On March 1, 2011, the Supreme Court ruled in Federal
Communications Commission v. AT&T Inc., Case No. 09-1279, that corporations
do not have "personal privacy" under Exemption 7(C) to the Freedom of
Information Act ("FOIA"). Exemption 7(C) removes from mandatory
disclosure under FOIA law enforcement records the disclosure of which
"could reasonably be expected to constitute an unwarranted invasion of
The court rejected AT&T's argument that the undefined
phrase "personal privacy" incorporates the statutory definition of
"person," which includes corporations. First, the Court noted that
adjectives do not always have the same meaning as their root nouns, so it does
not follow that "personal privacy" should be given the definition of
"person." The Court then employed the standard rule of construction
that undefined terms in a statute should be given their "ordinary"
meaning. According to the Court, "personal" ordinarily refers to
individuals. In fact, according to the Court, "personal" is commonly
used to mean the precise opposite of corporate or business-related (e.g.,
personal life, personal opinion, personal expense).
The Court also looked to the legislative history of FOIA
to support its ruling. When Exemption 7(C) was enacted, two other exemptions
already existed in FOIA -- Exemptions 4 and 6. Exemption 4 uses the word
"person" and protects trade secrets and commercial or financial
information, all of which apply to corporate activity. Exemption 6, however,
uses the phrase "personal privacy" and protects personnel and medical
records. The Court has regularly referred to Exemption 6 as concerning an
individual's right of privacy. The Court found persuasive the fact that
Congress tracked the language of Exemption 6 when drafting Exemption 7(C). The
Court also considered the general understanding among judges and legal scholars
at the time Exemption 7(C) was enacted that the concept of "personal
privacy" did not apply to corporations.
This ruling will continue to require disclosure under
FOIA of corporate documents produced pursuant to Department of Labor
("DOL") investigations. We recommend that employers take all
reasonable steps to protect sensitive information prior to producing documents
to DOL or other government agencies. Such actions should include redacting or
withholding confidential, privileged or trade-secret information or marking
documents as exempt from disclosure under other applicable FOIA exemptions,
such as Exemption 4.
For more information about this case and other labor and
employment law issues please contact Mary Pivec at firstname.lastname@example.org or Manesh Rath at email@example.com.
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