Reporters Committee urges justices to reconsider corporate privacy

The Reporters Committee for Freedom of the Press joined a friend-of-the-court brief this week asking the U.S. Supreme Court to hear a case that could widely expand the ability of corporations to keep information out of the public eye if it is not overturned.

Nonprofit consumer advocacy group Public Citizen, the Reporters Committee and four other public interest groups filed the brief to explain why not overruling a decision made by the U.S. Court of Appeals in Philadelphia (3rd Cir.) in FCC v. AT&T could undermine the intent of the Freedom of Information Act.

AT&T initiated its suit against the Federal Communications Commission seeking to halt the release of agency records under FOIA detailing an investigation into whether the telecommunications company over billed the government. The federal appeals court ruled last fall that corporate privacy is included in a public-records exemption that allows law enforcement agencies to withhold information that could threaten "personal privacy."

The FCC filed a petition in April asking the Supreme Court to hear its appeal of the Third Circuit opinion which created a vast expansion of the personal privacy exemption.

The FOIA exemption in question has historically allowed law enforcement agencies to withhold information that could cause harm to an individual's personal privacy, but whether this exemption can also be applied to protect corporate privacy rights has not been considered by the Supreme Court.

"The decision below warps the concept of ‘personal privacy’ in FOIA exemption 7 to cover the ’privacy’ interests of corporate entities, including those entities’ potential feelings of ‘embarrassment’ about their own conduct," the brief states.

In 1974, the privacy exemption was amended to clarify that law enforcement records could not be categorically withheld and that the exemption could only be applied in limited circumstances. The amended language stated that privacy-based exemptions were only permissible when disclosure of the record "could reasonably be expected to constitute an unwarranted invasion of personal privacy." The Reporters Committee and its fellow organizations argue in the brief that the Third Circuit's ruling runs counter to the purpose of the amendment, which was to narrow the exception.

"Congress determined that disclosure of investigative records concerning various corporate activities was central to the functioning of FOIA as a disclosure statute and amended exemption 7 specifically to ensure public access to such records," the brief states.

The brief argues that if the lower court's opinion is not overturned, there will be less information about ongoing government investigations that would otherwise be public record, citing examples of ongoing investigations into the British Petroleum oil spill, the fatal mining accident in West Virginia and Goldman Sachs' role in the financial collapse. Agencies could likewise stop publishing information if they fear companies will retaliate by citing the appellate court's corporate privacy exemption.

"For each request, if the Third Circuit’s decision is not reversed, it is possible — even likely — that an agency would be sued by a company seeking to bar disclosure if the agency decides to release records that reflect unfavorable facts about a corporation under investigation, or that the agency would decide not to disclose records to avoid such a lawsuit," the brief explains.