The Freedom of Information Act sets as the default rule that the public has the right to obtain government records, but has a series of exceptions to that rule -- among others, government agencies don't have to disclose classified documents which need to be kept secret in the interest of national defense or foreign policy, those which were compiled for law enforcement purposes and could mess up those processes, and, the key for today's discussion:
(7)(C) records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information could reasonably be expected to constitute an unwarranted invasion of personal privacy
In the early Aughts, the Federal Communications Commission was investigating AT&T following its admission that it may have overcharged the government during its participation in an FCC-administered program created to enhance access for schools and libraries to advanced telecommunications and information services. As part of that investigation -- concluded via consent order in 2004 -- AT&T turned over to the FCC a lot of documents, including responses to interrogatories, invoices, emails with pricing and billing information, names and job descriptions of employees involved, and AT&T’s assessment of whether those employees had violated the company’s code of conduct.
A trade association of AT&T's competitors, CompTel, submitted a FOIA request to the FCC seeking everything AT&T had turned over. The FCC withheld some of it under the trade secret/commercial information exception, and other documents under the above personal privacy exception insofar as the exception pertained to those persons identified in the documents. But AT&T protested, arguing that it, too, was a "person" with privacy rights which could be embarrassed by the release of certain information not otherwise protected from disclosure, and sought further protection of the documents in question. The United States Court of Appeals for the Third Circuit agreed with AT&T, holding that since another part of FOIA defined a "person" to include corporations, Exemption 7(C) extended to the "personal privacy” of corporations, since “the root from which the statutory word [personal] . . . is derived” is the defined term “person.”
The FCC appealed (with then-Solicitor General Elena Kagan on the brief -- hence, recused today), and as Dahlia Lithwick reported, oral argument did not go so well for AT&T:
To AT&T's horror, Justice Scalia jumps in: "Why does that relate to the corporation's privacy interest? Anything that would embarrass the corporation is a privacy interest?" And then Scalia pulls out the long knives: "The word personal," he says, "can indeed apply to corporations sometimes; but there are certain phrases where it certainly does not. For example, you talk about personal characteristics. That doesn't mean the characteristics of General Motors. You talk about personal qualities. It doesn't mean the qualities of General Motors." He asks Klineberg, "Can you give me any examples in common usage where people would refer to the personal privacy of a corporation? It's a very strange phrase to me."
...The chief justice isn't done, either. He takes up AT&T's claim that since "person" is defined elsewhere in FOIA to include corporations, "personal" should be applied to corporations, too. Mulls Roberts: "I tried to sit down and come up with other examples where the adjective was very different from the root noun. It turns out it is not hard at all. You have craft and crafty. Totally different. Crafty doesn't have much to do with craft. Squirrel, squirrely. Right? I mean, pastor—you have a pastor and pastoral. Same root, totally different."
Today, a unanimous Supreme Court held that AT&T does not have "personal privacy" under FOIA
. The Chief Justice wrote for the eight (no concurrences), and it's all about linguistics:
Adjectives typically reflect the meaning of corresponding nouns, but not always. Sometimes they acquire distinct meanings of their own. The noun “crab” refers variously to a crustacean and a type of apple, while the related adjective “crabbed” can refer to handwriting that is “difficult to read,” Webster’s Third New International Dictionary 527 (2002); “corny” can mean “using familiar and stereotyped formulas believed to appeal to the unsophisticated,” which has little to do with “corn,” (“the seeds of any of the cereal grasses used for food”); and while “crank” is “a part of an axis bent at right angles,” “cranky” can mean “given to fretful fussiness."
Even in cases such as these there may well be a link between the noun and the adjective. “Cranky” describes a person with a “wayward” or “capricious” temper, see 3 Oxford English Dictionary 1117 (2d ed. 1989) (OED), which might bear some relation to the distorted or crooked angular shape from which a “crank” takes its name. That is not the point. What is significant is that, in ordinary usage, a noun and its adjective form may have meanings as disparate as any two unrelated words. The FCC’s argument that “personal” does not, in fact, derive from the English word “person,” but instead developed along its own etymological path, simply highlights the shortcomings of AT&T’s proposed rule.
“Person” is a defined term in the statute; “personal” is not. When a statute does not define a term, we typically “give the phrase its ordinary meaning.”
... AT&T’s argument treats the term “personal privacy” as simply the sum of its two words: the privacy of a person. Under that view, the defined meaning of the noun “person,” or the asserted specialized legal meaning, takes on greater significance. But two words together may assume a more particular meaning than those words in isolation. We understand a golden cup to be a cup made of or resembling gold. A golden boy, on the other hand, is one who is charming, lucky, and talented. A golden opportunity is one not to be missed. “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.
And between the "ordinary meaning" and "legal meaning," the Court will apply the latter:
We have no doubt that “person,” in a legal setting, often refers to artificial entities. The Dictionary Act makes that clear. 1 U. S. C. §1 (defining “person” to include “corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals”). But AT&T’s effort to ascribe a corresponding legal meaning to “personal” again elides the difference between “person” and “personal.”
When it comes to the word “personal,” there is little support for the notion that it denotes corporations, even in the legal context. AT&T notes that corporations are “protected by the doctrine of ‘personal’ jurisdiction,” but that phrase refers to jurisdiction in personam, as opposed to in rem, not the jurisdiction “of a person.”
In conclusion, folks, prepare for the rimshot:
We reject the argument that because “person” is defined for purposes of FOIA to include a corporation, the phrase “personal privacy” in Exemption 7(C) reaches corporations as well. The 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.
SCOTUSblog has all the case documents
. What makes this case different from Citizens United is that the former case concerned the First Amendment right to freedom of speech -- a restriction on government action which doesn't refer to "persons" at all in that clause -- whereas today's question regarded the interpretation of an act of Congress which used the word "personal" and which therefore had to be interpreted in context to figure out what Congress meant.
The Court has issued three other opinions this week; the most interesting being Michigan v Bryant, a Confrontation Clause/hearsay case that finds Justices Thomas and Scalia on opposite sides, with Justices Scalia and Ginsburg taking the pro-defendant position to which I imagine many here will be attracted. Jeralyn has the details.