FCC v. AT&T

OPINION OF THE COURT
FCC V. AT&T INC.
562 U. S. ____ (2011)

SUPREME COURT OF THE UNITED STATES
NO. 09-1279

FEDERAL COMMUNICATIONS COMMISSION, et al., PETITIONERS v. AT&T INC. et al.

on writ of certiorari to the united states court of appeals for the third circuit

[March 1, 2011]

   Chief Justice Roberts delivered the opinion of the Court.

   The Freedom of Information Act requires federal agencies to make records and documents publicly available upon request, unless they fall within one of several statutory exemptions. One of those exemptions covers law enforcement records, the disclosure of which “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U. S. C. §552(b)(7)(C). The question presented is whether corporations have “personal privacy” for the purposes of this exemption.

I

   The Freedom of Information Act request at issue in this case relates to an investigation of respondent AT&T Inc., conducted by the Federal Communications Commission. AT&T participated in an FCC-administered program—the E-Rate (or Education-Rate) program—that was created to enhance access for schools and libraries to advanced telecommunications and information services. In August 2004, AT&T voluntarily reported to the FCC that it might have overcharged the Government for services it provided as part of the program.

   The FCC’s Enforcement Bureau launched an investigation. As part of that investigation, AT&T provided the Bureau various documents, including responses to interrogatories, invoices, emails with pricing and billing information, names and job descriptions of employees involved, and AT&T’s assessment of whether those employees had violated the company’s code of conduct. 582 F. 3d 490, 492–493 (CA3 2009). The FCC and AT&T resolved the matter in December 2004 through a consent decree in which AT&T—without conceding liability—agreed to pay the Government $500,000 and to institute a plan to ensure compliance with the program. See 19 FCC Rcd. 24014, 24016–24019.

   Several months later, CompTel—“a trade association representing some of AT&T’s competitors”—submitted a FOIA request seeking “ ‘[a]ll pleadings and correspondence’ ” in the Bureau’s file on the AT&T investigation. 582 F. 3d, at 493. AT&T opposed CompTel’s request, and the Bureau issued a letter-ruling in response.

   The Bureau concluded that some of the information AT&T had provided (including cost and pricing data, billing-related information, and identifying information about staff, contractors, and customer representatives) should be protected from disclosure under FOIA Exemption 4, which relates to “trade secrets and commercial or financial information,” 5 U. S. C. §552(b)(4). App. to Pet. for Cert. 40a–41a. The Bureau also decided to withhold other information under FOIA Exemption 7(C). Exemption 7(C) exempts “records or information compiled for law enforcement purposes” that “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” §552(b)(7)(C). The Bureau concluded that “individuals identified in [AT&T’s] submissions” have “privacy rights” that warrant protection under Exemption 7(C). Id., at 43a. The Bureau did not, however, apply that exemption to the corporation itself, reasoning that “businesses do not possess ‘personal privacy’ interests as required” by the exemption. Id., at 42a–43a.

   On review the FCC agreed with the Bureau. The Commission found AT&T’s position that it is “a ‘private corporate citizen’ with personal privacy rights that should be protected from disclosure that would ‘embarrass’ it … within the meaning of Exemption 7(C) … at odds with established [FCC] and judicial precedent.” 23 FCC Rcd. 13704, 13707 (2008). It therefore concluded that “Exemption 7(C) has no applicability to corporations such as [AT&T].” Id., at 13710.

   AT&T sought review in the Court of Appeals for the Third Circuit, and that court rejected the FCC’s reasoning. Noting that Congress had defined the word “person” to include corporations as well as individuals, 5 U. S. C. §551(2), the court held that Exemption 7(C) extends to the “personal privacy” of corporations, since “the root from which the statutory word [personal] … is derived” is the defined term “person.” 582 F. 3d, at 497. As the court explained, “[i]t would be very odd indeed for an adjectival form of a defined term not to refer back to that defined term.” Ibid. The court accordingly ruled “that FOIA’s text unambiguously indicates that a corporation may have a ‘personal privacy’ interest within the meaning of Exemption 7(C).” Id., at 498.

   The FCC petitioned this Court for review of the Third Circuit’s decision and CompTel filed as a respondent supporting petitioners. We granted certiorari, 561 U. S. ___ (2010), and now reverse.

II

   Like the Court of Appeals below, AT&T relies on the argument that the word “personal” in Exemption 7(C) incorporates the statutory definition of the word “person.” See Brief for Respondent AT&T 8–9, 14–15 (AT&T Brief); 582 F. 3d, at 497. The Administrative Procedure Act defines “person” to include “an individual, partnership, corporation, association, or public or private organization other than an agency.” 5 U. S. C. §551(2). Because that definition applies here, the argument goes, “personal” must mean relating to those “person[s]”: namely, corporations and other entities as well as individuals. This reading, we are told, is dictated by a “basic principle of grammar and usage.” AT&T Brief 8; see id., at 14–15; see also 582 F. 3d, at 497 (citing Delaware River Stevedores v. DiFidelto, 440 F. 3d 615, 623 (CA3 2006) (Fisher, J., concurring), for “[t]he grammatical imperativ[e]” that “a statute which defines a noun has thereby defined the adjectival form of that noun”). According to AT&T, “[b]y expressly defining the noun ‘person’ to include corporations, Congress necessarily defined the adjective form of that noun—‘personal’—also to include corporations.” AT&T Brief 14 (emphasis added).

   We disagree. Adjectives typically reflect the meaning of corresponding nouns, but not always. Sometimes they acquire distinct meanings of their own. The noun “crab” refers variously to a crustacean and a type of apple, while the related adjective “crabbed” can refer to handwriting that is “difficult to read,” Webster’s Third New International Dictionary 527 (2002); “corny” can mean “using familiar and stereotyped formulas believed to appeal to the unsophisticated,” id., at 509, which has little to do with “corn,” id., at 507 (“the seeds of any of the cereal grasses used for food”); and while “crank” is “a part of an axis bent at right angles,” “cranky” can mean “given to fretful fussiness,” id., at 530.

   Even in cases such as these there may well be a link between the noun and the adjective. “Cranky” describes a person with a “wayward” or “capricious” temper, see 3 Oxford English Dictionary 1117 (2d ed. 1989) (OED), which might bear some relation to the distorted or crooked angular shape from which a “crank” takes its name. That is not the point. What is significant is that, in ordinary usage, a noun and its adjective form may have meanings as disparate as any two unrelated words. The FCC’s argument that “personal” does not, in fact, derive from the English word “person,” but instead developed along its own etymological path, Reply Brief for Petitioners 6, simply highlights the shortcomings of AT&T’s proposed rule.

   “Person” is a defined term in the statute; “personal” is not. When a statute does not define a term, we typically “give the phrase its ordinary meaning.” Johnson v. United States, 559 U. S. ___, ___ (2010) (slip op., at 4). “Personal” ordinarily refers to individuals. We do not usually speak of personal characteristics, personal effects, personal correspondence, personal influence, or personal tragedy as referring to corporations or other artificial entities. This is not to say that corporations do not have correspondence, influence, or tragedies of their own, only that we do not use the word “personal” to describe them.

   Certainly, if the chief executive officer of a corporation approached the chief financial officer and said, “I have something personal to tell you,” we would not assume the CEO was about to discuss company business. Responding to a request for information, an individual might say, “that’s personal.” A company spokesman, when asked for information about the company, would not. In fact, we often use the word “personal” to mean precisely the opposite of business-related: We speak of personal expenses and business expenses, personal life and work life, personal opinion and a company’s view.

   Dictionaries also suggest that “personal” does not ordinarily relate to artificial “persons” such as corporations. See, e.g., 7 OED 726 (1933) (“[1] [o]f, pertaining to … the individual person or self,” “individual; private; one’s own,” “[3] [o]f or pertaining to one’s person, body, or figure,” “[5] [o]f, pertaining to, or characteristic of a person or self-conscious being, as opposed to a thing or abstraction”); 11 OED at 599–600 (2d ed. 1989) (same); Webster’s Third New International Dictionary 1686 (1976) (“[3] relating to the person or body”; “[4] relating to an individual, his character, conduct, motives, or private affairs”; “[5] relating to or characteristic of human beings as distinct from things”); ibid. (2002) (same).

   AT&T dismisses these definitions, correctly noting that “personal”—at its most basic level—simply means “[o]f or pertaining to a particular person.” Webster’s New International Dictionary 1828 (2d ed. 1954). The company acknowledges that “in non-legal usage, where a ‘person’ is a human being, it is entirely unsurprising that the word ‘personal’ is used to refer to human beings.” AT&T Brief 8. But in a watered-down version of the “grammatical imperative” argument, AT&T contends that “person”—in common legal usage—is understood to include a corporation. “Personal” in the same context therefore can and should have the same scope, especially here in light of the statutory definition. See id., at 8–9, 16.

   The construction of statutory language often turns on context, see, e.g., Johnson, supra, at ___ (slip op., at 5), which certainly may include the definitions of related words. But here the context to which AT&T points does not dissuade us from the ordinary meaning of “personal.” We have no doubt that “person,” in a legal setting, often refers to artificial entities. The Dictionary Act makes that clear. 1 U. S. C. §1 (defining “person” to include “corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals”). But AT&T’s effort to ascribe a corresponding legal meaning to “personal” again elides the difference between “person” and “personal.”

   When it comes to the word “personal,” there is little support for the notion that it denotes corporations, even in the legal context. AT&T notes that corporations are “protected by the doctrine of ‘personal’ jurisdiction,” AT&T Brief 19, but that phrase refers to jurisdiction in personam, as opposed to in rem, not the jurisdiction “of a person.” The only other example AT&T cites is an 1896 case that referred to the “ ‘personal privilege’ ” of a corporation. Ibid. (quoting Mercantile Bank v. Tennessee ex rel. Memphis, 161 U. S. 161, 171 (1896) (emphasis deleted)). These examples fall far short of establishing that “personal” here has a legal meaning apart from its ordinary one, even if “person” does. Cf. Merck & Co. v. Reynolds, 559 U. S. ___, ___–___ (2010) (slip op., at 8–10) (noting that “ ‘discovery’ is often used as a term of art in connection with the ‘discovery rule’ ” and describing the judicial and legislative codification of that meaning over time); Molzof v. United States, 502 U. S. 301, 306 (1992) (“ ‘Punitive damages’ is a legal term of art that has a widely accepted common-law meaning … this Court’s decisions make clear that the concept … has a long pedigree in the law”).

   Regardless of whether “personal” can carry a special meaning in legal usage, “when interpreting a statute … we construe language … in light of the terms surrounding it.” Leocal v. Ashcroft, 543 U. S. 1, 9 (2004). Exemption 7(C) refers not just to the word “personal,” but to the term “personal privacy.” §552(b)(7)(C); cf. Textron Lycoming Reciprocating Engine Div., AVCO Corp. v. Automobile Workers, 523 U. S. 653, 657 (1998) (“It is not the meaning of ‘for’ we are seeking here, but the meaning of ‘[s]uits for violation of contracts’ ”). AT&T’s effort to attribute a special legal meaning to the word “personal” in this particular context is wholly unpersuasive.

   AT&T’s argument treats the term “personal privacy” as simply the sum of its two words: the privacy of a person. Under that view, the defined meaning of the noun “person,” or the asserted specialized legal meaning, takes on greater significance. But two words together may assume a more particular meaning than those words in isolation. We understand a golden cup to be a cup made of or resembling gold. A golden boy, on the other hand, is one who is charming, lucky, and talented. A golden opportunity is one not to be missed. “Personal” in the phrase “personal privacy” conveys more than just “of a person.” It suggests a type of privacy evocative of human concerns—not the sort usually associated with an entity like, say, AT&T.

   Despite its contention that “[c]ommon legal usage” of the word “person” supports its reading of the term “personal privacy,” AT&T Brief 9, 13, 18, AT&T does not cite a single instance in which this Court or any other (aside from the Court of Appeals below) has expressly referred to a corporation’s “personal privacy.” Nor does it identify any other statute that does so. See Tr. of Oral Arg. 26. On the contrary, treatises in print around the time that Congress drafted the exemptions at hand reflect the understanding that the specific concept of “personal privacy,” at least as a matter of common law, did not apply to corporations. See Restatement (Second) of Torts §652I, Comment c (1976) (“A corporation, partnership or unincorporated association has no personal right of privacy”); W. Prosser, Law of Torts §97, pp. 641–642 (2d ed. 1955) (“A corporation or a partnership as such can have no personal privacy, although it seems clear that it may have an exclusive right to its name and its business prestige” (footnotes omitted)); cf. id., §112, at 843–844 (3d ed. 1964) (“It seems to be generally agreed that the right of privacy is one pertaining only to individuals, and that a corporation or a partnership cannot claim it as such” (footnotes omitted)); id., §117, at 815 (4th ed. 1971) (same).

   AT&T contends that this Court has recognized “privacy” interests of corporations in the Fourth Amendment and double jeopardy contexts, and that the term should be similarly construed here. See AT&T Brief 20–25. But this case does not call upon us to pass on the scope of a corporation’s “privacy” interests as a matter of constitutional or common law. The discrete question before us is instead whether Congress used the term “personal privacy” to refer to the privacy of artificial persons in FOIA Exemption 7(C); the cases AT&T cites are too far afield to be of help here.

   AT&T concludes that the FCC has simply failed to demonstrate that the phrase “personal privacy” “necessarily excludes the privacy of corporations.” Id., at 31–32 (emphasis added). But construing statutory language is not merely an exercise in ascertaining “the outer limits of [a word’s] definitional possibilities,” Dolan v. Postal Service, 546 U. S. 481, 486 (2006). AT&T has given us no sound reason in the statutory text or context to disregard the ordinary meaning of the phrase “personal privacy.”

III

   The meaning of “personal privacy” in Exemption 7(C) is further clarified by the rest of the statute. Congress enacted Exemption 7(C) against the backdrop of pre-existing FOIA exemptions, and the purpose and scope of Exemption 7(C) becomes even more apparent when viewed in this context. See Nken v. Holder, 556 U. S. ___, ___ (2009) (slip op., at 6) (“statutory interpretation turns on ‘the language itself, the specific context in which that language is used, and the broader context of the statute as a whole’ ” (quoting Robinson v. Shell Oil Co., 519 U. S. 337, 341 (1997))). Two of those other exemptions are particularly relevant here.

   The phrase “personal privacy” first appeared in the FOIA exemptions in Exemption 6, enacted in 1966, eight years before Congress enacted Exemption 7(C). See 80 Stat. 250, codified as amended at 5 U. S. C. §552(b)(6). Exemption 6 covers “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” §552(b)(6). Not only did Congress choose the same term in drafting Exemption 7(C), it also used the term in a nearly identical manner.

   Although the question whether Exemption 6 is limited to individuals has not come to us directly, we have regularly referred to that exemption as involving an “individual’s right of privacy.” Department of State v. Ray, 502 U. S. 164, 175 (1991) (quoting Department of Air Force v. Rose, 425 U. S. 352, 372 (1976) (internal quotation marks omitted)); see also Department of State v. Washington Post Co., 456 U. S. 595, 599 (1982).

   AT&T does not dispute that “identical words and phrases within the same statute should normally be given the same meaning,” Powerex Corp. v. Reliant Energy Services, Inc., 551 U. S. 224, 232 (2007), but contends that “if Exemption 6 does not protect corporations, it is because [it] applies only to ‘personnel and medical files and similar files,’ ” not because of the term “personal privacy.” AT&T Brief 36 (quoting §552(b)(6)). Yet the significance of the pertinent phrase—“the disclosure of which would constitute a clearly unwarranted invasion of personal privacy,” §552(b)(6)—cannot be so readily dismissed. Without it, Exemption 6 would categorically exempt “personnel and medical files” as well as any “similar” file. Even if the scope of Exemption 6 is also limited by the types of files it protects, the “personal privacy” phrase importantly defines the particular subset of that information Congress sought to exempt. See Washington Post Co., supra, at 599. And because Congress used the same phrase in Exemption 7(C), the reach of that phrase in Exemption 6 is pertinent in construing Exemption 7(C).

   In drafting Exemption 7(C), Congress did not, on the other hand, use language similar to that in Exemption 4. Exemption 4 pertains to “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” 5 U. S. C. §552(b)(4). This clearly applies to corporations—it uses the defined term “person” to describe the source of the information—and we far more readily think of corporations as having “privileged or confidential” documents than personally private ones. So at the time Congress enacted Exemption 7(C), it had in place an exemption that plainly covered a corporation’s commercial and financial information, and another that we have described as relating to “individuals.” The language of Exemption 7(C) tracks the latter.

   The Government has long interpreted the phrase “personal privacy” in Exemption 7(C) accordingly. Shortly after Congress passed the 1974 amendments that enacted Exemption 7(C), the Attorney General issued a memorandum to executive departments and agencies explaining that “personal privacy” in that exemption “pertains to the privacy interests of individuals.” U. S. Dept. of Justice, Attorney General’s Memorandum on the 1974 Amendments to the Freedom of Information Act 9, reprinted in House Committee on Government Operations and Senate Committee on the Judiciary, Freedom of Information Act and Amendments of 1974 (P. L. 93–502), 94th Cong., 1st Sess., 507, 579 (Jt. Comm. Print 1975). The exemption, the Attorney General noted, “does not seem applicable to corporations or other entities.” Ibid. We have previously viewed this Memorandum as a reliable guide in interpreting FOIA, see National Archives and Records Admin. v. Favish, 541 U. S. 157, 169 (2004); FBI v. Abramson, 456 U. S. 615, 622, n. 5 (1982), and we agree with its conclusion here.

*  *  *

   We reject the argument that because “person” is defined for purposes of FOIA to include a corporation, the phrase “personal privacy” in Exemption 7(C) reaches corporations as well. The protection in FOIA against disclosure of law enforcement information on the ground that it would constitute an unwarranted invasion of personal privacy does not extend to corporations. We trust that AT&T will not take it personally.

   The judgment of the Court of Appeals is reversed.

It is so ordered.

   Justice Kagan took no part in the consideration or decision of this case.

Print this transcript Transcript: 

ORAL ARGUMENT OF ANTHONY A. YANG ON BEHALF OF PETITIONERS

Chief Justice John G. Roberts: We'll hear argument first this morning in Case 09-1279, Federal Communications Commission v. AT&T, Inc.--

Mr. Yang.

Mr. Yang: Mr. Chief Justice, and may it please the Court:

The court of appeals has held that FOIA's statutory protection for personal privacy in Exemption 7(C) extends beyond the privacy of individuals and protects the so-called personal privacy of corporations.

That holding is inconsistent with the text of Exemption 7(C), FOIA's broader context, and the statute's drafting history, and would lead to anomalous results.

The word "personal", standing alone, refers to individual -- an individual human being.

"Privacy", standing alone, and even more so in the context of the phrase "invasion of privacy", invokes purely individual concepts.

And the sum of those terms -- that is, the statutory phrase used in FOIA, "personal privacy" -- is greater than the sum of its parts.

It's long been well settled that corporations have no personal privacy.

Justice Samuel Alito: Isn't it true that there are contexts in the law in which the word "personal" is used to refer to a corporation?

For example, you could refer to personal jurisdiction over a corporation, couldn't you?

Mr. Yang: There are -- the term "personal" is sometimes used as a term of art, and I think personal jurisdiction is one of those.

It is the modern, shorter term of art for jurisdiction in personam and reflects a distinction drawn still in the law between cases brought in personam and cases brought in rem.

That -- the evolution of that term in the law as a term of art does not reflect what the ordinary meaning of "personal" is.

It is just the same as the term "personal property", which also invokes long-established traditional distinctions between property that could be recovered in rem or in real actions versus property that might be recovered in actions in personam.

So -- and, in fact, I think it -- it is important to note that there are -- although maybe there are some instances that -- I think there's one instance that AT&T cites in its brief.

Nothing -- it never cited any use of the term "personal" to mean corporate or pertaining to a corporation.

And when -- when you--

Justice Ruth Bader Ginsburg: What about -- what about personal appearances?

Mr. Yang: --A personal appearance, I think that -- that supports our position as well.

If you're making a personal appearance, it is not something that a corporation does.

A corporation is a -- a legal construct.

It doesn't exist as a thing that can make an appearance.

Justice Samuel Alito: Well, in ordinary speech, the term "personal" is not -- the term "person" is not used to refer to a corporation.

That's legalese.

But in -- but since the -- the Administrative Procedure Act defines a person to include a corporation, why is it relevant here or dispositive here to look to the ordinary usage of term "personal" as opposed to the way it's -- it's used in the law?

And in the law, it is sometimes used to refer to a corporation.

Mr. Yang: Well, I think that -- that point actually reinforces our position, because although "person" is used in certain legal contexts to refer to artificial persons and corporations and the like, "personal" is not.

And "personal", as we explained in our brief, is not simply a grammatical alteration, an inflection of the term "person".

It has existed in its own right since the late 1300s and has developed meaning that is unique to the term "personal", which--

Justice Ruth Bader Ginsburg: Mr. Yang, can we go back first to this.

The request came in and, as I understand it, the Commission said there are two exemptions: The one for trade secrets, commercial, financial confidential information; and then there was one with Exemption 7 itself, but as to the employee.

Mr. Yang: --Correct.

There was an additional exemption, Exemption 5, which protected internal government communications.

Justice Ruth Bader Ginsburg: How does the -- does the Commission, unaided by AT&T, go through the papers and decide what would be embarrassing for an AT&T employee, as distinguished from the corporation?

Mr. Yang: How does it do that?

Justice Ruth Bader Ginsburg: Yes.

Mr. Yang: Well, I -- I don't think the touchstone is necessarily embarrassment.

What the government does, following this Court's decision in Reporters Committee is tries to determine whether there is a personal privacy interest about individuals, and that is information that pertains to particular individuals.

For instance, in this Court's decision in DOD v. FLRA the Court explained, although an agency released the name of individuals, it could properly withhold the addresses, the home addresses, of those individuals, even though that might be publicly available in phone books, because individuals have at least some small personal privacy interest in that.

So what the agency will do is try to identify information pertaining to individuals and then will conduct -- if there is certain information, will try to conduct a balancing to determine whether there is a public interest in disclosure, that is whether revealing this would disclose information against the government.

Justice Anthony Kennedy: Well, in that instance does the corporation have standing to raise that objection on the employee's behalf?

Mr. Yang: Well, I think the corporation to the -- in a reverse FOIA case, for instance, which what is we have here, where the corporation is alleging that the government's decisionmaking process is arbitrary and capricious, it has Article III standing to resist the disclosure of documents.

If you're using standing kind of like a Fourth Amendment concept of standing, I don't think that--

Justice Anthony Kennedy: Well, as an administrative matter, can the corporation make a FOIA objection on behalf of its employees.

Mr. Yang: --It can make an objection on its own behalf, which is to say that the government has not properly gone through the decision-making process.

Justice Anthony Kennedy: That's the next -- that was going to be my next question: So the corporation can raise FOIA on its own behalf?

Mr. Yang: It's actually -- let me take a step back.

FOIA actions are actions which seek to increase the amount of documents that the government has released pursuant to a FOIA request.

We have also reverse FOIA actions, which are actions under the APA and here under the Hobbs Act's review provisions, that would give the court of appeals jurisdiction.

When there's a reverse FOIA action, the claim is that the agency's final agency action is somehow arbitrary, capricious, and not -- or contrary to law.

So in this case, the FCC has certain regulations which govern its processing of FOIA requests.

And AT&T's claim, as we understand it, is that the FCC did not comply with its regulations and, therefore, its decision was arbitrary capricious because its regulations required that it consider the personal privacy interest of individuals.

I should note that, with respect to Exemption 6 or Exemption 7(C) the government itself invokes personal privacy of individuals.

That's what we do when we process FOIA requests, because individuals normally don't get any notice that there has been a FOIA request.

The government simply processes it and asserts those rights, in the sense that they're rights, asserts those interests on behalf of corporations -- on behalf of individuals.

Going back to the text of the statute, the term "privacy" and particularly an invasion of privacy invokes concepts that back to Warren and Brandeis's right of privacy, their article which explained that or identified in the law certain human dignitary interests that they gave the label privacy.

Chief Justice John G. Roberts: Privacy certainly isn't as limited as you argue "person", "personal", is.

Corporations have private property.

They have private documents.

The concept certainly applies in the corporate context as it does in the individual.

Mr. Yang: I think the term "privacy", its ordinary meaning, not the only meaning but the ordinary and the commonly used meaning, does invoke individual concepts.

When corporations or other entities are at issue, normally the more appropriate word would be "confidentiality" or "secrecy".

Those concepts--

Chief Justice John G. Roberts: You don't have confidential property or secret property.

You have private property.

Mr. Yang: --Well, true.

But it's is not privacy.

When we're talking about the right of privacy, those -- that word we think, again going back to Warren and Brandeis and up through the fifties and sixties when Prosser was elaborating the law of torts in his groundbreaking article on privacy, those concepts applied only to individuals, and particularly when you combine the terms.

The Restatement makes clear, and back to Prosser it was clear, that corporations have no right of personal privacy.

So when Congress in 1974 was enacting Exemption 7(C), there would have been no basis for it to conclude that the rights that it was conferring through the phrase AT&T is correct, foreign governments, State governments, local governments.

There's no predicate for those types of entities having personal privacy in the law.

Justice Antonin Scalia: Our cases assert, do they not, that the exceptions to FOIA should be narrowly construed?

Mr. Yang: There are cases--

Justice Antonin Scalia: And we've said that on a number of cases.

Mr. Yang: --In certain contexts, this Court has indicated that exceptions are to be narrowly construed.

We think that, when read in context, those cases and other cases of this Court explain that FOIA's exemptions are to be given meaningful reach, because what Congress was trying to do in FOIA -- and this is somewhat against our interest in this case and we explain it more fully in our brief in Millner, which is currently pending to the Court -- what Congress was trying to do in FOIA was to establish a general principle of disclosure, but in the exceptions it identified very important interests that warranted an exception from those general rules.

And to narrowly construe the exceptions we think would distort rather than advance congressional purpose in enacting FOIA.

Justice Samuel Alito: Suppose Congress had used the phrase "privacy of a person", "privacy of any person".

Would you make the same argument?

Mr. Yang: Our argument would be a little different, particularly in the context of Exemptions 6 and 7(C), where the phrase would be

"an invasion of privacy of any person. "

We think, particularly when we're talking about invasions of privacy, even though a corporation might have a broader definitional meaning in context, Congress in that case would still, we think, be referring to individuals.

But, of course, that's not this case.

That would make it a little more difficult.

We think we would probably still prevail on that reading.

But--

Justice Ruth Bader Ginsburg: What about the Privacy Act?

The Privacy Act undoubtedly concerns individuals, human individuals--

Mr. Yang: --Correct.

Justice Ruth Bader Ginsburg: --not artificial beings.

But it uses the words "individual privacy".

Mr. Yang: Well, it actually uses both phrases.

It uses, as we explain in our brief, the phrase "personal privacy" to explain that that's what the act was protecting.

And then within the operative portions of the act, it uses "individual", but it does so for a very specific reason.

Congress was intending to protect a subset of individuals and it defined the term U.S. citizens and lawful permanent residents.

So not all individuals would be protected by the Privacy Act.

Now, Congress did that, not because had it used the phrase U.S. citizen or lawful permanent resident.

Justice Sonia Sotomayor: Can I ask you a question.

I'm not sure I understood your response to Justice Scalia.

If there is ambiguity, if a term can be given two meanings, and it's not clear -- and I know you're challenging the clarity question here -- I thought that Congress's intent to have full disclosure would necessarily mean that where there's ambiguity as to the meaning of an exception then we should change the narrowest meaning.

Mr. Yang: Well, I think we disagree, and I think this is why.

No legislation pursues its primary goal at all costs, and the FOIA exceptions that are at issue here protect very important values that Congress deemed to warrant exceptions from the rule.

So if the Court were to put a thumb on one scale of that balance that Congress has tried to strike, after using all the normal tools of construction, we think that would distort rather than advance the intent--

Justice Antonin Scalia: I don't understand that.

We're not putting a thumb on the scale.

We're taking account of the fact that -- that Congress has many objectives in any legislation and that the limitations are as important as the substantive end.

Nonetheless, when, having applied all of that, you end up with, gee, I don't know; it is ambiguous, you say even in that situation, we don't apply the rule that--

Mr. Yang: --Well, if you were to get -- after using all the normal tools that the court does and you're on--

Justice Antonin Scalia: --That's what ambiguity means.

It means--

Mr. Yang: --That's usually a very rare instance, that you are exactly at equipoise.

And we certainly aren't relying on narrow construction in this case.

Justice Antonin Scalia: --Okay.

The government wants to abandon the principle that we've set forth in our cases--

Mr. Yang: Well, we think--

Justice Antonin Scalia: --that exceptions to FOIA are to be narrowly construed.

The government does not support that.

Mr. Yang: --We do not embrace that principle.

Justice Antonin Scalia: Even though we did?

Mr. Yang: Well, we think that those cases -- there are two lines of this Court's decisions.

Sometimes the Court explains that exceptions are narrowly construed and sometimes the Court explained that its decisions have given -- its decisions have given the exception practical reach in order to strike the appropriate balance that Congress has tried to strike in FOIA.

Now, let me just say, our narrow construction to the extent the Court would want to reaffirm it here -- we're not advancing that -- would only help the government's position.

Justice Ruth Bader Ginsburg: Your argument is based on a case that will come before us.

So -- but in this case it is to your interest to say, yes, that has been -- that has been set forth as precedent, that FOIA exceptions are to be narrowly construed.

Mr. Yang: Well, the government has broader interests beyond a single case and we think that, again, we're not embracing strict construction in this case.

But again, that would only help the government's position if you were to disagree.

Justice Antonin Scalia: Well, I'm not going to help the government's position if the government doesn't want to be helped.

I'm happy to leave you where you put yourself.

Mr. Yang: And we accept that in this case, and we think that the language of the text, particularly when read in context in light of the statutory history, and particularly when you take a look at what's gone on since 1974 -- I mean, in the more than 35 years since, there has been uniform agreement that Exemption 6 and 7(C) apply only to individuals.

Chief Justice John G. Roberts: I suppose -- I suppose families have rights of personal privacy, don't they?

Mr. Yang: Well, in certain contexts family members, as this Court decided in Favish, can have a right to personal privacy.

But the Court in Favish recognized that that was a very, you know, significant departure from the prior understanding that the right of personal privacy in FOIA protects information about the individual, him or herself, and recognized that there is another strain of personal privacy which from longstanding traditions in terms of -- within our society, the Court could draw on in saying that personal privacy should also protect, at least in the context of--

Chief Justice John G. Roberts: So in some contexts -- in some contexts, personal privacy does go beyond the individual?

Mr. Yang: --No, still it is individual.

I mean, those are individual members of the family.

Chief Justice John G. Roberts: Aggregations of individuals?

Mr. Yang: Well, no.

I think an individual member of the family has a personal privacy interest by virtue of the relationship to the decedent in Favish.

Let me go back.

Just, I think I would be remiss if I didn't remark upon this Court's decision--

Justice Antonin Scalia: Excuse me.

To go back to the Chief's question, you do not deny that the individuals who form the corporation, the officers and the employees, are protected by the right of personal privacy and indeed you will -- you will edit any FOIA responses to protect those individuals, even though there are many of them, right?

Mr. Yang: --Correct.

If there were--

Justice Antonin Scalia: But as individuals, not as the corporation.

Mr. Yang: --As individuals, because the information pertains to them.

Now, going to the American Express case, which we explained in our reply, I think that is fatal to the proposition that -- the proposition of AT&T that there's a grammatical imperative that adjectives take the meaning of the related noun.

In American Express, the Court construed the Truth in Lending Act, which includes the definition of "person" to include, for instance, corporations.

It then went on to construe a term, "consumer", which concerns transactions primarily for personal, family, household, or at the time agricultural purposes.

The Court explained that a transaction, the transaction that was conducted for a corporation's business purposes, that it could not -- there was --

"It did not fall within any of the purposes specified. "

--that was a quote -- in the definition of consumer.

That is, it did not concern personal purposes.

We think that's fatal.

The Court, in fact, said it was the only possible conclusion and that there was no other possible interpretation of the statutory phrase.

After repeating the enumeration of those four factors three times and then on the very next page saying corporate -- a transaction for corporate business purposes could not be fit within that definition.

Finally, I'd like to remark upon the anomalies that this Court would set us forth upon if it were to decide that corporations have personal privacy.

At least in the context of individuals, there's an established body of law and societal understanding of what a person, an individual, might have a personal privacy interest in.

But if we expand personal to include corporations, foreign governments, State governments, local governments, defining what would be personal privacy of those institutions would require an extraordinary exercise, a simple policy judgment on the part of the agency first and then the Court.

And this Court in Favish was careful to explain that that type of decisionmaking would be improper and that appropriate guides to limit and make objective a court and agency's decisionmaking is required.

Congress provided no benchmarks, never addressed corporate, foreign governments, or any other non-human entity in the context of personal privacy.

And again, for 36 years there's been uniform agreement that personal privacy applies in this context only to corporations.

If there are no further questions--

Justice Sonia Sotomayor: So if an individual has been -- individual human being has been investigated by the FBI and a FOIA request is made for records related to that investigation, would the name of the individual not be turned over?

Mr. Yang: --Well, if someone is asking for an investigation of Tony Yang--

Justice Sonia Sotomayor: Yes.

Mr. Yang: --Our -- I don't -- I can't say definitively, but I think I can probably answer that, that even answering the question of whether there is a responsive record answers the question.

Justice Sonia Sotomayor: Well, that's the point.

So really your adversary is saying that the same harm that occurs to an individual -- putting aside the difficulty of defining privacy more broadly, but the same harm that occurs to an individual who is disclosed to have been the target of an investigation is an identical privacy right of a corporation; or a corporation has the same negative effects on the individual.

So I think they would concede that privacy might need to be defined differently for corporations.

They're simply saying this privacy interest is not.

Mr. Yang: Well, the key point is that we don't deny that corporations have some interest in confidentiality that exists out there.

For instance, AT&T has relied upon the common law of defamation where a corporation's business interests, business reputation, is implicated.

But even--

Justice Sonia Sotomayor: It's hard to think they pled guilty already.

So it is hard to imagine how much exponentially more damaging--

Mr. Yang: --Well, to be fair to AT&T, there was a settlement agreement in which they did not admit any wrongdoing.

Justice Sonia Sotomayor: --But that presupposes some sort of investigation.

So that's public knowledge.

Mr. Yang: That is public knowledge.

But I think the key point is that the corporate -- a corporation's interests in maintaining its business reputation has been not regarded as a personal privacy interest.

It's true that they have interests and FOIA protects those interests, for instance, interests in confidential, commercial or financial information under Exemption 4.

So really we come back to the key point, which is when Congress used the phrase 1974, or even now, to think that term would have referred to corporations.

The fact that corporations have other interests and other rights that might be legitimate is kind of beside the point because those interests are not referred to in the law or otherwise as personal privacy interests.

I'd like to reserve the balance of my time.

Chief Justice John G. Roberts: Thank you, Mr. Yang.

Mr. Yang: Thank you.

Chief Justice John G. Roberts: Mr. Klineberg.

ORAL ARGUMENT OF GEOFFREY M. KLINEBERG ON BEHALF OF RESPONDENTS

Mr. Klineberg: Thank you, Mr. Chief Justice, and may it please the Court:

The question in this case is whether any organization, including not only business corporations like AT&T, but also nonprofit organization and political associations, should be categorically excluded from protection under Exemption 7(C), such that this exemption will now offer less protection for privacy interests than the Constitution and the common law.

This Court has consistently held that the privacy protections under FOIA are broader and the text supports that position.

Justice Ruth Bader Ginsburg: Do you include in this the people, the persons that you say are shielded by this privacy exemption, as Mr. Yang said, foreign governments, State and local governments, those have all?

Those all fall under the APA definition of person.

Mr. Klineberg: Justice Ginsburg, they do.

And we would agree that as a matter of statutory construction, the concept of personal privacy does apply to those, those other categories of actors.

Now, whether once that privacy interest is balanced against the public's interest in disclosure -- that balance may well be different with respect to public or foreign entities.

But -- but certainly they -- they have a right to personal privacy under the terms of the statute.

Justice Ruth Bader Ginsburg: Can you give us an idea of -- the corporation has been shielded by Exemption 4 for its confidential, financial information, trade secrets; and its employees have been protected under Exemption 7.

What is it, what would be -- would fall within this privacy exception that would not be confidential business information or relate to employees of the corporation?

Mr. Klineberg: Justice Ginsburg, we -- I could give you two categories or kinds of examples.

One is, for example, a series of e-mails among corporate officers -- granted, whose own personal names and identifying information have been redacted -- but in those e-mails, they may engage in a frank exchange about the competence and intelligence of a would-be regulator of the corporation.

Or a -- disparaging comments about--

Justice Antonin Scalia: Excuse me.

Why does that related to their privacy?

I don't understand that.

Why does that relate to the corporation's privacy interest?

Anything that would embarrass the corporation is -- is a privacy interest?

Mr. Klineberg: --Well, Justice Scalia, the -- the answer is simply that these were communications, conversations, that were occurring with an expectation of privacy by the individuals involved on behalf of their employer, and to the extent that they could be used to harm the reputation or the customer goodwill of -- of the company, they do indeed have a -- a personal privacy interest--

Justice Antonin Scalia: Anything that hurts the -- the -- the image or the goodwill of the company?

Mr. Klineberg: --Your Honor, everything that with -- that is intended to be private is certainly subject to the balancing that we're asking for under Exemption 7(C), indeed that Congress provided; that if it is -- it's an interest in personal privacy, then it is to be balanced to determine whether the disclosure of that document is unwarranted.

Justice Antonin Scalia: Mr. Klineberg, can you give me any example of -- your -- your brief talks a lot about the adjective "personal".

But we're not talking just about the adjective "personal".

We're talking about the phrase "personal privacy".

"Personal", yes, can indeed apply to corporations sometimes; but there are certain phrases where it clearly does not.

For example, you talk about personal characteristics.

That doesn't mean the characteristics of General Motors.

You talk about personal qualities.

It doesn't mean the qualities of General Motors.

You talk about a point of personal privilege.

It's not a privilege of a corporation.

And I think personal privacy is the same thing.

Can you give me any examples in common usage where people would refer to the personal privacy of a -- of a corporation?

It's a very strange phrase to me.

Mr. Klineberg: Your Honor, as Justice Alito asked my -- my colleague earlier, the -- the whole concept of -- of "person" as including a corporation would surprise many people, the proverbial person on the street.

Justice Antonin Scalia: Yes.

I'm not talking about that.

I'll grant you that -- that "personal" could refer to a corporation, although the government distinguishes it by etymology and so forth.

Never mind that.

I'm talking about personal privacy.

Do you have any examples from the New York Times, from, you know, Boswell, from anywhere, that anybody refers to the interests of a corporation as the "personal privacy" of General Motors?

I cannot imagine somebody using the phrase like that.

Mr. Klineberg: Your Honor, we're -- we're not aware of that phrase being used certainly in any statutory context--

Justice Ruth Bader Ginsburg: But you were about to give a second example of where, even though it hasn't, "personal privacy" hasn't been used in the media.

But you said one example is the two officials who are saying unpleasant things about a regulator; and what was your other example?

Mr. Klineberg: --Well, there's a -- there's a sub-example within that category which is the disparaging of an important customer, some unpleasant comments about an important customer of the corporation that could then be used quite -- quite clearly by a -- by a competitor to -- to harm the goodwill of the -- of the corporation with respect to that customer.

But there is indeed another whole category of documents that goes beyond the -- the context of AT&T's interest here; and the example is internal documents within, say, an environmental nonprofit organization talking about their political strategies for defeating an amendment to the Clean Air Act.

As an example, those political strategies that were shared internally by -- by members of the organization without any intent to -- to have them become public would become subject to -- to automatic disclosures, categorical disclosure, were the government to prevail in this case.

Chief Justice John G. Roberts: Do you think it's -- how does that work?

If you have the president of the environmental organization says something about whatever it is, we can lobby this guy to get this change, is he able to protect that on the grounds of his personal privacy, even though the embarrassment would go to the -- the organization as a whole?

Mr. Klineberg: Mr. Chief Justice, I believe the answer is in most cases yes, that in -- that the identity of the -- the specific speaker and any identifying information corresponding to him or her would be protected.

Chief Justice John G. Roberts: Why is it such a big deal, then, to extend that to the organization as a whole, if the individual's privacy is already going to be protected?

Mr. Klineberg: Indeed, Your Honor, I think that is -- that is our position, that -- that the personal privacy of the corporation is -- is affected by such disclosure.

Chief Justice John G. Roberts: No.

I mean you're -- you're already protected, at least to a significant extent, because the individual officers would be able to assert a privacy interest, to the extent at least that what you find embarrassing to -- to the corporation is also individually embarrassing to them.

Mr. Klineberg: Right.

But the -- but the redactions that would occur would in all likelihood simply be redactions of their names and perhaps their titles, but their -- the substance of their comments would certainly be -- would be disclosed under the government's view.

Justice Stephen G. Breyer: Are there any examples that you have?

That is, in the last 35 years have there been any instance where the Justice Department or some other law enforcement agency compiled a file for law enforcement purposes, that in that file there were, for whatever reasons, a bunch of conversations about the organization's strategy, and it did not interfere to release it with -- with anybody's personal privacy, but it might interfere with that organization's strategy, so the organization, whatever it was, the NRDC or something, was very upset about it?

Did you find a single example or a thousand examples?

Or how many examples did you find of that happening?

Mr. Klineberg: Well, Justice Breyer, one of the -- one of the things that has puzzled us in this case is why -- why it has taken 35 years--

Justice Stephen G. Breyer: Well, one reason might be that this has really never been a problem because all the legitimate -- or most of them, anyway -- that these organizations that have interests in privacy are actually taken care of by the other 17 exemptions here.

Justice Antonin Scalia: Another reason might be that personal -- nobody ever thought that personal privacy would cover this.

Justice Stephen G. Breyer: This may be the first.

That's why I want to know, is there -- one of the things you would have looked for is an example of a real problem of the kind you're talking about.

I'm not saying you don't have one.

I would just like to know if you found any, and what they are, so I could read them.

Mr. Klineberg: --Your Honor, we haven't found anything specific to the -- in response to your question.

But I -- I will say that one of the explanations for why this issue has become more important today than maybe it has been in the recent past, there really are three reasons.

One is that Exemption 4, which Mr. Yang discussed, has been increasingly narrowed by the courts of appeals to the point where they specifically say, and indeed the government concedes, that -- that the reputational concerns and the harm to customer goodwill is not the sort of harm that Exemption 4 guards against.

And so that has become increasingly clear among the courts of appeals, that the interests in confidentiality that we're talking about under exception 7(C)--

Justice Stephen G. Breyer: One possible reason you don't find them is because it is very rare that a law enforcement agency is going to try to subpoena the top strategy of the -- of the NRDC, confidential strategy.

There might not be too many such records.

It -- another reason might be that they don't really care.

Another reason might be -- I don't know.

But if you haven't found any examples, what we're back to -- or -- and maybe there are actual examples of that -- of what you said to Justice Ginsburg of the other instance, where the -- what was that first one?

Mr. Klineberg: --Right.

Justice Stephen G. Breyer: I'd like to know about the example.

What was the first one again?

Mr. Klineberg: Well, the -- the first one was comments about a regulator--

Justice Stephen G. Breyer: They're worried about saying something mean about a regulator.

Okay.

Yeah, fine.

Are there examples of that?

Is this the first one and what's the empirical statement?

Mr. Klineberg: --Your Honor, it is a -- I cannot point you to specific examples.

They're -- they're sort of hard to -- hard to find in the -- in the sense that they are -- that they're not typically litigated, and they certainly haven't been litigated under -- under this -- under this exemption before.

But -- but I think the other explanation for why this matters today in a way that it might not have mattered so much before, two -- two other reasons: One is that -- that increasingly, FOIA is being used by -- by competitors and legal adversaries to obtain information, not about what the government is doing, not about what the government is up to, but about what evidence the government might have gathered from private parties.

Justice Ruth Bader Ginsburg: Is that a reason to change what was the understanding of Exemption 7?

One of the items that doesn't work in your favor was the attorney general's memorandum at the time of the '74 amendments.

Mr. Klineberg: Well, actually, Justice Ginsburg, at the time of the '74 amendments the only existing attorney general memorandum was that of Attorney General Clark, which read "personal privacy"--

Justice Ruth Bader Ginsburg: I'm talking about the -- Attorney General Levi.

Mr. Klineberg: --Right, and that -- that was issued subsequent to the amendments in 1974, and that was an -- an interpretive gloss on the recent amendments.

Justice Ruth Bader Ginsburg: Yes, that's what I meant.

Mr. Klineberg: Right.

And so at the time that Congress enacted the amendments, both under the Privacy Act as well as Exemption 7(C), the -- the only existing statement about what personal privacy might mean would be -- would have been Attorney General Clark's understanding that personal privacy can in fact incorporate interests of corporations.

Justice Antonin Scalia: But if Attorney General Levy's description, which was -- which was issued for the purpose of telling all the agencies of the Federal government what this new statute meant -- and it had a lot of ambiguities in it -- if that was wrong about -- about this subject, you would have thought somebody would have objected.

I mean, did some members of Congress who -- who had passed FOIA say, this is outrageous; what about the personal privacy of General Motors?

I'm not aware of any objections along those lines.

Mr. Klineberg: Well, Your Honor, the -- Attorney General Levy's memorandum did not go into a long discussion or description of the analysis.

It simply said it does not appear or does not seem to apply to corporations.

And it's absolutely true.

This is not -- this issue hasn't -- hasn't really been litigated and presented.

But our position is that there's nothing in the plain language that would indicate that Congress intended to categorically exclude corporations.

It is certainly true that the legislative history at the time, as the government spends quite a bit of time exploring, does suggest that what was -- what was in most people's minds was protection of individual privacy.

But there is no indication that they intended--

Justice Antonin Scalia: Is it the burden of the government to show that they intended to exclude corporations, or is it your burden to show that this exception was meant to include corporations?

I would think the latter is where the burden lies in this case.

Mr. Klineberg: --Well, Justice Scalia, our -- our burden is to -- is to defend our view of the statute.

Justice Antonin Scalia: Well, but if you're asking the government to show that the -- there was an intent to exclude corporations, I don't think that's their burden.

I think it's your burden to show that this exemption was intended to include corporations.

Mr. Klineberg: I agree, Your Honor, that we are -- our burden is to demonstrate to you why the words "personal privacy" in the statute apply to corporations.

I think one of the background facts is that there is no indication that anyone thought that it was not to be included.

But let me--

Chief Justice John G. Roberts: Counsel, your central argument is that because "person" is defined to include corporation, "personal" in the same statute must include corporate.

I tried to sit down and come up with other examples where the adjective was very different from the root noun.

It turns out it is not hard at all.

You have craft and crafty.

Totally different.

Crafty doesn't have much to do with craft.

Squirrel, squirrely.

Right?

I mean, pastor -- you have a pastor and pastoral.

Same root, totally different.

So I don't understand -- I don't think there's much to the argument that because "person" means one thing, "personal" has to be the same relation.

Mr. Klineberg: --Mr. Chief Justice, let me try to explain precisely what our proposed rule of construction is, because I think there's been some confusion and I -- and I think the government has -- has not properly characterized it, and certainly in their reply brief.

We do not agree, we do not sign on to, the term "grammatical imperative", because our concern with that phrase is that it might suggest that the rule is to be applied regardless of the consequences, and that is not our position.

Our position is that where the adjective means

"of or relating to a term that Congress has expressly defined. "

that definition should be applied, so long as it makes sense to do so in light of the text and structure of the statute as a whole.

So in this case, Your Honor, "personal" does -- is defined -- when you open up the dictionary, the very first definition is

"of or relating to a particular person. "

"Person" is, then, defined by Congress as -- to include not only individuals, but -- but corporations and other associations.

So in this particular context, it makes perfect sense to look to--

Justice Ruth Bader Ginsburg: Mr. Klineberg, you have read the brief of the Project on Government Oversight where they give dozens and dozens of examples to show that, overwhelmingly, "personal" is used to describe an individual, not an artificial being.

And it is the overwhelming use of personal.

Mr. Klineberg: --Justice Ginsburg, we do not dispute that personal is often, even many, many times, used to describe an individual and can only be understood in that context.

Indeed, the Truth in Lending Act argument that the government made in its reply brief is a perfect example.

The word "personal" there is -- is mentioned alongside personal, family, and household.

And indeed, even in that very same statutory definition of "consumer", the word is referred to as "a natural person".

So in that context, it would be absurd or inappropriate to -- to borrow the concept of the definition of "person".

All we're saying is when it is not absurd, when it is not -- does not do violence to the statute, under those circumstances, it makes perfect sense to borrow the definition that Congress provided.

Justice Sonia Sotomayor: What would be similar to medical files as such, under Exemption 6, that uses the same phrase, "unwanted invasion on personal privacy"?

So what would your reading do to Exemption 6, and how would we create or even make sense of Exemption 6?

Mr. Klineberg: Your Honor, we don't believe our reading does any -- any damage to this Court's jurisprudence in Exemption 6, and the -- the simple reason is that while the words 6 do mean -- and we agree with the Attorney General Clark in this -- do mean that -- the same thing as it means in Exemption 7(C), but because -- precisely for the reason you said, Justice Sotomayor -- the personnel, medical, and similar files limits the likely scope of that privacy interest to individual, natural -- natural persons.

And that's simply not because of the words "personal privacy", but because of the company that those words keep in that -- in that particular exemption.

Justice Sonia Sotomayor: Why?

I mean, if you're saying that personal privacy has some overlap with individual privacy -- obviously, it has to if you're going to give meaning to personal privacy -- don't we have to give meaning to "and similar files"?

And so what would those be?

Mr. Klineberg: Well, Your Honor, as this Court said in the Washington Post case, the understanding of similar files is defined by the two benchmarks that are expressly provided, right?

Personnel and medical.

So the kinds of files are limited to the sorts of files in which individual information is likely to be contained.

In that case, it was a passport file.

Again, our -- our argument is simply that it is that part of Exemption 6 that does the limited work in terms of its scope.

The words 6 as -- as they do in Exemption 7(C).

The -- the other point that I certainly want to make clear is that our position is that personal privacy is only the first step in the determination whether or not a particular document is disclosed, because if the government prevails, there will be no need even to articulate a public interest in the disclosure of potentially harmful documents.

Instead, they will be automatically available to any competitor or legal adversary.

And all we are asking for and indeed all that Congress provided for is that the privacy interests be weighed against the public interest in disclosure.

And what the FCC did here was to categorically exclude corporations from the protections of Exemption 7(C).

And all we are saying is that those interests are legitimate and just need to be balanced.

And what the Government's obligations under these circumstances are is that they need to weigh the private interests in the documents against the articulated public interest in disclosure.

And that interest, of course, has to do with what the Government is up to, what do these documents tell us about what the Government is doing.

And if, as the amici on the Government's side suggests, there are lots of public value and public interest in the disclosure, then that balance is more likely to be weighed in favor of disclosure.

All we are asking for, though, is that that balance take place.

And what's happened here is that this, as I said, a categorical exclusion that simply is inconsistent with the terms that Congress laid out in exemption 7(C).

Congress did not intend for FOIA to be a tool for an organization's adversaries to obtain access to harmful or embarrassing documents compiled for law enforcement purposes where such documents do nothing to open agency action to public scrutiny.

If the Government has its way in this case, the result will be what this Court decried in Favish, which was that it would be the failure to protect the privacy of citizens against the uncontrolled release of information compiled through the power of the State.

If there are no further questions, I urge that the Third Circuit be affirmed.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Yang, you have six minutes left.

REBUTTAL ARGUMENT OF ANTHONY A. YANG ON BEHALF OF PETITIONERS

Mr. Yang: Thank you, Mr. Chief Justice.

AT&T appears to have changed or at least modified its position somewhat from the position articulated at page 14 of its brief.

There AT&T says,

"By expressly defining the noun "person" to include corporations, Congress necessarily defined the adjective form of that noun, personal, also to include corporations. "

Now, AT&T has given up on the grammatical imperative that guided exclusively the court of appeals decision in this case, there's nothing left.

AT&T can provide no example where the term personal privacy has ever been used to refer to a corporation, much less a foreign government or state or local government in any context, whether it be FOIA, the law generally, or even in common usage.

AT&T can provide no example of any problems that have arisen in over 35 years of the Government's consistent administration of this provision.

In fact, all indications point in simply one direction.

Personal privacy applies only to individuals.

The terms personal and the terms privacy do that alone.

And together, personal privacy makes that clear.

The legislative history, the decisions of this Court pointing to the balance applying only to individuals, individual rights.

All point in the same direction.

We would ask that the Third Circuit be reversed.

Chief Justice John G. Roberts: Thank you, counsel.

The case is submitted.

Print this transcript Transcript: 

Justice John G. Roberts, Jr.: I have our opinion this morning in Case 09-1279 FCC versus AT&T.

This case started when the Federal Communications Commission conducted an investigation of AT&T.

In the course of that investigation, AT&T turned over many internal documents to the FCC.

CompTel, a trade association representing some of AT&T's competitors, filed a request asking that the FCC give an access to those documents.

CompTel filed its request under the Freedom of Information Act or FOIA.

And under that Act, federal government agencies are required to make documents publicly available upon request unless the documents are covered by an exemption.

There are nine such exemptions.One of which Exemption 7 is the one that issue in this case.

Exemption 7 applies to information that is complied for law enforcement purposes.

Exemption 7 sees specifically exempts from disclosure any such information if disclosing it “could reasonably be expected to constitute an unwarranted invasion of personal privacy”.

AT&T sought to block the disclosure of the documents it had turned over to the FCC arguing that Exemption 7(C) should protect its personal privacy.

The question presented in this case is whether corporations as opposed to just individuals can have personal privacy under Exemption 7(C).

Now, AT&T's primary argument is that the word “personal” is the adjective form of the word “person” and “person” is defined in the FOIA.

For the purposes of the statute, Congress defined the word “person” to include corporations and various other entities because the statutes says that the word “person” extends to corporations, AT&T argues, so should the word “personal” when used in the same statute.

We disagree.

Adjectives often reflect the meaning of related nouns.

A person who is charitable is one who is generous and benevolent, just as a charity is an institution that gives relief to needy persons and causes.

But sometimes adjectives and nouns have disparate meanings.

For example, the adjective “corny” does not have any obvious connection to the noun “corn”.

Now, AT&T is right that “person” in the statute is defined to include corporations, but “personal” is not because “personal” is an undefined term in the statute, we look to its ordinary meaning and context.

The ordinary meaning of “personal” does not include corporations.

We do not usually speak of personal characteristics, personal effects, personal correspondents, personal influence, personal tragedy as referring to corporations or other artificial entities.

It's not that corporations do not have correspondent's influence or tragedies of their own, but then we do not use the word “personal” to describe it.

In fact, we often use the word “personal” to mean just the opposite of business-related.

We speak for example of personal expenses as opposed to business expenses.

In addition, don't forget that we are trying to figure out not just the reach of the term “personal” but of the phrase “personal privacy”.

An adjective can take on a different meaning depending on the noun that it modifies.

A golden cup is one made out of or colored like the metal, a golden boy is one who is talented, successful, charming and so on.

In the present context, it seems clear to us that “personal privacy” does not include corporations.

This Court has often referred to the term “personal privacy” as it is used in FOIA as protecting the privacy of individuals.

But we have no examples where a court has used that term to describe the privacy of a corporation.

AT&T argues that the Court has, in fact, recognized privacy interests of corporations in a variety of context such as under the Fourth Amendment and Double Jeopardy Clause.

But the issue before us is a much narrower one.

This case is only about FOIA Exemption 7(C) nothing more.

The case as AT&T cites from the other areas are too far field from the particular question that issue here to be of much help.

We hold that personal privacy in FOIA Exemption 7(C) does not include the privacy of corporations.

The judgment of the Court of Appeals for the Third Circuit is therefore reversed.

All members of the Court join the opinion to that effect except Justice Kagan who did not participate in the consideration or decision of the case.