With Elena Kagan’s confirmation hearings scheduled to begin in late June, her recent response as Solicitor General to a Third Circuit decision could provide some insight into her position on privacy matters. Two weeks before President Obama announced her nomination to the Supreme Court, Solicitor General Kagan filed a petition for certiorari with asking the Supreme Court to overturn a Third Circuit decision that gave a corporation “personal privacy” rights under the Freedom Of Information Act. See Petition For a Writ of Certiorari, No. 09-1279 (U.S. April 22, 2010), AT&T Inc. v. Fed. Commc’ns Comm’n, 582 F.3d. 490 (3rd Cir. 2009).
The case stemmed from AT&T’s involvement in 2004 with the federal government’s “E-Rate” program—a federally funded program operated by a consortium of telephone companies, Internet providers, and public officials to connect schools and libraries in poor and rural areas to the Internet. In 2004, AT&T voluntarily disclosed to the FCC that it had overcharged the federal government for work it had done in the New London, Connecticut, school district. The FCC launched an investigation into the matter.
A trade association representing some of AT&T’s competitors then submitted a FOIA request to the FCC to view the complete investigation file. AT&T filed a “reverse” FOIA lawsuit, seeking to prevent the disclosure. AT&T argued to the Third Circuit that the FOIA privacy exception applied because AT&T had “personal privacy” rights, and that the investigative file was exempt from disclosure.
The Third Circuit agreed with AT&T, focusing exclusively on the text of the FOIA. Exemption 7(C) of the FOIA protects law enforcement investigatory documents from disclosure if revealing them would invade “personal privacy.” The FOIA does not define “personal,” but it does define “person” to include an “an individual, partnership, corporation, association, or public or private organization other than an agency.” The Third Circuit found that it “would be very odd indeed for an adjectival form of a defined term not to refer back to that defined term.” 582 F.3d. at 497. The court reasoned it is a “grammatical imperative” that the definition of “person” in the FOIA also defines the term “personal,” and as such encompasses corporations. Id.
In her petition for the U.S., Kagan took a pragmatic approach, arguing that the Third Circuit had adopted an overly legalistic view of the definition of “personal,” one at odds with the ordinary, common sense meaning of “personal privacy.” Pet. at 14-15. Moreover, Kagan’s petition noted, 35 years of case law construing the “personal privacy” exemption had applied the term only to individuals. Id. at 15-22.
Kagan went on to argue that the Third Circuit’s decision, if allowed to stand, would lead to illogical results. Pet. at 24. The definition of “person” includes not only corporations, but also “public . . . organization[s] other than [a federal government] agency.” Id. Thus, under the Third Circuit’s analysis, not only corporations, but foreign, state, and local governments would be “persons” under the FOIA and would have personal privacy rights under Exemption 7(C). Id. at 24.
Kagan’s petition reflected even greater concern about the impact of the Third Circuit’s decision on the federal government’s administration of the FOIA. Id. at 27. Federal agencies that routinely collect information from companies as a result of law enforcement and regulatory investigations will have to wrestle with a new and undefined corporate “personal privacy” interest in determining whether to disclose requested documents—compounding the complexity and cost of FOIA administration. Finally, the petition also expressed concern over the impact of the Third Circuit decision on the public’s right to know—if corporations investigated by the federal government can shield information under the banner of corporate “personal privacy,” the public will lose access to important documents that may show “corporate malfeasance.” Id. at 13, 29.
As Kagan’s confirmation hearings approach, politicians and pundits will attempt with increased fervor to divine meaning from her past writings. While the AT&T petition obviously reflects the views and concerns of the U.S. government, it offers some insight into Kagan’s thoughts on corporate privacy rights and suggests that she is likely to take a pragmatic approach, balancing competing interests in privacy cases.