FOIA is Not a Free Pass to Look At Your Competitor’s E-Mails

By January 19, 2011Briefly Legal

The U.S. Supreme Court this morning is hearing oral arguments in FCC v. AT&T, a case of significant interest to manufacturing because it deals with the business exemptions from disclosures under the Freedom of Information Act.

The National Association of Manufacturers filed an amicus brief (here) in support of AT&T in the case. As our Manufacturing Law Center summary states: An exemption in the Freedom of Information Act (FOIA) applies to 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.” AT&T turned over records to the FCC in connection with an investigation of some bills, and a trade association representing some of its competitors sought all the records. In this suit to prevent the FCC from releasing the records, the Third Circuit held that a corporation is included in the statute’s definition of a “person” and thus has personal privacy interests protected from disclosure by Exemption 7(c) of FOIA. …

The NAM’s amicus brief argues that corporations enjoy easily recognizable privacy interests other than those involving financial or trade secrets, and the government’s investigative powers should not be used to serve private ends, or to cause harm or embarrassment unrelated to proper investigative purposes. Billions of private messages should not become available for public display merely because a business entity is swept up in a government investigation, either as a target, a victim, or a source of information. A wide range of in-house communications, in the hands of a competitor or a third party, including the press or trial lawyers, could be deployed to harm the company, its shareholders and employees. It is improper and abusive for the government’s broad investigative power to be used to serve private ends and cause private injury.</blockquote>At RedState, Joshua Trevino analyzes the case and what’s at stake: “[If] decided wrongly, it has the potential to transform the federal government’s Freedom of Information Act into a powerful anti-business weapon in the hands of the left.”

See also Lyle Deniston at Scotusblog, “Argument preview: Corporate ‘personhood’ — again.”

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