Sep 292010
 September 29, 2010  Business, Court

First they got First Amendment rights. Now they want privacy protections. Next they’ll want the car keys…

I’ve been reading various sites covering the news that the Supreme Court will consider the question of whether corporations have the same privacy rights as people. summarizes the issue before the court in FTC v. AT&T

Whether Exemption 7(C) of the Freedom of Information Act — which exempts from mandatory disclosure records or information compiled for law enforcement purposes when such disclosure could reasonably be expected to constitute an unwarranted invasion of “personal privacy” – protects the “privacy” of corporate entities.

They also provide relevant court filings up to this point.

The notion that corporations could claim an exemption from Freedom of Information compliance on the grounds of “personal privacy” may initially strike you as a real stretch.  Claiming that corporations have “personal privacy” could essentially defeat much of the purpose of the freedom of information law if they are  allowed to withhold the very kinds of records that the public needs to see.  Imagine if BP Oil could successfully claim a personal privacy exemption as justification for not releasing its safety reports and correspondence that predated the disastrous well explosion.   Imagine if Goldman Sachs or other firms could withhold information because it was an invasion of their “personal privacy.”  Every company that faces public embarrassment would/will claim that exemption.

If you read the statute,  though, the term “person” is defined to include corporations.   So if corporations are “persons” under the law, then maybe the Third Circuit got it right in its ruling that corporations have the same “personal privacy rights” under the exemption as individuals do.  Even though it seems like a bit of anthropormorphism to claim that a business entity can feel embarrassed, the language of the statute does seem to provide them with significant support for their argument.  Did Congress err by the way it defined “person” or by the way it worded the exemption?   Probably, based on the comments of the legislators who wrote the exemption, but they can fix that by amending the act.

In the meantime, whether SCOTUS will affirm the Third Circuit’s opinion that corporations do have a right to “personal privacy” remains to be seen.   I wouldn’t be surprised if they rule that corporations do have personal privacy rights under Exemption 7(c) just as individuals do but they will emphasize other parts of that exemption that indicate that information can still be disclosed if the agency determines that any invasion of personal privacy is warranted.   That would allow agencies to disclose records even if a corporation claimed the exemption, but it would certainly delay timely public discovery of important facts.  In some cases,  the costs of litigation may be prohibitive and the public may not find out what it should be able to find out.

The spirit and intent of the law was to favor disclosure, not secrecy.  If a strict construction of the language of the law is not how Congress intended it, then Congress needs to fix this.  Maybe when it takes a break from mud-slinging and grandstanding, they can actually sit down and look constructively at this problem.

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