purposes of an energy conservation program for
"adjective form" of "person" in "personal injury," relating
consumer products as interstate commerce or commerce
the injury directly to a "person." Accordingly, under
that affects interstate commerce; and the term
AT&T's theory, "personal injury" should include
"commercial refrigerator" is not a term of art.
"corporate injury" in statutes that define "person" to
Nonetheless, it would be absurd to interpret "commercial
include corporations. In any event, AT&T's efforts to
refrigerator" when used in the context of that energy
distinguish "personal injury" and "personal property"
conservation program, id. 6291(40), to mean refrigerators
that affect inter-state commerce. Similarly, AT&T would
presumably consider "licensed" to be the "adjective form"
3AT&T skips the first definition of "personal injury" in Black's
of "license," and 15 U.S.C. 662(7) defines "license" for the
and cites subsequent definitions to state that "`personal injury'
purposes of the small business investment program to be
generally refers to `bodily injury' or `mental suffering.'" AT&T Br.
a certain type of license issued by the Small Business
41. True, but that only shows, as COMPTEL pointed out in its
Administration. Yet it would be nonsensical to interpret
opening brief (at 11), that the term "personal" connects the words
the requirement in 15 U.S.C. 696(3)(E)(ii) that certain
it modifies with particularly human interests. Although AT&T
relies on definitions of "personal injury" that include "bodily
property provided as collateral for a loan have been
injury," it ignores definitions of "personal" that include "bodily."
appraised by a "State licensed or certified appraiser" to
See, e.g., Webster's Third New Int'l Dictionary 1686 (1961).
6
7
mean that the appraiser should have received from a State
about what Congress intended in using the words
a license issued by the Small Business Administration.
"personal privacy" in Exemption 7(C). That corporations
AT&T's new "principle" of statutory interpretation would
are sometimes considered "persons" or that they have
unsettle the meaning of well-understood words throughout
certain constitutional rights does not answer the question
federal statutes and regulations. This Court should reject
whether the term "personal privacy" encompasses
AT&T's invitation to replace existing tools of statutory
corporate interests in confidentiality.
interpretation with a formalistic rule that would have far-
In any event, the constitutional provisions on which
reaching, unreasonable results.
AT&T relies cannot carry the weight that AT&T places on
Br. 21-23. But the word "privacy" is used to describe many
AT&T devotes the largest section of its brief to arguing
different interests. See, e.g., William L. Prosser, Privacy,
that corporations can have "privacy" interests. See AT&T
48 Cal. L. Rev. 383, 389 (1960) (noting that, even just in the
Br. 18-30. The relevant term in Exemption 7(C), however,
context of torts, "[t]he law of privacy comprises four
is not just "privacy." It is "personal privacy." Notably,
distinct kinds of invasion of four different interests of the
despite AT&T's insistence that "[c]ommon legal usage
plaintiff, which are tied together by the common name, but
belies the government's claim that the words `personal
otherwise have almost nothing in common"); Daniel J.
privacy' cannot be used in connection with corporations,"
Solove, A Taxonomy of Privacy, 154 U. Pa. L. Rev. 477,
id. at 9, AT&T does not cite a single instance, either in
477-78 (2006) (noting that privacy suffers from an
legal usage or elsewhere, in which anyone has ever used
"`embarrassment of meanings'" and setting forth a new
the term "personal privacy" to refer to corporate interests
taxonomy of privacy (citation omitted)). The "right to
in confidentiality.
privacy" protected by the Fourth Amendment is connected
Rather than focus on the meaning of the term at issue
to the right to be free from certain governmental
in this case, AT&T takes its reader on a journey into
intrusions onto "persons, houses, papers, and effects." U.S.
concepts of corporate personhood and corporate
Const. Am. IV. That interest is a far cry from the
constitutional rights, touching on the First, Fourth, Fifth,
"personal privacy" interests protected by Exemption 7(C),
and Fourteenth Amendments, including the Due Process
which involve public disclosure of personal information, not
Clause, Equal Protection Clause, and Double Jeopardy
"unreasonable searches and seizures." Id. That, in a
Clause. But this case is not about whether corporations
different context, the word "privacy"--unconnected to the
are "persons"--all parties agree that the APA defines
word "personal" and referring to a different underlying
them to be for FOIA purposes, 5 U.S.C. 551(2)--nor is it
interest--has sometimes been used in connection with
about what constitutional provisions apply to them. It is
corporations does not change the fact that the word
8
9
privacy on its own generally connotes individual interests,
In contrast to the great "weight of . . . authority" it
let alone say anything about the meaning of "personal
finds in the Fourth Amendment and Double Jeopardy
privacy."
Clause, AT&T Br. 25, AT&T dismisses any reference to
the common law, noting that "[t]he question of the
AT&T's discussion of the Double Jeopardy Clause is
statutory meaning of privacy under the FOIA is . . . not the
even further afield. AT&T strenuously argues that
same as the question whether a tort action might lie for
corporations are protected by the Double Jeopardy Clause,
invasion of privacy." U.S. Dep't of Justice v. Reporters
apparently on the theory that if corporations are protected
Comm. for Freedom of the Press, 489 U.S. 749, 762 n.13
by the Double Jeopardy Clause, it would make sense for
(1989). AT&T misses the point. No one is claiming that
them also to be protected by Exemption 7(C) because the
the common law, on its own, conclusively demonstrates the
Double Jeopardy Clause is intended to protect defendants
meaning of "personal privacy" in Exemption 7(C). But the
from embarrassment and Exemption 7(C) is intended to
Restatement's limitation of actions for "invasion of
protect people such as witnesses from embarrassment.
privacy" (except for appropriation of name or likeness) to
AT&T's logic does not hold up. The purpose of the Double
individuals, see Restatement (Second) of Torts 652I
Jeopardy Clause is not primarily to protect defendants
(1977), and its recognition that a corporation "has no
from embarrassment, but to keep the government from
personal right of privacy," id. at Comment C, shed light on
being able to use second trials for the same offense as "a
what Congress intended when it used the term "invasion of
potent instrument of oppression." United States v. Martin
personal privacy" in Exemption 7(C).
Linen Supply Co., 430 U.S. 564, 569 (1977); see also id.
(explaining that Double Jeopardy Clause prohibits the
AT&T also takes issue with the Government's (and by
government from making repeated attempts to convict
implication COMPTEL's) citation to United States v.
defendants, thereby subjecting them to "embarrassment,
White, 322 U.S. 694 (1944), in which this Court stated that
expense and ordeal," "a continuing state of anxiety and
because the privilege against self-incrimination is purely
insecurity," and the enhanced "possibility that even though
personal, it cannot be asserted by a corporation. AT&T
innocent [they] may be found guilty" (citing Green v.
claims that White only meant that a corporate
United States, 355 U.S. 184, 187-88 (1957)). Because the
representative cannot assert the privilege on behalf of the
purpose of the Clause is not simply to prevent
corporation. AT&T Br. 28 n.8. White, however,
embarrassment, whether corporations are covered by it
specifically states that "[t]he constitutional privilege
says nothing about whether corporations can feel
against self-incrimination is essentially a personal one,
embarrassed, let alone about whether Congress intended
applying only to natural individuals." 322 U.S. at 699.
the words "personal privacy" in Exemption 7(C) to apply
"Since the privilege against self-incrimination is a purely
to corporate interests.
personal one, it cannot be utilized by or on behalf of any
organization, such as a corporation." Id. AT&T also argues
10
11
at length that the privilege against compulsory
that "personal privacy" should not be given its ordinary
self-incrimination has changed since White to not cover
meaning in Exemption 7(C) fails.
documents' contents. But that change has not affected the
1. Exemption 7(F) and the Privacy Act. AT&T notes
Court's different treatment of corporations and natural
that both FOIA Exemption 7(F) and the Privacy Act use
people under the privilege. See, e.g., First Nat'l Bank of
the noun "individual" to refer to a human being and argues
Boston v. Bellotti, 435 U.S. 765, 778 n.14 (1978) (noting that
that Congress could have used that word in Exemption
"[c]ertain `purely personal' guarantees, such as the
7(C) as well. AT&T Br. 30. No one questions that because
privilege against compulsory self-incrimination, are
of the APA's definition of "person," the nouns "person" and
unavailable to corporations" (citing White, 322 U.S. at
"individual" have different meanings in both FOIA and the
698-701)). In any event, White is relevant not because this
Privacy Act, with the noun "individual" referring solely to
Court's understanding of the privilege against compulsory
humans and the noun "person" also including corporations
self-incrimination informs the scope of Exemption 7(C), but
and associations. Because Exemption 7(C) does not use
because this Court's understanding of the meaning of
either noun, however, their different meanings are
"personal" informs the scope of the exemption. Although
irrelevant.
this Court's understanding of the privilege might have
changed since White, there is no indication that its
AT&T grasps onto the Privacy Act's use of the term
understanding of "personal" has changed.
"individual privacy" and implies that if Congress had
wanted to limit Exemption 7(C) to human privacy rights,
Traditional tools of statutory construction confirm that
then Congress did not need to use the term "individual
"personal privacy" in Exemption 7(C) refers solely to
privacy" to indicate its intention to cover only human
human interests. The exemption's "personal privacy"
privacy interests because the term it chose to use also only
language was borrowed from and intended to provide the
refers to human privacy interests.
same protections as identical language in Exemption 6,
Indeed, in addition to using the term "individual
which applies only to individuals. FOIA contains a
privacy," the Privacy Act uses the term "personal privacy."
different exemption, Exemption 4, that applies to
Privacy Act of 1974, Pub. L. No. 93-579, 2(B), 88 Stat.
commercial interests in confidentiality. And interpreting
1896. AT&T concedes that when Congress used "personal
"personal privacy" to protect only individuals furthers the
privacy" in the Privacy Act it "intended to address only the
purposes of both FOIA overall and of the amendment that
. . . privacy of individuals." AT&T Br. 32. Given that
added Exemption 7(C) to the statute. AT&T's argument
12
13
Congress used "personal privacy" and "individual privacy"
themselves do not have protected privacy interests under
interchangeably in the Privacy Act, no intent to cover
Exemption 6."); Sims v. CIA, 642 F.2d 562, 573 n.47 (D.C.
corporate interests can be read into Congress's use of
Cir. 1980) ("Exemption 6 is applicable only to
"personal privacy" instead of "individual privacy" in
individuals."); Wash. Post Co. v. U.S. Dep't of Agric., 943
Exemption 7(C).
F. Supp. 31, 37 n.6 (D.D.C. 1996) ("[C]orporations,
businesses and partnerships have no privacy interest
2. Exemption 6. When Congress enacted Exemption
whatsoever under Exemption 6."); Ivanhoe Citrus Ass'n v.
7(C), it borrowed the term "personal privacy" from
Handley, 612 F. Supp. 1560, 1567 (D.D.C. 1985) ("It is
Exemption 6, which applies to "personnel and medical files
well-established . . . that neither corporations nor business
and similar files the disclosure of which would constitute a
associations possess protectible privacy interests [under
clearly unwarranted invasion of personal privacy." 5
Exemption 6]."); see also, e.g., U.S. House of Reps., 103d
U.S.C. 552(b)(6). As Senator Hart, who introduced the
Cong., 1st Sess., Report No. 103-104, First Report by the
amendment that included Exemption 7(C), explained, "[b]y
Committee on Gov't Reform: A Citizen's Guide on Using
adding the protective language here, we simply make clear
the Freedom of Information Act and the Privacy Act of
that the protections in the sixth exemption for personal
1974 to Request Government Records 14 (May 1993)
privacy also apply to disclosure under the seventh
("Corporations and other legal persons have no privacy
exemption." 120 Cong. Rec. 17033 (May 30, 1974)
rights under the sixth exemption."); U.S. Dep't of Justice,
(Statement of Sen. Hart).
FOIA Update, Vol. III, No. 4, at 5 (May 1982) ("It is well
In enacting Exemption 6, Congress sought to
settled that the FOIA's privacy exemptions provide
"`protect[] an individual's right of privacy'. . . by preventing
personal privacy protection and cannot be invoked to
`the disclosure of [information] which might harm the
protect the interests of a corporation or association.").
individual.'" U.S. Dep't of State v. Wash. Post Co., 456 U.S.
In the face of the vast authority recognizing that
595, 601 (1982) (quoting H.R. Rep. No. 1497, 89th Cong., 2d
"personal privacy" in Exemption 6 refers solely to
Sess. 11 (1966)); see also id. at 599 (Exemption 6 "seeks to
individual interests, AT&T devotes pages to a single
protect individuals"); H.R. Rep. No. 1497, at 11 (explaining
source, the Attorney General's 1967 memorandum on
that the exemption was "intended to cover detailed
FOIA, which referred to Exemption 6 as protecting the
Government records on an individual which can be
"privacy of any person" and stated that "person" includes
identified as applying to that individual"). Accordingly,
corporations. U.S. Dep't of Justice, Attorney General's
and consistent with the ordinary, well-understood meaning
Memorandum on the Public Information Section of the
of the term, "personal privacy" in Exemption 6 has long
Administrative Procedure Act 36-37 (1967). Exemption 6,
been recognized as referring solely to individual interests.
of course, does not actually refer to the "privacy of any
See, e.g., Multi Ag Media LLC v. Dep't of Agric., 515 F.3d
person." And although, in National Archives and Records
1224, 1228 (D.C. Cir. 2008) ("It is clear that businesses
14
15
Administration v. Favish, 541 U.S. 157, 169 (2004), the
AT&T insists that if Exemption 6 is limited to
Court noted that "the Attorney General's consistent
individuals, it is not because of the term "personal
interpretation" of Exemption 6 as protecting families
privacy," but "because the exemption applies only to
formed part of the background against which Congress
`personnel and medical files and similar files.'" AT&T Br.
legislated when it enacted Exemption 7(C), id. (emphasis
36 (quoting 5 U.S.C. 552(b)(6)). But corporations, along
added), here, the Attorney General quickly abandoned its
with individuals, can be discussed in personnel, medical, or
initial opinion of how to interpret "personal privacy." See,
similar files. And both Congress and this Court have
e.g., U.S. Dep't of Justice, Attorney General's
connected Exemption 6's protection of individuals to its
Memorandum on the 1974 Amendments to the Freedom of
personal-privacy clause, not just its threshold clause. See,
Information Act 9 (1975) (explaining that "the phrase
e.g., Dep't of Air Force v. Rose, 425 U.S. 352, 372 (1976)
`personal privacy' pertains to the privacy interests of
(explaining that the "device adopted" to balance the
individuals"). In any event, by the time Congress enacted
"individual's right of privacy" against FOIA's goal of
the 1974 amendments, the notion that FOIA's "personal
opening agency action to the light of public scrutiny was
privacy" language might apply to corporate interests had
"the limited exemption, where privacy was threatened, for
been rejected. See Wash. Research Project, Inc. v. Dep't
`clearly unwarranted' invasions of personal privacy"); S.
of Health, Educ., & Welfare, 366 F. Supp. 929 (D.D.C.
Rep. No. 813, 89th Cong., 1st Sess. 9 (1965) ("The phrase
1973), aff'd in part on other grounds, 504 F.2d 238 (D.C.
`clearly unwarranted invasion of personal privacy'
Cir. 1974) (explaining that "the right of privacy envisioned
enunciates a policy that will involve a balancing of interests
in the Act is personal and cannot be claimed by a
between the protection of an individual's private affairs
corporation or association").4
from unnecessary public scrutiny, and the public's right to
governmental information.").
Unable to muster any real support for the notion that
4AT&T also implies that in Judicial Watch, Inc. v. FDA, 449
F.3d 141, 153 (D.C. Cir. 2006), the D.C. Circuit applied Exemption
Exemption 6's "personal privacy" language applies to
6 to corporate interests. But although the redacted information in
corporate interests, AT&T asserts that the term "personal
Judicial Watch included names and addresses of companies that
privacy" in Exemption 7(C) might include interests not
worked on developing mifepristone (RU-486), the reason that
covered by the same term in Exemption 6. AT&T Br. 38.
information was redacted was not to protect the companies'
It is a "normal rule of statutory construction," however,
privacy, but the privacy of the companies' employees. See id.
"that identical words used in different parts of the same act
(explaining that the declarations in the case "describe websites that
encourage readers to look for mifepristone's manufacturing
locations and then kill or kidnap employees" and that the "privacy
interest extends to all . . . employees [associated with
4(...continued)
mifepristone]"). Indeed, the case refers to the interest to be
weighed on the privacy side of the Exemption 6 balance as "`the
(continued...)
individual's right of privacy.'" Id. (citation omitted).
16
17
are intended to have the same meaning." Sullivan v.
structure and legislative history are in no way at odds with
Stroop, 496 U.S. 478, 484 (1990) (internal quotation marks
its text. To the contrary, they confirm what the plain
and citation omitted). "A term appearing in several places
language already makes clear: Exemption 7(C) protects
in a statutory text is generally read the same way each
only individual interests.
time it appears." Ratzlaf v. United States, 510 U.S. 135,
3. Exemption 4. Interpreting FOIA's "personal
143 (1994).
privacy" exemptions in the context of FOIA's other
Moreover, the legislative history shows that Congress
exemptions further confirms that "personal privacy"
intended Exemption 7(C) to protect the same interests as
carries its ordinary meaning in Exemption 7(C). In
Exemption 6. As Senator Hart explained, "the protection
particular, Exemption 4 applies to "trade secrets and
for personal privacy included in [7(C)] . . . is a part of the
commercial or financial information obtained from a person
sixth exemption in the present law." 120 Cong. Rec. 17033
and privileged or confidential." 5 U.S.C. 552(b)(4). This
(May 30, 1974) (Statement of Sen. Hart). "By adding the
exemption, rather than the personal-privacy exemptions,
protection language here, we simply make clear that the
is the means through which Congress chose to protect
protections in the sixth exemption for personal privacy also
business interests in confidentiality.
apply to disclosure under the seventh exemption." Id.5
AT&T points out that Exemption 4 does not apply to
In the end, AT&T falls back on the assertion that it is
records just because their release might cause the public
irrelevant whether Congress intended Exemption 7(C) to
to dislike or distrust a company, AT&T Br. 39-41, and
cover corporations, because the terms of the statute must
argues, therefore, that records the release of which might
be "appl[ied] . . . as written." AT&T Br. 49. But FOIA's
hurt a company's reputation should be exempt under
Exemption 7(C). Just because Exemption 4 does not apply
to all of the records AT&T wants to keep secret, however,
5This Court has repeatedly looked to Senator Hart's
does not mean that some other exemption does. FOIA
statements on the Senate floor in interpreting Exemption 7. See
contains specific, narrow, exclusive exemptions. 5 U.S.C.
FBI v. Abramson, 456 U.S. 615, 628 n.11 (1982); NLRB v. Robbins
552(d). If records fall outside of those exemptions, they
Tire & Rubber Co., 437 U.S. 214, 227-32 (1978). AT&T abridges the
must be disclosed, whether or not AT&T wishes otherwise.
quote above, claiming that Senator Hart "said only that `the
protections in the sixth exemption for personal privacy also apply
Exemption 4 shows that Congress gave thought to which
to disclosure under the seventh exemption,'" AT&T Br. 38
commercial secrecy interests should be protected and
(emphasis added), and that Senator Hart's statement, therefore,
which should not, and there is no indication that Congress
does not show that Exemption 7(C) does not also cover additional
wished to protect corporations from being disliked by
interests. As the full quote above demonstrates, however, Senator
customers or suppliers who learn of their actions.
Hart did not just state that Exemption 6's protections were
Corporate secrecy interests that fall outside of Exemption
included in Exemption 7(C); he also stated that Exemption 7(C)'s
protections were already part of Exemption 6.
18
19
4's protections should not be crammed into an exemption
cannot feel embarrassed. Nor can they feel dishonored, or
designed for different purposes.
undignified, or fear for their physical safety.
4. The Purposes of Exemption 7(C). Exemption 7(C)
Rather than seeking to create an exemption that would
protects the "`individual interest in avoiding disclosure of
permit withholding of law enforcement records that
personal matters'" contained in law enforcement records.
mention corporations, Congress amended Exemption 7 in
Reporters Comm. for Freedom of the Press, 489 U.S. at 762
1974 in part to shed light on government investigations into
(citation omitted); see also, e.g., Davin v. U.S. Dep't of
corporate compliance with the law. Senator Hart explained
Justice, 60 F.3d 1043, 1058 (3d Cir. 1995) (recognizing
that he introduced the amendment out of "fear that such
privacy interests of "`individuals involved in a criminal
information as meat inspection reports, civil rights
investigation'" (citation omitted)); Bast v. U.S. Dep't of
compliance information, and medicare nursing home
Justice, 665 F.2d 1251, 1254 (D.C. Cir. 1981) (balancing the
reports will be considered exempt under the seventh
"individual's interest in personal privacy"). Extending the
exemption." 120 Cong. Rec. 17033 (May 30, 1974)
exemption's protections to corporations would not further
(Statement of Sen. Hart). AT&T downplays this purpose,
this purpose.
noting that even if corporate interests in secrecy are
protected under Exemption 7(C), records will be subject to
AT&T contends that Exemption 7(C) is meant to cover
the exemption's balancing test and therefore might be
the interests of all entities mentioned in law enforcement
released. There is no indication, however, that, in trying
records. But there is no reason to think that, in enacting
to "plug the loophole" that had been "construed by
Exemption 7(C), Congress was concerned about anyone
agencies to preclude access to meat inspection reports,
but individuals mentioned in law enforcement records.
OSHA safety reports, airline safety analyses and reports
Nor is there anything incongruous with Congress being
on medical care in federally supported nursing homes," 120
particularly concerned about people and whether their
Cong. Rec. 36626 (Nov. 20, 1974) (statement of Rep. Reid),
privacy has been invaded. There is a qualitative difference
Congress intended to create a new exemption to cover such
between human privacy concerns and corporate interests
records and to require people seeking such records to have
in confidentiality. For example, notwithstanding AT&T's
to affirmatively explain why the public interest in
claims to the contrary, AT&T Br. 55, embarrassment is not
disclosure outweighs the business's interest in
a synonym for reputational damage; it is the emotion one
confidentiality.
feels when one of a number of things, including
reputational harm, take place. See Webster's Third New
In an attempt to show why an exemption designed to
Int'l Dictionary 739 (1961) (defining "embarrass" as "to
protect people should be extended to cover corporations,
cause to experience a state of self-conscious distress").
AT&T argues that interpreting "personal privacy" to cover
Because they do not experience emotions, corporations
only individuals could "chill voluntary cooperation by
corporations and other organizations in law enforcement"
20
21
and make corporations "less willing" to report wrongdoing.
The judgment below should be reversed.
7(C) had been construed to cover only individual interests.
AT&T does not explain why interpreting the exemption
Respectfully submitted,
the way it has always been interpreted would make
Mary C. Albert
corporations less willing to cooperate with the government
Counsel of Record
than they have been. And the government itself does not
COMPTEL
seem concerned that giving "personal privacy" its ordinary
900 17th St. NW
meaning will in any way interfere with its law enforcement
Suite
400
endeavors.
Washington, DC 20006
Congress chose to protect "personal privacy" in
(202) 296-6650
Exemption 7(C). The ordinary meaning of that term,
malbert@comptel.org
FOIA's structure, its legislative history, and the purposes
of the statute all demonstrate that only individuals have
Adina H. Rosenbaum
protected interests under Exemption 7(C). "Personal
Michael H. Page
privacy" and Exemption 7(C) should not be extended to
Public Citizen Litigation Group
corporate interests.
1600 20th Street NW
Washington, DC 20009
(202) 588-1000
January 2011
IN THE
FEDERAL COMMUNICATIONS COMMISSION AND
UNITED STATES OF AMERICA,
Petitioners,
v.
AT&T INC. AND COMPTEL,
Respondents.
On Writ of Certiorari to the
United States Court of Appeals for the Third Circuit
REPLY BRIEF OF RESPONDENT COMPTEL IN
SUPPORT OF PETITIONERS
ADINA H. ROSENBAUM
MARY C. ALBERT
MICHAEL H. PAGE
Counsel of Record
Public Citizen
COMPTEL
Litigation Group
900 17th Street NW
1600 20th Street NW
Suite 400
Washington, DC 20009
Washington, DC 20006
(202) 588-1000
(202) 296-6650
malbert@comptel.org
Counsel for COMPTEL
January 2011
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . iiREPLY BRIEF OF COMPTEL. . . . . . . . . . . . . . . . . . . 1
A.
The APA's Definition of "Person" Does Not
Displace the Ordinary Meaning of "Personal
Privacy.". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
B.
AT&T Cites No Authority in Which "Personal
Privacy" Is Used to Refer to Corporate
Interests.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
C.
The Context, Structure, History, and Purposes
of FOIA All Demonstrate That "Personal
Privacy" in Exemption 7(C) Refers Solely to
the Privacy of Individuals.. . . . . . . . . . . . . . . . . . 10
1. Exemption 7(F) and the Privacy Act . . . . . . 11
2. Exemption 6. . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3. Exemption 4. . . . . . . . . . . . . . . . . . . . . . . . . . . 17
4. The Purposes of Exemption 7(C) . . . . . . . . . 18
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
ii
iii
TABLE OF AUTHORITIES
National Archives and Records Administrationv. Favish, 541 U.S. 157 (2004). . . . . . . . . . . . . . . 13, 14
CASES
Ratzlaf v. United States,Bast v. United States Department of Justice,
510 U.S. 135 (1994).. . . . . . . . . . . . . . . . . . . . . . . . . . . 16
665 F.2d 1251 (D.C. Cir. 1981). . . . . . . . . . . . . . . . . . 18
Sims v. CIA,
Davin v. United States Department of Justice,
642 F.2d 562 (D.C. Cir. 1980). . . . . . . . . . . . . . . . . . . 13
60 F.3d 1043 (3d Cir. 1995). . . . . . . . . . . . . . . . . . . . . 18
Sullivan v. Stroop,
Delaware River Stevedores v. DiFidelto,
496 U.S. 478 (1990).. . . . . . . . . . . . . . . . . . . . . . . . . . . 16
440 F.3d 615 (3d Cir. 2006). . . . . . . . . . . . . . . . . . . . . . 2
United States Department of Justice v. Reporters
Department of Air Force v. Rose,
Committee for Freedom of the Press,
425 U.S. 352 (1976).. . . . . . . . . . . . . . . . . . . . . . . . . . . 15
489 U.S. 749 (1989).. . . . . . . . . . . . . . . . . . . . . . . . . 9, 18
FBI v. Abramson,
United States Department of State v. Washington
456 U.S. 615 (1982).. . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Post Co., 456 U.S. 595 (1982). . . . . . . . . . . . . . . . . . . 12
First National Bank of Boston v. Bellotti,
United States v. Martin Linen Supply Co.,
435 U.S. 765 (1978).. . . . . . . . . . . . . . . . . . . . . . . . . . . 10
430 U.S. 564 (1977).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Ivanhoe Citrus Association v. Handley,
United States v. White,
612 F. Supp. 1560 (D.D.C. 1985).. . . . . . . . . . . . . . . . 13
322 U.S. 694 (1944).. . . . . . . . . . . . . . . . . . . . . . . . . 9, 10
Judicial Watch, Inc. v. FDA,
Washington Post Co. v. United States Department of
449 F.3d 141 (D.C. Cir. 2006). . . . . . . . . . . . . . . . 14, 15
Agriculture, 943 F. Supp. 31 (D.D.C. 1996). . . . . . . 13
Multi Ag Media LLC v. Department of Agriculture,
Washington Research Project, Inc. v. Department of
515 F.3d 1224 (D.C. Cir. 2008). . . . . . . . . . . . . . . . . . 12
Health, Education, & Welfare,
366 F. Supp. 929 (D.D.C. 1973). . . . . . . . . . . . . . . . . 14
NLRB v. Robbins Tire & Rubber Co.,
437 U.S. 214 (1978).. . . . . . . . . . . . . . . . . . . . . . . . . . . 16
iv
v
CONSTITUTIONAL PROVISIONS, STATUTES,
OTHER AUTHORITIES
AND LAWS
120 Cong. Rec.Administrative Procedure Act,
p. 17033 (May 30, 1974). . . . . . . . . . . . . . . . . . 12, 16, 19
5 U.S.C. 551. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
p. 36626 (Nov. 20, 1974). . . . . . . . . . . . . . . . . . . . . . . . 19
5 U.S.C. 551(2).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 6
Black's Law Dictionary (9th ed. 2009).. . . . . . . . . . . . . . . 4
Freedom of Information Act,
5 U.S.C. 552(b)(4). . . . . . . . . . . . . . . . . . . . . . . . . . . 17
H.R. Rep. No. 1497, 89th Cong., 2d Sess. (1966). . . . . . 12
5 U.S.C. 552(b)(6). . . . . . . . . . . . . . . . . . . . . . . . 12, 15
5 U.S.C. 552(b)(7)(F). . . . . . . . . . . . . . . . . . . . . . . . . 3
William L. Prosser, Privacy,
5 U.S.C. 552(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
48 Cal. L. Rev. 383 (1960). . . . . . . . . . . . . . . . . . . . . . . 7
15 U.S.C.
Restatement (Second) of Torts (1977).. . . . . . . . . . . . . . . 9
662(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
696(3)(E)(ii). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
S. Rep. No. 813, 89th Cong., 1st Sess. (1965). . . . . . . . . 15
42 U.S.C.
Daniel J. Solove, A Taxonomy of Privacy,
6291(17). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
154 U. Pa. L. Rev. 477 (2006). . . . . . . . . . . . . . . . . . . . 7
6291(40). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
United States Department of Justice,
Privacy Act of 1974,
Attorney General's Memorandum on the 1974
Pub. L. No. 93-579, 88 Stat. 1896 (1974). . . . . . . . . . 11
Amendments to the Freedom of Information Act
(1975). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
United States Constitution
Amendment IV.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
United States Department of Justice,
Amendment V (Double Jeopardy Clause). . . . . . . . . 8
Attorney General's Memorandum on the Public
Information Section of the Administrative
Procedure Act (1967). . . . . . . . . . . . . . . . . . . . . . . . . . 13
United States Department of Justice, FOIA Update,
Vol. III, No. 4 (May 1982). . . . . . . . . . . . . . . . . . . . . . 13
vi
United States House of Representatives, 103d Cong.,
REPLY BRIEF OF COMPTEL
1st Sess., Report No. 103-104, First Report by theAt issue in this case is the meaning of the term
Committee on Government Reform: A Citizen's
"personal privacy" in Exemption 7(C). Despite AT&T's
Guide on Using the Freedom of Information Act
claims that "common legal usage" demonstrates that
and the Privacy Act of 1974 to Request Government
corporations have "personal privacy" interests, AT&T Br.
Records (May 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . 13
9, AT&T does not cite a single instance outside of this case
in which anyone has ever used the term "personal privacy"
Webster's Third New
to refer to corporate interests in confidentiality.
International Dictionary (1961). . . . . . . . . . . . . 3, 4, 18
Nonetheless, AT&T contends it is "plain" that the term
"personal privacy" in Exemption 7(C) includes corporate
interests. AT&T rests its argument on a supposedly "basic
principle of grammar and usage": that when Congress
provides a technical definition for a noun used in a statute,
it "necessarily," albeit silently, defines any adjective whose
dictionary definition includes "of or pertaining to" that
noun's ordinary meaning. AT&T Br. 14, 16. Not
surprisingly, AT&T can cite no court besides the court
below that has ever applied this supposedly basic
"principle," the adoption of which would unsettle the
meaning of words throughout the U.S. Code, leading to
absurd results.
For over 35 years, it has been well understood that
Exemption 7(C) protects only individual privacy interests.
This interpretation is derived from the meaning of
"personal privacy" and is confirmed by reading Exemption
7(C) in the context of FOIA's other exemptions, which
include a separate exemption for commercial interests in
confidentiality and which only otherwise refer to "personal
privacy" in the context of records such as personnel and
medical files. It is also supported by FOIA's legislative
history and by the purposes of FOIA and Exemption 7(C).
As these tools of statutory interpretation confirm,
2
3
"personal privacy" in Exemption 7(C) does not include
"principle" apparently known by Congress, which, as
corporate interests.
COMPTEL showed in its opening brief, regularly defines
variants of defined terms when it wants the variants to
A. The APA's Definition of "Person" Does Not Displace
reflect the same meaning as the defined term. Seethe Ordinary Meaning of "Personal Privacy."
COMPTEL Br. 16.
COMPTEL demonstrated in its opening brief that the
Moreover, AT&T's rule of grammar does not withstand
ordinary meaning of "personal privacy," as derived from
examination. What AT&T apparently means in saying that
its component words and as reflected in its use by both this
"personal" is the "adjective form" of "person" is that
Court and Congress, includes only the privacy of human
dictionary definitions of "personal" include "[o]f or
beings. See COMPTEL Br. 9-14. In response, AT&T
pertaining to a particular person." AT&T Br. 9 (citing
contends that because "person" is defined in the APA to
Webster's New Int'l Dictionary 1828 (2d ed. 1950)).
include corporations and because "personal" is the
According to AT&T, because some dictionaries define
"adjective form" of person, "personal" "necessarily" also
"personal" as "of or relating to a particular person," and
includes corporations. AT&T Br. 14. Despite AT&T's
because the APA defines "person" to include an
insistence that "the adjective form of a noun draws its
"individual, partnership, corporation, association, or public
meaning from the noun," id. at 16, AT&T is unable to cite
or private organization," 5 U.S.C. 551(2), "personal" in
a single authority or court besides the Third Circuit that
the APA must mean "`of or pertaining to a particular'
has ever stated or applied the "basic principle of grammar
`individual, partnership, corporation, association, or public
and usage," id., that when Congress defines a noun, it
or private organization.'" AT&T Br. 15. But when
automatically defines the "adjective form" of the noun,
Congress defines a word "for the purpose" of a statute, as
such that courts must ignore the adjective's ordinary
it did in the APA, 5 U.S.C. 551, it is defining the word
meaning, statutory context, and all other tools of statutory
whenever it is used in that statute, not whenever it is used
interpretation in interpreting the adjective.1 Nor is this
in a dictionary definition of another word in the statute.2
Likewise, when the dictionary uses the word "person" in
defining "personal," it is using the ordinary meaning of
1Even the concurrence in Delaware River Stevedores v.
DiFidelto, 440 F.3d 615 (3d Cir. 2006), the only source AT&T and
the court below cite for the proposition that "a statute which
defines a noun has thereby defined the adjectival form of that
2For example, FOIA uses the term "individual," see, e.g., 5
noun," id. at 623 (Fisher, J., concurring, and disagreeing on this
U.S.C. 552(b)(7)(F), and dictionary definitions of "individual"
point with the majority, which considered the adjective undefined),
include "a particular person." Webster's Third New Int'l
referred to this proposition not as a rule but as an "inference" and
Dictionary 1152 (1961). But even AT&T agrees that the word
proceeded to find that other factors in that case made the adjective
"individual" in FOIA does not refer back to the APA's definition of
at issue there ambiguous.
"person." AT&T Br. 30-31.
4
5
that word, not the word as it is defined in the APA. Thus,
show that even AT&T recognizes that "personal" does not,
when dictionaries define "personal" as "of or relating to a
in fact, always mean "of or relating to a person" where a
particular person," they are using the ordinary meaning of
statute defines "person" to include corporations. See
"person," which AT&T concedes is a human being. AT&T
generally COMPTEL Br. 11 (citing definitions of
Br. 16.
"personal").
Indeed, as COMPTEL demonstrated in its opening
Moreover, although COMPTEL used "personal
brief (at 17-20), interpreting "personal" solely according to
property" and "personal injury" as examples precisely
the statutory definition of "person" would lead to absurd
because they have well-known meanings, and therefore
results. AT&T attempts to distinguish two examples
clearly demonstrate the absurdity of rigidly interpreting
COMPTEL used--"personal injury" and "personal
"personal" according to a statutory definition of "person,"
property"--by asserting that those phrases are terms of
they were just examples: The ludicrous ramifications of
art in which "personal" is not the "adjective form" of
AT&T's rule extend beyond terms it can dismiss as terms
"person." AT&T Br. 41. But the first definition of
of art, and even beyond phrases that include the word
"personal injury" in the dictionary AT&T cites includes
"personal." For example, AT&T would presumably
"any harm caused to a person." Black's Law Dictionary
consider "commercial" to be the "adjective form" of
857 (9th ed. 2009).3 Thus, if one accepts AT&T's concept of
"commerce"; 42 U.S.C. 6291(17) defines "commerce" for
"adjective forms of nouns," "personal" is being used as the
the purposes of an energy conservation program for
"adjective form" of "person" in "personal injury," relating
consumer products as interstate commerce or commerce
the injury directly to a "person." Accordingly, under
that affects interstate commerce; and the term
AT&T's theory, "personal injury" should include
"commercial refrigerator" is not a term of art.
"corporate injury" in statutes that define "person" to
Nonetheless, it would be absurd to interpret "commercial
include corporations. In any event, AT&T's efforts to
refrigerator" when used in the context of that energy
distinguish "personal injury" and "personal property"
conservation program, id. 6291(40), to mean refrigerators
that affect inter-state commerce. Similarly, AT&T would
presumably consider "licensed" to be the "adjective form"
3AT&T skips the first definition of "personal injury" in Black's
of "license," and 15 U.S.C. 662(7) defines "license" for the
and cites subsequent definitions to state that "`personal injury'
purposes of the small business investment program to be
generally refers to `bodily injury' or `mental suffering.'" AT&T Br.
a certain type of license issued by the Small Business
41. True, but that only shows, as COMPTEL pointed out in its
Administration. Yet it would be nonsensical to interpret
opening brief (at 11), that the term "personal" connects the words
the requirement in 15 U.S.C. 696(3)(E)(ii) that certain
it modifies with particularly human interests. Although AT&T
relies on definitions of "personal injury" that include "bodily
property provided as collateral for a loan have been
injury," it ignores definitions of "personal" that include "bodily."
appraised by a "State licensed or certified appraiser" to
See, e.g., Webster's Third New Int'l Dictionary 1686 (1961).
6
7
mean that the appraiser should have received from a State
about what Congress intended in using the words
a license issued by the Small Business Administration.
"personal privacy" in Exemption 7(C). That corporations
AT&T's new "principle" of statutory interpretation would
are sometimes considered "persons" or that they have
unsettle the meaning of well-understood words throughout
certain constitutional rights does not answer the question
federal statutes and regulations. This Court should reject
whether the term "personal privacy" encompasses
AT&T's invitation to replace existing tools of statutory
corporate interests in confidentiality.
interpretation with a formalistic rule that would have far-
In any event, the constitutional provisions on which
reaching, unreasonable results.
AT&T relies cannot carry the weight that AT&T places on
B. AT&T Cites No Authority in Which "Personal
them. AT&T devotes pages to discussing "corporatePrivacy" Is Used to Refer to Corporate Interests.
privacy interests under the Fourth Amendment." AT&TBr. 21-23. But the word "privacy" is used to describe many
AT&T devotes the largest section of its brief to arguing
different interests. See, e.g., William L. Prosser, Privacy,
that corporations can have "privacy" interests. See AT&T
48 Cal. L. Rev. 383, 389 (1960) (noting that, even just in the
Br. 18-30. The relevant term in Exemption 7(C), however,
context of torts, "[t]he law of privacy comprises four
is not just "privacy." It is "personal privacy." Notably,
distinct kinds of invasion of four different interests of the
despite AT&T's insistence that "[c]ommon legal usage
plaintiff, which are tied together by the common name, but
belies the government's claim that the words `personal
otherwise have almost nothing in common"); Daniel J.
privacy' cannot be used in connection with corporations,"
Solove, A Taxonomy of Privacy, 154 U. Pa. L. Rev. 477,
id. at 9, AT&T does not cite a single instance, either in
477-78 (2006) (noting that privacy suffers from an
legal usage or elsewhere, in which anyone has ever used
"`embarrassment of meanings'" and setting forth a new
the term "personal privacy" to refer to corporate interests
taxonomy of privacy (citation omitted)). The "right to
in confidentiality.
privacy" protected by the Fourth Amendment is connected
Rather than focus on the meaning of the term at issue
to the right to be free from certain governmental
in this case, AT&T takes its reader on a journey into
intrusions onto "persons, houses, papers, and effects." U.S.
concepts of corporate personhood and corporate
Const. Am. IV. That interest is a far cry from the
constitutional rights, touching on the First, Fourth, Fifth,
"personal privacy" interests protected by Exemption 7(C),
and Fourteenth Amendments, including the Due Process
which involve public disclosure of personal information, not
Clause, Equal Protection Clause, and Double Jeopardy
"unreasonable searches and seizures." Id. That, in a
Clause. But this case is not about whether corporations
different context, the word "privacy"--unconnected to the
are "persons"--all parties agree that the APA defines
word "personal" and referring to a different underlying
them to be for FOIA purposes, 5 U.S.C. 551(2)--nor is it
interest--has sometimes been used in connection with
about what constitutional provisions apply to them. It is
corporations does not change the fact that the word
8
9
privacy on its own generally connotes individual interests,
In contrast to the great "weight of . . . authority" it
let alone say anything about the meaning of "personal
finds in the Fourth Amendment and Double Jeopardy
privacy."
Clause, AT&T Br. 25, AT&T dismisses any reference to
the common law, noting that "[t]he question of the
AT&T's discussion of the Double Jeopardy Clause is
statutory meaning of privacy under the FOIA is . . . not the
even further afield. AT&T strenuously argues that
same as the question whether a tort action might lie for
corporations are protected by the Double Jeopardy Clause,
invasion of privacy." U.S. Dep't of Justice v. Reporters
apparently on the theory that if corporations are protected
Comm. for Freedom of the Press, 489 U.S. 749, 762 n.13
by the Double Jeopardy Clause, it would make sense for
(1989). AT&T misses the point. No one is claiming that
them also to be protected by Exemption 7(C) because the
the common law, on its own, conclusively demonstrates the
Double Jeopardy Clause is intended to protect defendants
meaning of "personal privacy" in Exemption 7(C). But the
from embarrassment and Exemption 7(C) is intended to
Restatement's limitation of actions for "invasion of
protect people such as witnesses from embarrassment.
privacy" (except for appropriation of name or likeness) to
AT&T's logic does not hold up. The purpose of the Double
individuals, see Restatement (Second) of Torts 652I
Jeopardy Clause is not primarily to protect defendants
(1977), and its recognition that a corporation "has no
from embarrassment, but to keep the government from
personal right of privacy," id. at Comment C, shed light on
being able to use second trials for the same offense as "a
what Congress intended when it used the term "invasion of
potent instrument of oppression." United States v. Martin
personal privacy" in Exemption 7(C).
Linen Supply Co., 430 U.S. 564, 569 (1977); see also id.
(explaining that Double Jeopardy Clause prohibits the
AT&T also takes issue with the Government's (and by
government from making repeated attempts to convict
implication COMPTEL's) citation to United States v.
defendants, thereby subjecting them to "embarrassment,
White, 322 U.S. 694 (1944), in which this Court stated that
expense and ordeal," "a continuing state of anxiety and
because the privilege against self-incrimination is purely
insecurity," and the enhanced "possibility that even though
personal, it cannot be asserted by a corporation. AT&T
innocent [they] may be found guilty" (citing Green v.
claims that White only meant that a corporate
United States, 355 U.S. 184, 187-88 (1957)). Because the
representative cannot assert the privilege on behalf of the
purpose of the Clause is not simply to prevent
corporation. AT&T Br. 28 n.8. White, however,
embarrassment, whether corporations are covered by it
specifically states that "[t]he constitutional privilege
says nothing about whether corporations can feel
against self-incrimination is essentially a personal one,
embarrassed, let alone about whether Congress intended
applying only to natural individuals." 322 U.S. at 699.
the words "personal privacy" in Exemption 7(C) to apply
"Since the privilege against self-incrimination is a purely
to corporate interests.
personal one, it cannot be utilized by or on behalf of any
organization, such as a corporation." Id. AT&T also argues
10
11
at length that the privilege against compulsory
that "personal privacy" should not be given its ordinary
self-incrimination has changed since White to not cover
meaning in Exemption 7(C) fails.
documents' contents. But that change has not affected the
1. Exemption 7(F) and the Privacy Act. AT&T notes
Court's different treatment of corporations and natural
that both FOIA Exemption 7(F) and the Privacy Act use
people under the privilege. See, e.g., First Nat'l Bank of
the noun "individual" to refer to a human being and argues
Boston v. Bellotti, 435 U.S. 765, 778 n.14 (1978) (noting that
that Congress could have used that word in Exemption
"[c]ertain `purely personal' guarantees, such as the
7(C) as well. AT&T Br. 30. No one questions that because
privilege against compulsory self-incrimination, are
of the APA's definition of "person," the nouns "person" and
unavailable to corporations" (citing White, 322 U.S. at
"individual" have different meanings in both FOIA and the
698-701)). In any event, White is relevant not because this
Privacy Act, with the noun "individual" referring solely to
Court's understanding of the privilege against compulsory
humans and the noun "person" also including corporations
self-incrimination informs the scope of Exemption 7(C), but
and associations. Because Exemption 7(C) does not use
because this Court's understanding of the meaning of
either noun, however, their different meanings are
"personal" informs the scope of the exemption. Although
irrelevant.
this Court's understanding of the privilege might have
changed since White, there is no indication that its
AT&T grasps onto the Privacy Act's use of the term
understanding of "personal" has changed.
"individual privacy" and implies that if Congress had
wanted to limit Exemption 7(C) to human privacy rights,
C. The Context, Structure, History, and Purposes of
it could have used that term instead. But AT&T'sFOIA All Demonstrate That "Personal Privacy" in
argument assumes that corporations have "personalExemption 7(C) Refers Solely to the Privacy of
privacy" interests. If, as COMPTEL has demonstrated,Individuals.
"personal privacy" includes only human privacy interests,Traditional tools of statutory construction confirm that
then Congress did not need to use the term "individual
"personal privacy" in Exemption 7(C) refers solely to
privacy" to indicate its intention to cover only human
human interests. The exemption's "personal privacy"
privacy interests because the term it chose to use also only
language was borrowed from and intended to provide the
refers to human privacy interests.
same protections as identical language in Exemption 6,
Indeed, in addition to using the term "individual
which applies only to individuals. FOIA contains a
privacy," the Privacy Act uses the term "personal privacy."
different exemption, Exemption 4, that applies to
Privacy Act of 1974, Pub. L. No. 93-579, 2(B), 88 Stat.
commercial interests in confidentiality. And interpreting
1896. AT&T concedes that when Congress used "personal
"personal privacy" to protect only individuals furthers the
privacy" in the Privacy Act it "intended to address only the
purposes of both FOIA overall and of the amendment that
. . . privacy of individuals." AT&T Br. 32. Given that
added Exemption 7(C) to the statute. AT&T's argument
12
13
Congress used "personal privacy" and "individual privacy"
themselves do not have protected privacy interests under
interchangeably in the Privacy Act, no intent to cover
Exemption 6."); Sims v. CIA, 642 F.2d 562, 573 n.47 (D.C.
corporate interests can be read into Congress's use of
Cir. 1980) ("Exemption 6 is applicable only to
"personal privacy" instead of "individual privacy" in
individuals."); Wash. Post Co. v. U.S. Dep't of Agric., 943
Exemption 7(C).
F. Supp. 31, 37 n.6 (D.D.C. 1996) ("[C]orporations,
businesses and partnerships have no privacy interest
2. Exemption 6. When Congress enacted Exemption
whatsoever under Exemption 6."); Ivanhoe Citrus Ass'n v.
7(C), it borrowed the term "personal privacy" from
Handley, 612 F. Supp. 1560, 1567 (D.D.C. 1985) ("It is
Exemption 6, which applies to "personnel and medical files
well-established . . . that neither corporations nor business
and similar files the disclosure of which would constitute a
associations possess protectible privacy interests [under
clearly unwarranted invasion of personal privacy." 5
Exemption 6]."); see also, e.g., U.S. House of Reps., 103d
U.S.C. 552(b)(6). As Senator Hart, who introduced the
Cong., 1st Sess., Report No. 103-104, First Report by the
amendment that included Exemption 7(C), explained, "[b]y
Committee on Gov't Reform: A Citizen's Guide on Using
adding the protective language here, we simply make clear
the Freedom of Information Act and the Privacy Act of
that the protections in the sixth exemption for personal
1974 to Request Government Records 14 (May 1993)
privacy also apply to disclosure under the seventh
("Corporations and other legal persons have no privacy
exemption." 120 Cong. Rec. 17033 (May 30, 1974)
rights under the sixth exemption."); U.S. Dep't of Justice,
(Statement of Sen. Hart).
FOIA Update, Vol. III, No. 4, at 5 (May 1982) ("It is well
In enacting Exemption 6, Congress sought to
settled that the FOIA's privacy exemptions provide
"`protect[] an individual's right of privacy'. . . by preventing
personal privacy protection and cannot be invoked to
`the disclosure of [information] which might harm the
protect the interests of a corporation or association.").
individual.'" U.S. Dep't of State v. Wash. Post Co., 456 U.S.
In the face of the vast authority recognizing that
595, 601 (1982) (quoting H.R. Rep. No. 1497, 89th Cong., 2d
"personal privacy" in Exemption 6 refers solely to
Sess. 11 (1966)); see also id. at 599 (Exemption 6 "seeks to
individual interests, AT&T devotes pages to a single
protect individuals"); H.R. Rep. No. 1497, at 11 (explaining
source, the Attorney General's 1967 memorandum on
that the exemption was "intended to cover detailed
FOIA, which referred to Exemption 6 as protecting the
Government records on an individual which can be
"privacy of any person" and stated that "person" includes
identified as applying to that individual"). Accordingly,
corporations. U.S. Dep't of Justice, Attorney General's
and consistent with the ordinary, well-understood meaning
Memorandum on the Public Information Section of the
of the term, "personal privacy" in Exemption 6 has long
Administrative Procedure Act 36-37 (1967). Exemption 6,
been recognized as referring solely to individual interests.
of course, does not actually refer to the "privacy of any
See, e.g., Multi Ag Media LLC v. Dep't of Agric., 515 F.3d
person." And although, in National Archives and Records
1224, 1228 (D.C. Cir. 2008) ("It is clear that businesses
14
15
Administration v. Favish, 541 U.S. 157, 169 (2004), the
AT&T insists that if Exemption 6 is limited to
Court noted that "the Attorney General's consistent
individuals, it is not because of the term "personal
interpretation" of Exemption 6 as protecting families
privacy," but "because the exemption applies only to
formed part of the background against which Congress
`personnel and medical files and similar files.'" AT&T Br.
legislated when it enacted Exemption 7(C), id. (emphasis
36 (quoting 5 U.S.C. 552(b)(6)). But corporations, along
added), here, the Attorney General quickly abandoned its
with individuals, can be discussed in personnel, medical, or
initial opinion of how to interpret "personal privacy." See,
similar files. And both Congress and this Court have
e.g., U.S. Dep't of Justice, Attorney General's
connected Exemption 6's protection of individuals to its
Memorandum on the 1974 Amendments to the Freedom of
personal-privacy clause, not just its threshold clause. See,
Information Act 9 (1975) (explaining that "the phrase
e.g., Dep't of Air Force v. Rose, 425 U.S. 352, 372 (1976)
`personal privacy' pertains to the privacy interests of
(explaining that the "device adopted" to balance the
individuals"). In any event, by the time Congress enacted
"individual's right of privacy" against FOIA's goal of
the 1974 amendments, the notion that FOIA's "personal
opening agency action to the light of public scrutiny was
privacy" language might apply to corporate interests had
"the limited exemption, where privacy was threatened, for
been rejected. See Wash. Research Project, Inc. v. Dep't
`clearly unwarranted' invasions of personal privacy"); S.
of Health, Educ., & Welfare, 366 F. Supp. 929 (D.D.C.
Rep. No. 813, 89th Cong., 1st Sess. 9 (1965) ("The phrase
1973), aff'd in part on other grounds, 504 F.2d 238 (D.C.
`clearly unwarranted invasion of personal privacy'
Cir. 1974) (explaining that "the right of privacy envisioned
enunciates a policy that will involve a balancing of interests
in the Act is personal and cannot be claimed by a
between the protection of an individual's private affairs
corporation or association").4
from unnecessary public scrutiny, and the public's right to
governmental information.").
Unable to muster any real support for the notion that
4AT&T also implies that in Judicial Watch, Inc. v. FDA, 449
F.3d 141, 153 (D.C. Cir. 2006), the D.C. Circuit applied Exemption
Exemption 6's "personal privacy" language applies to
6 to corporate interests. But although the redacted information in
corporate interests, AT&T asserts that the term "personal
Judicial Watch included names and addresses of companies that
privacy" in Exemption 7(C) might include interests not
worked on developing mifepristone (RU-486), the reason that
covered by the same term in Exemption 6. AT&T Br. 38.
information was redacted was not to protect the companies'
It is a "normal rule of statutory construction," however,
privacy, but the privacy of the companies' employees. See id.
"that identical words used in different parts of the same act
(explaining that the declarations in the case "describe websites that
encourage readers to look for mifepristone's manufacturing
locations and then kill or kidnap employees" and that the "privacy
interest extends to all . . . employees [associated with
4(...continued)
mifepristone]"). Indeed, the case refers to the interest to be
weighed on the privacy side of the Exemption 6 balance as "`the
(continued...)
individual's right of privacy.'" Id. (citation omitted).
16
17
are intended to have the same meaning." Sullivan v.
structure and legislative history are in no way at odds with
Stroop, 496 U.S. 478, 484 (1990) (internal quotation marks
its text. To the contrary, they confirm what the plain
and citation omitted). "A term appearing in several places
language already makes clear: Exemption 7(C) protects
in a statutory text is generally read the same way each
only individual interests.
time it appears." Ratzlaf v. United States, 510 U.S. 135,
3. Exemption 4. Interpreting FOIA's "personal
143 (1994).
privacy" exemptions in the context of FOIA's other
Moreover, the legislative history shows that Congress
exemptions further confirms that "personal privacy"
intended Exemption 7(C) to protect the same interests as
carries its ordinary meaning in Exemption 7(C). In
Exemption 6. As Senator Hart explained, "the protection
particular, Exemption 4 applies to "trade secrets and
for personal privacy included in [7(C)] . . . is a part of the
commercial or financial information obtained from a person
sixth exemption in the present law." 120 Cong. Rec. 17033
and privileged or confidential." 5 U.S.C. 552(b)(4). This
(May 30, 1974) (Statement of Sen. Hart). "By adding the
exemption, rather than the personal-privacy exemptions,
protection language here, we simply make clear that the
is the means through which Congress chose to protect
protections in the sixth exemption for personal privacy also
business interests in confidentiality.
apply to disclosure under the seventh exemption." Id.5
AT&T points out that Exemption 4 does not apply to
In the end, AT&T falls back on the assertion that it is
records just because their release might cause the public
irrelevant whether Congress intended Exemption 7(C) to
to dislike or distrust a company, AT&T Br. 39-41, and
cover corporations, because the terms of the statute must
argues, therefore, that records the release of which might
be "appl[ied] . . . as written." AT&T Br. 49. But FOIA's
hurt a company's reputation should be exempt under
Exemption 7(C). Just because Exemption 4 does not apply
to all of the records AT&T wants to keep secret, however,
5This Court has repeatedly looked to Senator Hart's
does not mean that some other exemption does. FOIA
statements on the Senate floor in interpreting Exemption 7. See
contains specific, narrow, exclusive exemptions. 5 U.S.C.
FBI v. Abramson, 456 U.S. 615, 628 n.11 (1982); NLRB v. Robbins
552(d). If records fall outside of those exemptions, they
Tire & Rubber Co., 437 U.S. 214, 227-32 (1978). AT&T abridges the
must be disclosed, whether or not AT&T wishes otherwise.
quote above, claiming that Senator Hart "said only that `the
protections in the sixth exemption for personal privacy also apply
Exemption 4 shows that Congress gave thought to which
to disclosure under the seventh exemption,'" AT&T Br. 38
commercial secrecy interests should be protected and
(emphasis added), and that Senator Hart's statement, therefore,
which should not, and there is no indication that Congress
does not show that Exemption 7(C) does not also cover additional
wished to protect corporations from being disliked by
interests. As the full quote above demonstrates, however, Senator
customers or suppliers who learn of their actions.
Hart did not just state that Exemption 6's protections were
Corporate secrecy interests that fall outside of Exemption
included in Exemption 7(C); he also stated that Exemption 7(C)'s
protections were already part of Exemption 6.
18
19
4's protections should not be crammed into an exemption
cannot feel embarrassed. Nor can they feel dishonored, or
designed for different purposes.
undignified, or fear for their physical safety.
4. The Purposes of Exemption 7(C). Exemption 7(C)
Rather than seeking to create an exemption that would
protects the "`individual interest in avoiding disclosure of
permit withholding of law enforcement records that
personal matters'" contained in law enforcement records.
mention corporations, Congress amended Exemption 7 in
Reporters Comm. for Freedom of the Press, 489 U.S. at 762
1974 in part to shed light on government investigations into
(citation omitted); see also, e.g., Davin v. U.S. Dep't of
corporate compliance with the law. Senator Hart explained
Justice, 60 F.3d 1043, 1058 (3d Cir. 1995) (recognizing
that he introduced the amendment out of "fear that such
privacy interests of "`individuals involved in a criminal
information as meat inspection reports, civil rights
investigation'" (citation omitted)); Bast v. U.S. Dep't of
compliance information, and medicare nursing home
Justice, 665 F.2d 1251, 1254 (D.C. Cir. 1981) (balancing the
reports will be considered exempt under the seventh
"individual's interest in personal privacy"). Extending the
exemption." 120 Cong. Rec. 17033 (May 30, 1974)
exemption's protections to corporations would not further
(Statement of Sen. Hart). AT&T downplays this purpose,
this purpose.
noting that even if corporate interests in secrecy are
protected under Exemption 7(C), records will be subject to
AT&T contends that Exemption 7(C) is meant to cover
the exemption's balancing test and therefore might be
the interests of all entities mentioned in law enforcement
released. There is no indication, however, that, in trying
records. But there is no reason to think that, in enacting
to "plug the loophole" that had been "construed by
Exemption 7(C), Congress was concerned about anyone
agencies to preclude access to meat inspection reports,
but individuals mentioned in law enforcement records.
OSHA safety reports, airline safety analyses and reports
Nor is there anything incongruous with Congress being
on medical care in federally supported nursing homes," 120
particularly concerned about people and whether their
Cong. Rec. 36626 (Nov. 20, 1974) (statement of Rep. Reid),
privacy has been invaded. There is a qualitative difference
Congress intended to create a new exemption to cover such
between human privacy concerns and corporate interests
records and to require people seeking such records to have
in confidentiality. For example, notwithstanding AT&T's
to affirmatively explain why the public interest in
claims to the contrary, AT&T Br. 55, embarrassment is not
disclosure outweighs the business's interest in
a synonym for reputational damage; it is the emotion one
confidentiality.
feels when one of a number of things, including
reputational harm, take place. See Webster's Third New
In an attempt to show why an exemption designed to
Int'l Dictionary 739 (1961) (defining "embarrass" as "to
protect people should be extended to cover corporations,
cause to experience a state of self-conscious distress").
AT&T argues that interpreting "personal privacy" to cover
Because they do not experience emotions, corporations
only individuals could "chill voluntary cooperation by
corporations and other organizations in law enforcement"
20
21
and make corporations "less willing" to report wrongdoing.
CONCLUSION
AT&T Br. 43. But, until the decision below, ExemptionThe judgment below should be reversed.
7(C) had been construed to cover only individual interests.
AT&T does not explain why interpreting the exemption
Respectfully submitted,
the way it has always been interpreted would make
Mary C. Albert
corporations less willing to cooperate with the government
Counsel of Record
than they have been. And the government itself does not
COMPTEL
seem concerned that giving "personal privacy" its ordinary
900 17th St. NW
meaning will in any way interfere with its law enforcement
Suite
400
endeavors.
Washington, DC 20006
Congress chose to protect "personal privacy" in
(202) 296-6650
Exemption 7(C). The ordinary meaning of that term,
malbert@comptel.org
FOIA's structure, its legislative history, and the purposes
of the statute all demonstrate that only individuals have
Adina H. Rosenbaum
protected interests under Exemption 7(C). "Personal
Michael H. Page
privacy" and Exemption 7(C) should not be extended to
Public Citizen Litigation Group
corporate interests.
1600 20th Street NW
Washington, DC 20009
(202) 588-1000
January 2011
Note: We are currently transitioning our documents into web compatible formats for easier reading. We have done our best to supply this content to you in a presentable form, but there may be some formatting issues while we improve the technology. The original version of the document is available as a PDF, Word Document, or as plain text.
