Court: No Privacy Figleaf for Corporate Data

Those troubled by last year's U.S. Supreme Court decision giving corporations the same First Amendment speech rights as individuals in terms of political campaign spending should take some solace in the court's decision last week that corporations have no "personal privacy" rights when it comes to blocking access under the Freedom of Information Act (FOIA) to facts about them acquired by a government agency in a law enforcement investigation.

The result in Federal Communications Commission v. AT&T may not be as inevitable as one might assume.  In California, for example, the courts have still not agreed whether our 39-year-old constitutional right to privacy extends to business entities as well as individuals. And the one case arising under the California Public Records Act's exemption for personally private information that has addressed whether it covers a company's proprietary financial data was resolved against the company only because the information had been expressly relied on by a city in making a franchise rate decision—not because the exemption did not apply in principle.

The high court's FOIA decision might well have gone the other way as well.  After all, it ruled only last year that corporations are entitled to the same First Amendment freedom from pollitical spending limits as flesh-and-blood people.  But in this case Chief Justice John Roberts, writing for the court in an 8-0 decision, looked not to the bestowal of the legal fiction of personhood upon corporations by 19th century acts of Congress, but to the layman's dictionary definition of the adjective "personal" as used in virtually all common expressions.

"'Personal' in the phrase 'personal privacy' conveys more than just 'of a person.'" Roberts observed.  "It suggests a type of privacy evocative of human concerns—not the sort usually associated with an entity like, say, AT&T."  The result meant that that corporation could not plead privacy when a business competitor used the FOIA to ask the FCC by how much AT&T had overstated its entitlement to a federal subsidy—an overstatement that the company admitted having committed.

This does not mean, of course, that companies have no protection from exposure to business rivals or others of information that the government has acquired about them. One entire exemption protects "trade secrets and commercial or financial information obtained from a person and privileged or confidential."  But when as in this case the information was acquired in federal agency's law enforcement investigation of their activities, they cannot expect protection on the grounds of personal privacy.  Meanwhile, however, the actual individuals—corporate officers andor employees—involved as witnesses or otherwise in law enforcement investigations by federal agencies are still protected by the privacy exemption.


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