Overdoing it on corporate rights

Posted: Monday, January 24, 2011

If a corporation is a “person” under the law, does it get the kinds of “personal privacy” protections real people enjoy — just because the adjective personal derives from the noun person?

AT&T claims it does.

But if that’s what federal law means, it will be one more way in which corporate interests trump those of ordinary Americans.

Here’s why: Corporations will be able to use the federal Freedom of Information Act to keep secret all sorts of information the government collects while investigating possible wrongdoing. And companies will be able to do that under the flimsy excuse disclosure could embarrass them.

As though corporations, which are legal constructs, have the ability to blush. Seems more like some companies are beyond shame.

AT&T has been trying to redefine FOIA to prevent competitors from getting records of a Federal Communications Commission investigation.

In 2004, before SBC Communications and AT&T became one, SBC reported itself to the FCC for overcharging the government to provide technology to some Connecticut schools through the E-Rate program. The FCC investigated and collected records from the company. In a settlement, the company paid the government $500,000 but didn’t admit any wrongdoing.

Then came CompTel, a trade group representing some AT&T competitors, asking for all documents in the investigation file. And AT&T has continued trying to block release of the records.

FOIA, originally passed in 1966, is designed to make government open by allowing anyone to ask for records held by federal agencies. The idea is to make sure federal agencies are policing tax dollar expenditures and doing their regulatory jobs. But there are exemptions under which some documents can be withheld.

Exemption 4 covers businesses’ trade secrets and financial data that has been turned over to the government for licensing, record-keeping and investigatory purposes.

Exemption 6 covers personnel and medical files that would invade individuals’ personal privacy.

And Exemption 7(C) covers data compiled for law enforcement investigations that would invade personal privacy if released.

The FCC didn’t give CompTel individuals’ personal information from the investigation files and withheld sensitive commercial data but was going to turn over other internal documents until AT&T got a ruling from the 3rd U.S. Circuit Court of Appeals that the company had “personal privacy” rights tied up in those records.

The FCC argues this can’t be. After all, corporations can’t sue for the tort of invasion of privacy.

AT&T counters that corporations have privacy rights against unreasonable searches and double jeopardy.

The Reporters Committee for Freedom of the Press, representing a multitude of media organizations, insists personal privacy refers to such intimate details as paternity and death scene photos, and setting up unreasonable barriers to disclosure would “severely inhibit the public’s ability to keep a check on corporate behavior and government regulatory functions.”

Journalists, after all, have used FOIA to uncover dangerous maintenance deficiencies on U.S. airlines; security problems at nuclear power plants; unsafe conditions at mines; health code violations by airline food suppliers; and evidence that a meat plant knew it was shipping tainted products.

When the U.S. Supreme Court heard arguments in the case Wednesday, that business about corporations having personal privacy rights didn’t sell so well.

When AT&T lawyer Geoffrey Klineberg argued a company might have a personal privacy interest in not revealing an e-mail exchange in which corporate officers disparaged a federal regulator, Justice Antonin Scalia was skeptical.

“Anything that would embarrass the corporation is — is a privacy interest?” Scalia asked.

Then he said, “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. ...”

He called the “personal privacy” of a corporation “a very strange phrase to me.”

Later on, Chief Justice John Roberts offered examples of adjectives with different meanings from their root nouns: craft and crafty; squirrel and squirrely; pastor and pastoral.

Companies do have legitimate reasons to keep some information confidential. But AT&T’s real argument, encapsulated in its main brief, is CompTel tries to use investigatory records to tarnish AT&T’s reputation and gain competitive advantage. But isn’t AT&T seeking to distort FOIA to its own advantage?

That’s surely not in the public interest.

• Linda P. Campbell is a columnist and editorial writer for the Fort Worth Star-Telegram. Readers may write to her at 400 W. 7th Street, Fort Worth, Texas 76102, or via e-mail at lcampbell@star-telegram.com.



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