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No. 09-1279

 

In the Supreme Court of the United States

FEDERAL COMMUNICATIONS COMMISSION AND
UNITED STATES OF AMERICA, PETITIONERS

v.

AT&T INC. AND COMPTEL

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

ELENA KAGAN
Solicitor General
Counsel of Record
TONY WEST
Assistant Attorney General
EDWIN S. KNEEDLER
Deputy Solicitor General
ANTHONY A. YANG
Assistant to the Solicitor
General
LEONARD SCHAITMAN
HENRY C. WHITAKER
Attorneys
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217

AUSTIN C. SCHLICK
General Counsel
DANIEL M. ARMSTRONG
Associate General Counsel
MICHAEL A. KRASNOW
Counsel
Federal Communications
Commission
Washington, D.C. 20554

 

QUESTION PRESENTED

Exemption 7(C) of the Freedom of Information Act, 5 U.S.C. 552(b)(7)(C), exempts from mandatory disclo sure records or information compiled for law enforce ment purposes when such disclosure could reasonably be expected to constitute an unwarranted invasion of "per sonal privacy." The question presented is:

Whether Exemption 7(C)'s protection for "personal privacy" protects the "privacy" of corporate entities.

PARTIES TO THE PROCEEDING

The petitioners are the Federal Communications Commission and the United States of America.

Respondent AT&T Inc. was the petitioner in the court of appeals. Respondent CompTel was an inter venor below.

 

In the Supreme Court of the United States

No. 09-1279

FEDERAL COMMUNICATIONS COMMISSION AND
UNITED STATES OF AMERICA, PETITIONERS

v.

AT&T INC. AND COMPTEL

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

The Solicitor General, on behalf of the Federal Com munications Commission (FCC or Commission) and the United States of America, respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Third Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App., infra, 1a- 18a) is reported at 582 F.3d 490. The order of the Com mission (App., infra, 19a-33a) is reported at 23 F.C.C.R. 13,704.

JURISDICTION

The judgment of the court of appeals was entered on September 22, 2009. A petition for rehearing was denied on November 23, 2009 (App., infra, 45a-46a). On Febru ary 12, 2010, Justice Alito extended the time within which to file a petition for a writ of certiorari to and in cluding March 23, 2010. On March 15, 2010, Justice Alito further extended the time to April 22, 2010. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATUTORY AND REGULATORY

PROVISIONS INVOLVED

Exemption 7(C) of the Freedom of Information Act exempts from mandatory disclosure "records or infor mation compiled for law enforcement purposes, but only to the extent that the production of such law enforce ment records or information * * * (C) could reason ably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. 552(b)(7)(C). Other perti nent provisions are set out in the appendix to the peti tion (App., infra, 47a-60a).

STATEMENT

1. a. In 1966, Congress enacted the Freedom of In formation Act (FOIA), 5 U.S.C. 552, as an amendment to the Administrative Procedure Act (APA), 5 U.S.C. 551 et seq., in order to limit the broad discretion that federal agencies previously had exercised concerning the publi cation of governmental records. DOJ v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 754 (1989) (Reporters Committee); FOIA, Pub. L. No. 89-487, 80

Stat. 250 (amending APA § 3); see Act of June 5, 1967, Pub. L. No. 90-23, 81 Stat. 54 (codifying FOIA as posi tive law at 5 U.S.C. 552). Under FOIA, federal agencies generally must make records available to "any person" who has submitted a "request for [such] records," unless a statutory exemption applies. See 5 U.S.C. 552(a)(3)(A); 5 U.S.C. 552(b) (FOIA exemptions); Re porters Committee, 489 U.S. at 754-755. If an agency fails to comply with its disclosure obligations within FOIA's statutory time limits, 5 U.S.C. 552(a)(6)(A) and (B), the requester may file an action in district court to compel disclosure. 5 U.S.C. 552(a)(4)(B) and (6)(C).

Three FOIA exemptions are relevant to the Court's consideration of the issues in this case. First, Exemp tion 6 applies to "personnel and medical files and similar files" the disclosure of which "would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. 552(b)(6). "Congress' primary purpose in enacting Ex emption 6 was to protect individuals from the injury and embarrassment that can result from the unnecessary disclosure of personal information." Department of State v. Washington Post Co., 456 U.S. 595, 599 (1982). Exemption 6 was designed to strike the "proper balance between the protection of an individual's right of privacy and the preservation of the public's right to Government information." Ibid. (quoting H.R. Rep. No. 1497, 89th Cong., 2d Sess. 11 (1966) (1966 House Report)); see De partment of the Air Force v. Rose, 425 U.S. 352, 372 (1976); DoD v. FLRA, 510 U.S. 487, 495 (1994) (discuss ing "basic principles" governing FOIA).

Second, Exemption 7, as enacted in 1966, exempted "investigatory files compiled for law enforcement pur poses" unless the files were "available by law to a party other than an agency." 5 U.S.C. 552(b)(7) (1970). After courts construed the exemption to cover "all material found in [such] investigatory file[s]," Congress narrowed Exemption 7 in 1974 by enumerating six specific catego ries of law-enforcement records that are exempt from mandatory disclosure. FBI v. Abramson, 456 U.S. 615, 627 & n.11 (1982). As relevant here, one category is en compassed by Exemption 7(C), which exempts from mandatory disclosure records or information compiled for law-enforcement purposes if their production "could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. 552(b)(7)(C).1 "Congress gave special attention to the language in Ex emption 7(C)," National Archives & Records Admin. v. Favish, 541 U.S. 157, 166 (2004), and added its "protec tion for personal privacy" in order to "make clear that the protections in the sixth exemption for personal pri vacy also apply to disclosure under the seventh exemp tion." 120 Cong. Rec. 17,033 (1974) (statement of Sen. Hart).

Finally, Exemption 4 applies to "trade secrets and commercial or financial information obtained from a person and privileged or confidential." 5 U.S.C. 552(b)(4). Because the exemption applies to information "obtained from a person," ibid., and the APA (including FOIA) defines the term "person" to include "an individ ual, partnership, corporation, association, or public or private organization other than [a federal] agency," 5 U.S.C. 551(2). Exemption 4 protects commercial and financial information that the government obtains from a wide variety of sources, including private corporations and public organizations. Exemption 4 protects privi leged and confidential material that "would not custom arily be made public by the person from whom it was obtained," including "business sales statistics, invento ries, customer lists," and "technical or financial data." 1966 House Report 10.

b. "FOIA is exclusively a disclosure statute." Chrysler Corp. v. Brown, 441 U.S. 281, 292 (1979). If one of its exemptions applies, FOIA does not forbid the agency from exercising its "discretion to disclose [the] information." Id. at 292-294. But in what is known as a "'reverse-FOIA' suit[]," id. at 285, a person seeking to prevent an agency's production of records may, in cer tain circumstances, seek judicial review under the APA of a final agency decision to disclose agency records. See id. at 317-318. In such a suit, a court may set aside an agency's decision to disclose if the agency action is "arbitrary, capricious, an abuse of discretion, or other wise not in accordance with law," 5 U.S.C. 706(2)(A). See Chrysler Corp., 441 U.S. at 317-318 (reverse-FOIA suit alleging that disclosure of records was prohibited by the Trade Secrets Act, 18 U.S.C. 1905).

Regulations promulgated by the Federal Communi cations Commission provide that a FOIA requester who seeks FCC records that are exempt from mandatory disclosure under FOIA must specify the "reasons for inspection and the facts in support thereof." 47 C.F.R. 0.461(c); see 47 C.F.R. 0.457. Under the Commission's regulations, if the records contain material submitted to the agency by a third person, the Commission will pro vide a copy of the FOIA request to that person and af ford the person an opportunity to object to disclosure in certain specified circumstances: if the person previously requested that the records be kept confidential (47 C.F.R. 0.459), if the records are exempt under FOIA Exemption 4 (see 47 C.F.R. 0.457(d)), or if the custodian of records has reason to believe that "the information may contain confidential commercial information." 47 C.F.R. 0.461(d)(3); cf. Exec. Order No. 12,600, §§ 1, 3-5, and 8, 3 C.F.R. 235-237 (1988), reprinted in 5 U.S.C. 552 note (directing agencies to provide submitters of certain confidential commercial information with notice of, and an opportunity to object to, agency disclosure). If the records fall within one of FOIA's exemptions and their "disclosure * * * is [not] prohibited by law," the Com mission "will weigh the policy considerations favoring non-disclosure against the reasons cited for permitting inspection" and decide whether to produce the records. 47 C.F.R. 0.457; see 47 C.F.R. 0.461(f)(4).

2. This case arises from a FOIA request for FCC records concerning an investigation involving respon dent AT&T Inc.2 AT&T participated in a federal pro gram, the E-Rate Program, administered by the FCC and designed to improve access to advanced telecommu nications technology by educational institutions. App., infra, 2a. Under the E-Rate Program, AT&T provided equipment and services to elementary and secondary schools and billed the government for the cost. Ibid.

By letter dated August 6, 2004, AT&T informed the Commission that it had discovered "certain irregulari ties" that constituted an "apparent violation of the E- [R]ate rules," resulting in AT&T's over-billing the gov ernment for its services. C.A. App. A22; see App., infra, 2a-3a. On August 24, 2004, the Commission's Enforce ment Bureau (Bureau) issued a Letter of Inquiry to AT&T, notifying the company that the Bureau had initi ated an investigation and ordering AT&T to produce information relevant to that investigation. Id. at 35a, 41a. AT&T disclosed the information as directed. Id. at 41a.

In December 2004, the Bureau terminated its investi gation pursuant to an administrative consent decree. See SBC Commc'ns, Inc., 19 F.C.C.R. 24,014 (Enf. Bur. 2004) (order and consent decree). Under that decree, AT&T, without admitting liability, agreed to pay $500,000 to the government and to institute a two-year compliance plan to ensure future compliance with perti nent FCC rules by all AT&T subsidiaries. Id. at 24,016- 24,019; App., infra, 35a-36a.

3. On April 4, 2005, respondent CompTel, a trade association representing some of AT&T's competitors, submitted a FOIA request to the Commission, seeking "[a]ll pleadings and correspondence contained in" the AT&T E-Rate investigation file. C.A. App. A27. The Commission notified AT&T of the FOIA request, and AT&T submitted an objection to disclosure. See id. at A28.

a. In August 2005, the Bureau granted CompTel's FOIA request in part and denied it in part. App., infra, 34a-44a. The Bureau concluded that portions of the in formation submitted to the FCC by AT&T were pro tected from mandatory disclosure under FOIA Exemp tion 4 because the information "constitute[d] commercial or financial information" that, if disclosed, "could result in substantial competitive harm to [AT&T]." Id. at 41a. Under that exemption, the Bureau declined to disclose "commercially sensitive information," including AT&T's "costs and pricing data, its billing and payment dates, and identifying information of [AT&T's] staff, contrac tors, and the representatives of its contractors and cus tomers." Id. at 41a-42a. The Bureau also concluded that FOIA Exemption 7(C) protected from mandatory disclo sure information in the agency's investigative file that would invade the privacy of individuals, id. at 42a-43a, and explained that it would "withhold the names and identifying information of those individuals." Id. at 43a.3

The Bureau, however, rejected AT&T's argument that Exemption 7(C) protected from mandatory disclo sure all records that the FCC had obtained from AT&T during its investigation. App., infra, 42a-43a. The Bu reau concluded that records that did not implicate the privacy interests of individuals fell outside Exemption 7(C) because AT&T itself did "not possess 'personal pri vacy' interests" protected by that exemption. Ibid.

b. AT&T filed an administrative appeal from the Bu reau's determination, challenging the decision to release the agency's investigative records that the Bureau con cluded were subject to mandatory FOIA disclosure. C.A. App. A47; App., infra, 22a & n.16. In September 2008, the Commission denied AT&T's administrative appeal. Id. at 19a-33a.4

As relevant here, the Commission rejected AT&T's argument that AT&T is a "corporate citizen" with "per sonal privacy" rights protected by Exemption 7(C), that AT&T should therefore be "protected from [a] disclo sure that would 'embarrass' it," and that the FCC should accordingly withhold "all of the documents that [AT&T] submitted" to the FCC. App., infra, 26a (citation omit ted). The agency concluded that "established [FCC] and judicial precedent" showed that the "personal privacy" protected under Exemption 7(C) concerns only the pri vacy interests of individuals, and corporations do not have "'personal privacy' interests within the meaning of [that] [e]xemption." Id. at 26a-28a.

The Commission explained that this Court's decision in Reporters Committee indicated that the "personal privacy" interest protected by both Exemption 6 and Exemption 7(C) is "applicable only to individuals," be cause Reporters Committee relied on Exemption 6 to construe Exemption 7(C) and, as AT&T "admit[ted]," "Exemption 6 applies only to individuals." App., infra, 30a & n.46 (citing AT&T letter brief at C.A. App. A52). The Commission further reasoned that judicial decisions demonstrate that Exemption 7(C)'s purpose is to avoid damage to "personal reputation, embarrassment, and * * * harassment * * * that an individual might suf fer from disclosure." Id. at 29a. Such harms, the Com mission concluded, are distinct from the potential impact of disclosure on a purely "legal entity like a corpora tion." Ibid.

4. The court of appeals granted AT&T's petition for review under the Hobbs Administrative Orders Review Act, 28 U.S.C. 2341 et seq., and remanded for further agency proceedings. App., infra, 1a-18a.5

The court of appeals held, in pertinent part, that "FOIA's text unambiguously indicates that a corpora tion may have a 'personal privacy' interest within the meaning of Exemption 7(C)." App., infra, 13a; see id. at 9a-14a. The court reasoned that "FOIA defines 'person' to include a corporation" and that the term "personal" is "derived" from the word "person" and is simply the "ad jectival form" of that defined term. Id. at 10a-12a (dis cussing APA definition at 5 U.S.C. 551(2)). In light of that view, the court rejected the contention that the statutory phrase "personal privacy" should be construed to reflect the "ordinary meaning" of the word "per sonal." Id. at 12a.

The court of appeals assumed arguendo that FOIA's protection for "personal privacy" in Exemption 6 "ap plies only to individuals (and not to corporations)," but decided that this assumption did not undermine its un derstanding of the scope of "personal privacy" protected by Exemption 7(C). App., infra, 13a. The court rea soned that Exemption 6 expressly applies to "personnel and medical files," 5 U.S.C. 552(b)(6), and that particu lar statutory phrase "limits Exemption 6 to individuals because only individuals (and not corporations) may be the subjects of such files." App., infra, 13a.

Having concluded that "FOIA's text unambiguously" resolved the case, the court of appeals declined to "con sider the parties' arguments concerning statutory pur pose, relevant (but non-binding) case law, and legislative history." App., infra, 13a-14a. The court nevertheless expressed the view that its interpretation advanced Ex emption 7(C)'s purpose by providing privacy protection to corporations because, as the court saw it, "[c]orp orations, like human beings, are routinely involved in law enforcement investigations" and, "like human be ings, face public embarrassment, harassment, and stigma because of that involvement." Id. at 14a n.5. The court also expressed the view that D.C. Circuit decisions indicating that the protections for privacy in Exemp tions 6 and 7(C) apply to "individuals only" were based on atextual considerations that did "not impugn [the Third Circuit's] textual analysis." Id. at 14a n.6. The court accordingly "decline[d] to follow" the D.C. Cir cuit's decisions "to the extent that" they "can be read to conflict with [the] textual analysis" above. Id. at 15a n.6.

The court of appeals declined to examine how "AT&T's 'personal privacy'" should be balanced against any public interest in disclosure, explaining that the Commission had not conducted such Exemption 7(C) balancing in the first instance. App., infra, 15a-16a. The court accordingly "remand[ed] the matter to the FCC with instructions to determine" whether the re quested "disclosure 'could reasonably be expected to constitute an unwarranted invasion of personal privacy.'" Id. at 17a (quoting 5 U.S.C. 552(b)(7)(C)).

REASONS FOR GRANTING THE PETITION

The court of appeals has held that FOIA's statutory protection for "personal privacy" in Exemption 7(C) extends beyond the personal privacy interests of individ uals and protects the so-called "privacy" of inanimate corporate entities. The court based that holding on what it viewed as the meaning of the phrase "personal pri vacy," reasoning that the word "personal" in that phrase must encompass all the types of entities that Congress included within the APA's definition of "person."

Under that reasoning, the "personal privacy" safe guarded by Exemption 7(C) would belong not only to corporations and other private organizations, but also to state, local, and foreign governments and governmental components. Thus, if the Third Circuit's decision is not overturned, federal agencies must attempt to balance previously non-existent "personal privacy" interests of business and governmental entities against the public interest in disclosure to determine whether releasing agency records would constitute an unwarranted inva sion of such "privacy" under Exemption 7(C). The court of appeals' decision finds no support in FOIA's text or any judicial decision construing Exemption 7(C) in the 35 years since its enactment. The court's textual analy sis disregards basic tenets of statutory construction, and it is in significant tension with the D.C. Circuit's long standing interpretation of FOIA's privacy exemptions.

The court of appeals' ruling threatens to revolution ize the manner in which the federal government must process hundreds of thousands of FOIA requests each year.6 Federal agencies have for decades processed FOIA requests under the previously settled understand ing that corporations and other non-human entities have no interest in "personal privacy" protected by FOIA. The court's ruling, if allowed to stand, also threatens to impose barriers to the public disclosure of government records concerning corporate malfeasance in govern ment programs that the public has a right to review. Certiorari is warranted.

I. THE COURT OF APPEALS ERRED IN CONSTRUING EX EMPTION 7(C) TO PROTECT CORPORATE "PERSONAL PRIVACY"

The court of appeals erred in holding that corpora tions possess "personal privacy" interests under FOIA Exemption 7(C). The court reasoned that Congress de fined the term "person" to include corporations and that the phrase "personal privacy" must reflect that defini tion. But Congress did not define the relevant statutory phrase in Exemption 7(C)-"personal privacy"-and that phrase has been uniformly understood since the 1974 enactment of Exemption 7(C) to protect only the privacy interests of individuals. Traditional tools of statutory construction confirm that the prevailing un derstanding of Exemption 7(C) is correct: Corporations do not possess "personal privacy" under FOIA.

A. The meaning of the phrase "personal privacy" in Exemption 7(C) "turns on 'the language itself, the spe cific context in which that language is used, and the broader context of the statute as a whole.'" Nken v. Holder, 129 S. Ct. 1749, 1756 (2009) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997)). Those inter pretive benchmarks-"the bare meaning of the word[s]" and their "placement and purpose in the statutory scheme," Bailey v. United States, 516 U.S. 137, 145 (1995)-demonstrate that Exemption 7(C)'s protection for "personal privacy" extends only to individuals.

1. The word "personal" by itself is most naturally understood to concern individuals alone. Dictionaries reflect that "personal" normally means "of or relating to a particular person" and "affecting one individual or each of many individuals," "relating to an individual," or "relating to or characteristic of human beings as distinct from things." Webster's Third New International Dic tionary 1686 (1966); see The American Heritage Dictio nary of the English Language 978 (1976) ("personal" means "[o]f or pertaining to a particular person; private; one's own personal affairs," and "[c]oncerning a particu lar individual and his intimate affairs"). Under these definitions, characteristics of a corporation, in contrast to those of an individual, would not commonly be under stood to be "personal" traits.

Moreover, when "personal" is joined with the word "privacy" in Exemption 7(C), the resulting statutory phrase invokes background principles that reflect an exclusive focus on individuals. The law ordinarily pro tects personal privacy to safeguard human dignity and preserve individual autonomy. See generally Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890), cited in Reporters Committee, 489 U.S. at 763 n.15 (construing Exemption 7(C)). Such concepts do not comfortably extend to a corporation, which "exist[s] only in contemplation of law" as "an arti ficial being, invisible, [and] intangible." Dartmouth Col lege v. Woodward, 17 U.S. (4 Wheat.) 518, 636 (1819) (Marshall, C.J.); cf. First Nat'l Bank v. Bellotti, 435 U.S. 765, 779 n.14 (1978) (corporations possess no rights that are "purely personal"). Indeed, in other contexts, it is established that a "corporation * * * has no per sonal right of privacy," Restatement (Second) of Torts § 652I cmt. c (1977) (torts for invasion of privacy), and, for at least half a century it has been "generally agreed that the right to privacy is one pertaining only to individ uals." William L. Prosser, Privacy, 48 Cal. L. Rev. 383, 408-409 & n.207 (1960) (citing cases). See also United States v. Morton Salt Co., 338 U.S. 632, 652 (1950) (stat ing that "corporations can claim no equality with individ uals in the enjoyment of a right to privacy" in the Fourth Amendment context).

2. FOIA's broader context likewise demonstrates that Exemption 7(C)'s protection for "personal privacy" applies only to individuals. Congress specifically mod eled Exemption 7(C) on Exemption 6's "personal pri vacy" exemption, which itself protects only the privacy interests of individuals.

"[I]dentical * * * phrases within the same statute should normally be given the same meaning." Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224, 232 (2007). That interpretive rule has particular force here, because Congress transferred the phrase "personal pri vacy" from Exemption 6 to Exemption 7(C) in order to "make clear that the protections in the sixth exemption for personal privacy also apply to disclosure under" Ex emption 7. 120 Cong. Rec. at 17,033 (statement of Sen. Hart); see id. at 17,040 (memorandum letter of Sen. Hart); cf. FBI v. Abramson, 456 U.S. 615, 627 n.11 (1982) (discussing Senator Hart's role as "the sponsor of the 1974 amendment").

Exemption 6, in turn, has long been interpreted as applying only to individuals. This Court has emphasized that "Congress' primary purpose in enacting Exemption 6 was to protect individuals from the injury and embar rassment that can result from the unnecessary disclo sure of personal information." Department of State v. Washington Post Co., 456 U.S. 595, 599 (1982). Accord ingly, the process of determining whether a disclosure would result in a "clearly unwarranted" invasion of per sonal privacy triggering the exemption "require[s] a balancing of the individual's right of privacy against" the public interest in disclosure. Department of the Air Force v. Rose, 425 U.S. 352, 372 (1976) (emphasis added). That specific focus on the individual derives directly from Congress's declared purpose to avoid "harm [to] the individual" from unwarranted disclo sure. Washington Post Co., 456 U.S. at 599 (quoting 1966 House Report 11); see S. Rep. No. 813, 89th Cong., 1st Sess. 9 (1965) (Exemption 6 is designed to "protect[] * * * an individual's private affairs from unnecessary public scrutiny.").

Exemption 6's focus on the interest of real persons was clearly established in 1974, when Congress incorpo rated Exemption 6's "personal privacy" protection into Exemption 7(C). By 1970, the leading treatise on admin istrative law and FOIA had concluded that "a corpora tion cannot claim 'personal privacy'" under Exemption 6 because the phrase "'personal privacy' always relates to individuals." Kenneth Culp Davis, Administrative Law Treatise § 3A.22, at 163-164 (1970 Supp.). Profes sor Davis explained that the APA's "definition of 'per son'" was "irrelevant" in this context because Congress "d[id] not use that term" in Exemption 6. Ibid. (Con gress used "the statutory language of 'personal pri vacy,' " not "the privacy of any person"); see John A. Hoglund & Jonathan Kahan, Note, Invasion of Privacy and the Freedom of Information Act: Getman v. NLRB, 40 Geo. Wash. L. Rev. 527, 540 (1972) (emphasizing that "the interest exemption 6 seeks to safeguard is that of individual privacy"); id. at 529-530 & nn.19-20 (examin ing legislative history).

Courts similarly emphasized that the "personal pri vacy" protected under Exemption 6 was limited to the privacy of individuals. Based on the "statute and its legislative history," lower courts had determined that the exemption required a balancing of "the potential invasion of individual privacy" against "a public inter est purpose for disclosure of [the] personal information." Wine Hobby USA, Inc. v. IRS, 502 F.2d 133, 136 & n.12 (3d Cir. 1974) (emphasis added) (quoting Getman v. NLRB, 450 F.2d 670, 677 n.24 (D.C. Cir. 1971)); accord Rural Housing Alliance v. USDA, 498 F.2d 73, 77 & n.13 (D.C. Cir. 1974) (Exemption 6 is "designed to pro tect individuals from public disclosure of intimate details of their lives"); Getman, 450 F.2d at 674 & n.10 (Exemp tion 6 protects "the right of privacy of affected individu als"); see also Rose v. Department of the Air Force, 495 F.2d 261, 269 (2d Cir. 1974) (The "statutory goal of Ex emption Six" is "a workable compromise between indi vidual rights 'and the preservation of public rights to Government information'") (citation omitted), aff'd, 425 U.S. 352 (1976).

This Court "can assume that Congress legislated against this background of law, scholarship, and history * * * when it amended Exemption 7(C)" in 1974. Na tional Archives & Records Admin. v. Favish, 541 U.S. 157, 169 (2004). In fact, the Congressional Record dem onstrates that the prevailing interpretation of "personal privacy" was apparent to Congress in 1974. After Sena tor Hart proposed Exemption 7(C) and emphasized that it would, if enacted, extend Exemption 6's "protection for personal privacy" into the law-enforcement-record context, 120 Cong. Rec. at 17,033, a colleague introduced into the record a decision expressly holding that "the right to privacy envisioned in [Exemption 6] is personal and cannot be claimed by a corporation or association." Id. at 17,045 (reprinting Washington Research Project, Inc. v. HEW, 366 F. Supp. 929, 937-938 (D.D.C. 1973) (holding that the identity of organizations, unlike the "identity of * * * individuals," cannot be withheld un der Exemption 6), aff'd in part on other grounds, 504 F.2d 238 (D.C. Cir. 1974)).

In the wake of the 1974 enactment of Exemption 7(C), Attorney General Edward Levi issued an interpre tive memorandum concluding that Congress's use of "[t]he phrase 'personal privacy' [in Exemption 7(C)] per tains to the privacy interests of individuals" and "does not seem applicable to corporations or other entities." U.S. Dep't of Justice, Attorney General's Memorandum on the 1974 Amendments to the Freedom of Information Act 9 (1975) (1975 FOIA Memorandum). The memoran dum, which this Court has repeatedly cited as a reliable interpretation of the 1974 amendments, see Favish, 541 U.S. at 169; Abramson, 456 U.S. at 622 n.5, further ex plained that Exemption 7(C) should be interpreted in light of "the body of court decisions" that interpret Ex emption 6. See 1975 FOIA Memorandum 9.7

3. In the more than 35 years since the enactment of Exemption 7(C), until the decision below, there was unanimity among courts and commentators that the "personal privacy" protections in Exemptions 6 and 7(C) apply only to individuals. The D.C. Circuit, which has jurisdiction of appeals from the district court that has universal jurisdiction over FOIA actions, see 5 U.S.C. 552(a)(4)(B), has repeatedly emphasized that "busi nesses themselves do not have protected privacy inter ests under Exemption 6." Multi AG Media LLC v. USDA, 515 F.3d 1224, 1228 (2008); see Sims v. CIA, 642 F.2d 562, 572 n.47 (D.C. Cir. 1980) ("Exemption 6 is ap plicable only to individuals."); National Parks & Conser vation Ass'n v. Kleppe, 547 F.2d 673, 685 n.44 (D.C. Cir. 1976) ("The sixth exemption has not been extended to protect the privacy interests of businesses or corpora tions."). And in Washington Post Co. v. DOJ, 863 F.2d 96, 100 (D.C. Cir. 1988), the court concluded that Exemption 7(C) provides no privacy protection for "[i]nformation relating to business judgments and rela tionships." Those decisions reflect judicial recognition that both exemptions protect the same interest in "personal privacy,"8 which does not encompass a purely cor porate interest in confidentiality.9

Similarly, in 1981, then-Professor Scalia testified that "[p]erhaps the most significant feature" of the 1974 FOIA amendments to Exemption 7 was that they did not protect "what might be called associational or institu tional privacy" from requests under FOIA for disclosure of investigatory records about "corporations, unions," and other "independent institutions." 1 Freedom of In formation Act: Hearings Before the Subcomm. on the Constitution of the Senate Comm. on the Judiciary, 97th Cong., 1st Sess. 957-958 (1981). The Exemption 7 amendments, he explained, gave no "protection [to] those institutions' deliberate and consultative processes" and enabled FOIA requesters to "impair[]" the "privacy * * * of [such] institutions." Id. at 958. See also 1 Richard J. Pierce, Jr., Administrative Law Treatise § 5.12, at 373 (2010) (Exemption 6 "does not extend to information concerning corporations" because it "pro vides a qualified exemption only for 'personal pri vacy.'").

4. The structure of FOIA's other exemptions further confirms that Exemption 7(C) protects only the privacy of individuals. Corporations have a legitimate interest in preserving the secrecy of certain information, and Congress addressed the need to do so through a specific, circumscribed exemption. Congress enacted Exemption 4 to protect from mandatory disclosure "trade secrets and commercial or financial information obtained from a person and privileged or confidential." 5 U.S.C. 552(b)(4). Congress's enactment of an exemption for commercial information (Exemption 4) at the same time as its adoption of a general exemption for "personal pri vacy" (Exemption 6) demonstrates that its subsequent incorporation of "personal privacy" into Exemption 7's law-enforcement context was not intended to protect organizations with business interests.

B. The court of appeals did not dispute that the "or dinary" meaning of "personal privacy" excludes corpo rate secrecy. App., infra, 12a. It concluded instead that Exemption 7(C) diverges from that normal understand ing because the APA defines the term "person" to in clude corporations and that "defined term" is "the root from which the statutory word at issue [(personal)] is derived." Ibid. That analysis, which led the court to conclude that "FOIA's text unambiguously" shows that corporations possess "personal privacy," id. at 13a, does not withstand scrutiny.

1. As Professor Davis explained, the statutory defi nition of "person" is "irrelevant." See p. 17, supra. The term "person" does not appear in Exemption 7(C), which instead uses the undefined phrase "personal privacy." Had Congress intended in Exemption 7(C) to invoke the APA's definition of "person" and protect the "privacy of a person," it would have used words to that effect. Cf. 5 U.S.C. 552(b)(4) (protecting "trade secrets or commer cial or financial information obtained from a person"), 552(b)(7)(B) (protecting law-enforcement records that "would deprive a person of a right to a fair trial or an impartial adjudication").

The linguistic relationship between the words "per son" and "personal"-i.e., that the former is the "root" of the latter, App., infra, 12a-cannot itself support the Third Circuit's holding.10 When Congress specifically intends to extend a statutory definition to such "vari ants" of a defined term, it has enacted definitional lan guage that reflects this intent. See, e.g., 15 U.S.C. 3802(f) (extending definition to "any variant" of defined term); 17 U.S.C. 101, 111(f); 33 U.S.C. 1122; 42 U.S.C. 7703(1) and (3); 45 U.S.C. 702(10), 802(5). And in the absence of such a provision, the meaning of such a "vari ant," as of any other term, "is a creature not of defini tional possibilities but of statutory context." Brown v. Gardner, 513 U.S. 115, 118 (1994). Indeed, "it is a 'funda mental principle of statutory construction * * * that the meaning of a word cannot be determined in isolation, but must be drawn from the context in which it is used.'" Textron Lycoming Reciprocating Engine Div. v. United Auto. Workers, 523 U.S. 653, 657 (1998) (Textron) (cita tions omitted).

Viewed in light of that principle, the error of the Third Circuit's decision becomes clear. The phrase "personal privacy" must be understood as a textual unit. See Textron, 523 U.S. at 656-657 (explaining that the term "for" cannot be properly understood in isolation from "the meaning of '[s]uits for violation of con tracts'"). And the phrase must additionally "be read in [its] context and with a view to [its] place in the overall statutory scheme.'" FDA v. Brown & Williamson To bacco Corp., 529 U.S. 120, 133 (2000) (citation omitted). Given its context and purpose in the overall framework of FOIA, the term "personal privacy" refers only to the interest of individuals, and not of corporations. See pp. 14-19, supra.

2. The logical implications of the Third Circuit's analysis also underscore the flaws in its decision. The APA defines "person" to include not only an individual and a corporation but also a "public * * * organization other than [a federal government] agency." 5 U.S.C. 551(2). Foreign, state, and local governments and gov ernmental entities therefore are deemed "persons" un der the APA and FOIA.11 The Third Circuit's rationale would entitle all such entities to "personal privacy" un der Exemption 7(C). It would be exceedingly difficult to identify the parameters of a government agency's so- called "personal privacy," and still more to determine whether disclosure would "constitute an unwarranted invasion" of that privacy, 5 U.S.C. 552(b)(7)(C), by bal ancing this wholly non-intuitive privacy interest against the public interest in disclosure. Such an endeavor would place federal agencies and the courts in uncharted waters, and there is no reason to believe that Congress intended that extraordinary result.

The court of appeals asserted that, like an individual, a corporation can suffer "public embarrassment, harass ment, and stigma." App., infra, 14a n.5. But beyond this attempted personification of an entity whose very existence is a legal construct, the court of appeals pro vided no insight into how a corporation's experience of "personal privacy" is analogous to that of an individual. FOIA Exemption 7(C) protects the privacy of a corpora tion's employees, and Exemption 4 protects the corpora tion's confidential commercial information. The FCC properly withheld such information from disclosure un der both provisions. Id. at 40a-43a. There is no basis for withholding the balance of the FCC's investigative file in the name of a freestanding concept of corporate dignity or autonomy or other attribute of "personal pri vacy" as that term is understood with reference to hu man beings.

3. Finally, the court of appeals erred in concluding that, even if "Exemption 6 applies only to individuals," the term "personal privacy" in Exemption 7(C) properly extends to corporations. App., infra, 13a. The court indicated that its understanding of the phrase "personal privacy" would apply uniformly to both provisions but that the separate "phrase 'personnel and medical files'" in Exemption 6 might limit that exemption "to individu als because only individuals (and not corporations) may be the subjects of such files." Ibid. That distinction does not withstand analysis.

The disclosure of personnel and medical files may reveal information about corporations and their internal affairs as well as about individuals. Such files, for exam ple, may disclose whether a company discriminated against its employees or has a pattern of providing sub- standard medical care. Moreover, Exemption 6 applies to individuals who are not the subject of the specific files. The exemption concerns records on an individual that can be "identified as applying to that individual" and therefore can implicate her privacy interests; it does not "turn upon the label of the file" itself. Washington Post Co., 456 U.S. at 601-602 (citation omitted); cf. Favish, 541 U.S. at 166 (explaining that Exemption 7(C) protects individuals whose personal information is in law-enforcement files by "mere happenstance"). The phrase "personnel and medical files" therefore cannot justify limiting Exemption 6 to the privacy of individuals if "personal privacy" encompasses corporate privacy interests. Both Exemptions 6 and 7(C) protect only indi viduals because each includes the same term-"personal privacy"-imposing that limitation. Cf. Reporters Com mittee, 489 U.S. at 768-770 (applying Exemption 6 pre cedents to analyze an "invasion of privacy" under Ex emption 7(C)).

In sum, the Third Circuit's Exemption 7(C) ruling failed to examine the context of FOIA's exemptions, made no effort to explore the lengthy history behind Exemption 6 and 7(C), and offered no convincing textual rationale for its holding. Moreover, the court of appeals did not dispute that its extension of "personal privacy" protection to a corporation was in tension with the deci sions of the D.C. Circuit; it instead stated that it "decline[d] to follow" the D.C. Circuit's cases "to the extent that [they] can be read to conflict with [the Third Circuit's] textual analysis" of "personal privacy." App., infra, 15a n.6. Review is warranted to correct the court of appeals' unprecedented departure from 35 years of uniform FOIA jurisprudence and commentary interpret ing "personal privacy" as limited to individuals.

II. THE COURT OF APPEALS' RULING THREATENS SIGNIFICANT ADVERSE CONSEQUENCES.

The Third Circuit's decision threatens to disrupt the government's administration of FOIA-under which hundreds of thousands of request are filed annually-by dramatically expanding the scope of "personal privacy" interests for FOIA officers to evaluate in responding to requests.

By declaring that a corporation (presumably like any APA "person") possesses "personal privacy" rights un der Exemption 7(C), the court of appeals has altered a tenet of FOIA law under which the government has op erated for decades. Federal agencies routinely collect information from companies as a result of law-enforce ment or regulatory investigations. But agencies have never considered, in processing FOIA requests, whether this information invades so-called corporate privacy in terests. Instead, agencies have processed FOIA re quests pursuant to the uniform body of jurisprudence confirming that "personal privacy" belongs only to indi viduals and not to corporations or other entities. The court of appeals' ruling thus throws longstanding FOIA practices and procedures into doubt on a government- wide basis. The decision may require numerous signifi cant changes in the administration of FOIA in order to accommodate a hitherto unknown set of privacy inter ests.12

The new consideration of "corporate personal pri vacy" likely will also result in the withholding of agency records to which the public should have access, including records documenting corporate malfeasance. At the least, the creation of this new category of privacy inter ests will increase the burden on agencies of processing and potentially litigating FOIA requests. The decision will undoubtedly spawn objections to FOIA disclosure from companies (or other "persons") that desire the gov ernment's investigation of their possible malfeasance to remain secret. And conversely, the decision will gener ate a new class of FOIA litigation by requesters seeking to restrict the as-yet-undefined category of "personal privacy" held by corporations.

In addition, the new and significant tension between Third Circuit and D.C. Circuit precedent creates espe cial problems with respect to FOIA litigation. Suits to compel an agency to disclose documents under FOIA may always be brought in the D.C. District Court. 5 U.S.C. 552(a)(4)(B). A FOIA requester seeking agency records that concern a corporation may there fore bring a FOIA suit that will be governed by D.C. Circuit precedent, which does not recognize corporate "personal privacy" interests. Reverse-FOIA actions under the APA, in turn, may normally be brought where the plaintiff resides or has its principal place of busi ness. See 28 U.S.C. 1391(e) (district court fora); 28 U.S.C. 2343 (court of appeals fora for Hobbs Act cases). Any corporation or entity having a principal place of business in the Third Circuit (which includes Delaware, New Jersey, and Pennsylvania) may therefore elect a forum for a reverse-FOIA action in which the Third Cir cuit's decision would be binding precedent. As a result, an agency attempting to comply with FOIA will have no way of knowing in advance in which judicial forum-or fora if simultaneous suits are filed-it must defend its decision or which lower court precedents will govern that defense, as this case itself reflects. See p. 8 note 4, supra (discussing CompTel's FOIA action in the District of Columbia). The Third Circuit's unprecedented deci sion will therefore impose substantial legal uncertainty on federal agencies attempting to process vast volumes of FOIA requests.

Certiorari is warranted to restore the interpretation of "personal privacy" that has governed Exemption 7(C) since its enactment.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

ELENA KAGAN
Solicitor General
TONY WEST
Assistant Attorney General
EDWIN S. KNEEDLER
Deputy Solicitor General
ANTHONY A. YANG
Assistant to the Solicitor
General
LEONARD SCHAITMAN
HENRY C. WHITAKER
Attorneys

AUSTIN C. SCHLICK
General Counsel
DANIEL M. ARMSTRONG
Associate General Counsel
MICHAEL A. KRASNOW
Counsel
Federal Communications
Commission

APRIL 2010

1 Congress amended Exemption 7(C) to take its present form in 1986, but did not alter the type of "personal privacy" necessary to invoke the exemption. See Reporters Committee, 489 U.S. at 756 & n.9, 777 n.22.

2 At the time of the FCC's investigation, respondent AT&T was known as SBC Communications, Inc. See App., infra, 19a n.1. To avoid confusion, this petition consistently refers to that respondent as AT&T.

3 The agency further concluded that internal agency records were exempt from disclosure under Exemption 5. App., infra, 43a.

4 CompTel also filed an administrative appeal from the Bureau's determination. App., infra, 22a & n.16. By October 5, 2006, CompTel had constructively exhausted its administrative remedies because the FCC had not resolved its administrative appeal within FOIA's 20-day period for rendering a decision. See 5 U.S.C. 552(a)(6)(A)(ii) and (C)(i). On that date, CompTel initiated a FOIA action in the United States District Court for the District of Columbia to compel disclosure. App., infra, 23a & n.17. In light of CompTel's pending lawsuit and its conclusion that "FOIA permits such actions," the Commission did not address the merits of CompTel's administrative appeal. Ibid.

Meanwhile, AT&T intervened in CompTel's FOIA action, which the district court stayed pending the FCC's resolution of AT&T's adminis trative appeal. See App., infra, 23a & n.19. The district court explained that AT&T had asserted a reverse-FOIA claim against the FCC in district court, but that APA review was unavailable at that time because the FCC had yet to take "final agency action" subject to judicial review. CompTel v. FCC, Civ. No. 06-1718 (D.D.C. Mar. 5, 2008), slip op. 4 (citing 5 U.S.C. 704). Although the court noted that it had authority to decide CompTel's FOIA claim, it concluded that judicial economy warranted a stay until "there is a final agency action on AT&T's intra- agency appeal," in order to "permit[] the court to simultaneously address the issues raised by [all parties]." Id. at 6. The district court subsequently denied CompTel's motion to compel a final agency decision within 30 days. CompTel v. FCC, Civ. No. 06-1718 (D.D.C. May 5, 2008) (order). No further action has been taken in CompTel's FOIA case, which does not affect the question presented in this petition.

5 The Hobbs Act vests the courts of appeals with exclusive jurisdic tion over petitions for review of certain agency orders. 28 U.S.C. 2342. The "nature and attributes of judicial review" under the Hobbs Act are governed by the APA's judicial-review provisions. ICC v. Brotherhood of Locomotive Eng'rs, 482 U.S. 270, 282 (1987); see id. at 277 (citing APA standard of review in 5 U.S.C. 706(2)(A)).

Consistent with the government's position, the court of appeals concluded that it possessed Hobbs Act jurisdiction over this reverse- FOIA action because AT&T's suit challenged an "order of the Commis sion under [the Communications Act of 1934, 47 U.S.C. 151 et seq.]," 47 U.S.C. 402(a). See App., infra, 6a-7a. The court explained that AT&T's challenge to the Commission's order regarding disclosure based on that order's alleged inconsistency with FCC regulations was a challenge subject to Hobbs Act review, see 28 U.S.C. 2342(1), and that "[c]ourts

have consistently held that an [FCC] order" allegedly violating FCC regulations is subject to such review. App., infra, 7a & n.2.

6 In fiscal year 2008, the most recent year for which data has been compiled, the government received more than 605,000 FOIA requests and expended approximately $338 million on FOIA-related activities. See U.S. Dep't of Justice, Office of Information Policy, FOIA Post: Summary of Annual FOIA Reports for Fiscal Year 2008, http://www. justice.gov/oip/foiapost/2009foiapost16.htm.

7 Attorney General Levi's 1975 memorandum reflected an evolution in the Department of Justice's understanding of Exemption 6. In 1967, one year after Congress enacted FOIA, Attorney General Ramsey Clark described Exemption 6 as protecting "the privacy of any person" and stated that "the applicable definition of 'person,' which is found in section 2(b) of the Administrative Procedure Act, would include corporations and other organizations as well as individuals." U.S. Dep't of Justice, Attorney General's Memorandum on the Public Informa tion Section of the Administrative Procedure Act 36-37 (1967) (1967 FOIA Memorandum). Attorney General Clark then qualified his statement by observing that Exemption 6 normally would protect "the privacy of individuals rather than of business organizations." Id. at 37.

That initial description of Exemption 6 was promptly criticized as premised on an erroneous view that the statute protected "the privacy of any person," even though Congress employed the phrase "personal privacy" and did "not use th[e] term" "person." Kenneth Culp Davis, The Information Act: A Preliminary Analysis, 34 U. Chi. L. Rev. 761, 799 (1967). Moreover, the Attorney General's description found no support in the legislative history cited in his analysis, which described Exemption 6 as protecting the "individual's right of privacy" and preventing "harm [to] the individual." 1967 FOIA Memorandum 36 (quoting 1966 House Report 11). No court subsequently endorsed this aspect of the Attorney General's analysis, and by 1974 courts and commentators had concluded that Exemption 6 protected individuals alone. See pp. 16-18, supra. In 1975, General Levi agreed with the uniform body of law and commentary and concluded that "[t]he phrase 'personal privacy' * * * does not seem applicable to corporations." 1975 FOIA Memorandum 9.

8 See, e.g., Forest Serv. Employees for Envtl. Ethics v. USFS, 524 F.3d 1021, 1024 n.2 (9th Cir. 2008) ("[T]he only distinction between the balancing tests applied [by Exemptions 6 and 7(C)] is the 'magnitude of the public interest' required to override the respective privacy interests they protect."); Horowitz v. Peace Corps, 428 F.3d 271, 279 & n.2 (D.C. Cir. 2005) (analyzing Exemption 6 "privacy interest" based on Exemp tion 7(C) decisional law; explaining that "the difference between the standards for the two exemptions 'is of little import' except when analyzing 'the magnitude of the public interest that is required to override the respective privacy interests protected by the exemp tions' ") (quoting DoD, 510 U.S. at 496 n.6); FLRA v. Department of Veterans Affairs, 958 F.2d 503, 510 (2d Cir. 1992) (explaining that the balance between personal privacy and any public interest in disclosure is different under Exemptions 6 and 7(C), but that the "degree of invasion to a privacy interest" necessary to trigger that balance is the same).

9 Agency records concerning corporations will sometimes implicate "personal privacy" and therefore may be withheld on the ground that disclosure could constitute an unwarranted invasion of the privacy interests of an individual. For instance, Exemptions 6 and 7(C) "appl[y] to financial information in business records when the business is individually owned or closely held and 'the records would necessarily reveal at least a portion of the owner's personal finances.'" Multi AG Media LLC, 515 F.3d at 1228-1229 (Exemption 6) (citation omitted); see Consumer's Checkbook v. HHS, 554 F.3d 1046, 1051 (D.C. Cir. 2009) (Exemption 6), cert. denied, No. 09-538 (Apr. 19, 2010).

10 Congress's use of the word "personnel" in "personnel * * * files," 5 U.S.C. 552(b)(6), for instance, shares the same "root" as "personal," but "personnel," unlike the APA definition of "person," cannot encompass a corporation.

11 See Maryland Dep't of Human Res. v. HHS, 763 F.2d 1441, 1445 n.1 (D.C. Cir. 1985); see also Kansas v. United States, 249 F.3d 1213, 1221-1222 (10th Cir. 2001); Stone v. Export-Import Bank, 552 F.2d 132, 136-137 (5th Cir. 1977) (foreign governmental agency); cf. e.g., Bowen v. Massachusetts, 487 U.S. 879, 892-893 (1988) (concluding that a State was a "person suffering legal wrong because of agency action," 5 U.S.C. 702); 5 U.S.C. 701(b)(2) (adopting definition of "person" in 5 U.S.C. 551(2)). Congress recognized that foreign governments are "persons" that could invoke FOIA, cf. 5 U.S.C. 552(a)(3)(A), and amended FOIA to ensure that the U.S. intelligence community would not produce agency records in response to FOIA requests from such "persons." See 5 U.S.C. 552(a)(3)(E).

12 For example, an agency processing FOIA requests under its governing regulations not infrequently must determine whether a FOIA exemption applies to the specific documents requested. See, e.g., 10 C.F.R. 9.17(a), 9.25(f) (Nuclear Regulatory Commission); 10 C.F.R. 1004.7(a) and (b)(1) (Department of Energy); 12 C.F.R. 4.12(a) and (b) (Office of the Comptroller of the Currency); 29 C.F.R. 102.117(a)(1), (c)(2)(iii) and (v) (NLRB); 45 C.F.R. 5.33(a), 5.61 (HHS). Under the Third Circuit's holding, an agency making this determination now must analyze whether disclosure would implicate a corporation's privacy interest. And even when an exemption does apply and FOIA does not compel disclosure, an agency's decision whether to exercise discretion to release agency records may turn on the agency's evaluation of the interests protected by FOIA's exemptions. See, e.g., 10 C.F.R. 9.25(f) (authorizing discretionary release of records that are subject to a FOIA exemption if disclosure "will not be contrary to the public interest and will not affect the rights of any person"); 29 C.F.R. 102.117(a)(1) (authorizing discretionary release of certain records if "disclosure would not foreseeably harm an interest protected by a FOIA exemp tion"); 45 C.F.R. 5.2 (stating general policy of providing "the fullest responsible disclosure consistent with" the need for confidentiality "recognized in [FOIA]" and "the legitimate interests of organizations or persons * * * affected by [the] release"). But cf. 10 C.F.R. 1004.1 (authorizing discretionary release when agency "determines that such disclosure is in the public interest"); 12 C.F.R. 4.12(c) (authorizing discretionary release on a "case-by-case basis").

In this case, for instance, the FCC's regulations "outline[]" the "underlying policy considerations" justifying withholding under each FOIA exemption (e.g., "personal privacy") and specify that, when an exemption authorizes the Commission to withhold the requested records, the Commission "will weigh [such] policy considerations favoring non-disclosure" against the reasons favoring disclosure. 47 C.F.R. 0.457 and (g)(3), 0.461(f)(4). If an agency decision to disclose documents fails to analyze the interests at stake as specified in such regulations, its disclosure order may be set aside on APA review as "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," 5 U.S.C. 706(2)(A). In this case, the court of appeals directed the Commission to evaluate AT&T's purported interest in "personal privacy" under the Commission's regulations. See App., infra, 7a & n.2, 15a-16a.

 

1. APPENDIX A

 

2. UNITED STATES COURT OF APPEALS

3. FOR THE THIRD CIRCUIT

 

 

 

 

No. 08-4024

4. AT&T INC, PETITIONER

v.

5. FEDERAL COMMUNICATIONS COMMISSION; UNITED STATES OF AMERICA, RESPONDENT

 

6. COMPTEL, INTERVENOR

 

 

 

 

[Filed: Sept. 22, 2009]

 

 

 

 

On Petition for Review of an Order of the

Federal Communications Commission

 

 

 

 

OPINION OF THE COURT

 

 

 

 

Before: FUENTES, CHAGARES, and TASHIMA1, Circuit Judges.

CHAGARES, Circuit Judge.

The Freedom of Information Act ("FOIA"), 5 U.S.C. §§ 551-59 [sic], requires a federal agency to disclose cer

tain documents within its possession. But FOIA ex empts from mandatory disclosure "records or informa tion compiled for law enforcement purposes . . . to the extent that the production of such law enforcement re cords or information . . . could reasonably be expected to constitute an unwarranted invasion of personal pri vacy," § 552(b)(7)(C) ("Exemption 7(C)"), and defines "person" to "include an individual, partnership, corpora tion, association, or public or private organization other than an agency," § 551(2). Human beings have such "personal privacy." This case requires us to determine whether corporations do, as well.

AT&T, Inc. ("AT&T") argued that the Federal Com munications Commission ("FCC") could not lawfully release documents obtained during the course of an in vestigation into an alleged overcharging on the ground that disclosure would likely invade the company's "per sonal privacy." The FCC rejected AT&T's argument and held that a corporation, as a matter of law, has no "personal privacy" in the first place. AT&T filed a peti tion for review. We will grant the petition and remand to the FCC for further proceedings.

I.

AT&T participated in a federal program adminis tered by the FCC, called "E-Rate," that was designed to increase schools' access to advanced telecommunications technology. As part of the program, AT&T provided equipment and services to elementary and secondary schools, and then billed the Government for the cost of the equipment and services. In August 2004, AT&T dis covered that it might have overcharged the Government for certain work done for the New London, Connecticut school district. AT&T voluntarily reported the matter to the FCC, and the FCC's Enforcement Bureau ("Bu reau") conducted an investigation. The two sides ulti mately resolved the matter via a consent decree.

During the course of the investigation, the Bureau ordered AT&T to produce, and the company did indeed produce, a range of documents related to its work with the New London schools. Those documents included invoices, internal e-mails providing pricing and billing information for the work done in New London, re sponses to Bureau interrogatories, names of employees involved in the allegedly improper billing, and AT&T's own assessment of whether and to what extent the em ployees involved in the overcharging violated its internal code of conduct.

On April 4, 2005, CompTel, a trade association repre senting some of AT&T's competitors, submitted a FOIA request for "[a]ll pleadings and correspondence con tained in" the Bureau's AT&T E-Rate investigation file. Appendix ("App.") 27. AT&T submitted a letter to the Bureau opposing CompTel's request, arguing that the FCC collected the documents that AT&T produced for law enforcement purposes and therefore that the FCC regulations implementing FOIA's exemptions prohibited disclosure. CompTel submitted a reply letter.

On August 5, 2005, the Bureau issued a letter-ruling rejecting AT&T's argument that Exemption 7(C) and the FCC's regulations implementing that exemption prohibit disclosure. That exemption, the Bureau held, does not apply to corporations because corporations lack "personal privacy." AT&T filed an application request ing the FCC to review the Bureau's ruling. On Septem ber 12, 2008, the FCC issued an order denying the appli cation and compelling disclosure, again on the ground that Exemption 7(C) does not apply to corporations.

Before addressing the merits, the FCC held that AT&T failed to comply with the FCC's regulations in filing its application for review of the Bureau's order. Generally, only a FOIA requester may file an applica tion for the FCC to review the Bureau's resolution of that request. But, there is an exception. According to 47 C.F.R. § 0.461(i)(1), when a FOIA request for inspec tion of records submitted in confidence pursuant to §§ 0.457(d) or 0.459 is granted (even if only in part), the submitter of the information-in addition to the re quester-may file an application for review. The FCC determined, however, that AT&T did not submit the material it provided to the FCC in confidence pursuant to either of those regulations, because AT&T failed to include with that material a request that the FCC treat that material as confidential. Nevertheless, the FCC stated that it would, "on [its] own motion," consider the merits of AT&T's application for review. App. 10.

The FCC then held that a corporation lacks "per sonal privacy" within the meaning of Exemption 7(C). It determined that FCC precedent supports this view, App. 10 (citing Chadmoore Commc'n, Inc., 13 FCC Rcd. 23943, 23946-47 ¶ 7 (1998)), as does judicial precedent, App. 11-12 (citing U.S. Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 756 (1989); Wash. Post Co. v. U.S. Dep't of Justice, 863 F.2d 96, 100-01 (D.C. Cir. 1988); Cohen v. EPA, 575 F. Supp. 425, 429-30 (D.D.C. 1983)). The FCC also concluded that this interpretation accords with the Exemption's purpose to protect key players in an investigation- targets, witnesses, and law enforcement officers-from the "literal embarrassment and danger" that an individ ual might suffer, rather than from the "more abstract impact" that a corporation might suffer. App. 12. The FCC stated that a corporation's privacy interests in other contexts-such as Fourth Amendment search-and- seizure law and the discovery regime created by the Federal Rules of Civil Procedure-have no bearing on whether a corporation has a privacy interest in the con text of Exemption 7(C). App. 13.

AT&T filed a petition for review of the FCC's order, arguing that the FCC incorrectly interpreted Exemp tion 7(C) to prevent a corporation from claiming a "per sonal privacy" interest. AT&T further argues that, should we interpret the statute to allow a corporation to claim a "personal privacy" interest, disclosure of AT&T's documents is, as a matter of law, reasonably likely to constitute an "unwarranted invasion" of that interest. The FCC and CompTel (who entered this case as an intervenor) oppose on the merits and also raise certain threshold issues. CompTel argues that this Court lacks subject matter jurisdiction over AT&T's petition for review and therefore must dismiss. The FCC argues that we should deny the petition for review because AT&T failed to challenge the FCC's determina tion that AT&T did not comply with certain procedural requirements during the administrative proceedings.2

II.

The FCC had jurisdiction to issue its order denying AT&T's application for review. See 47 U.S.C. §§ 154(i) (providing that the FCC "may perform any and all acts, make such rules and regulations, and issue such orders, not inconsistent with [the Communications Act of 1934 ("Communications Act"), 47 U.S.C. §§ 151-615b], as may be necessary in the execution of its functions"), 155(c)(5) (authorizing the FCC to adjudicate applications for re view of order issued by delegated panel). CompTel ar gues that we lack appellate jurisdiction. We disagree.

CompTel asserts that because the Administrative Procedure Act ("APA") confers AT&T's cause of action, and because 28 U.S.C. § 1331 provides jurisdiction to review an APA claim, the district courts have jurisdic tion to hear AT&T's petition for review. CompTel ac knowledges that 28 U.S.C. § 2342(1) gives the courts of appeals exclusive jurisdiction over orders "under" the Communications Act within the meaning of 47 U.S.C. § 402(a), but argues that the FCC's order in this matter is not such an order.

CompTel made this argument for the first time to this Court in opposing AT&T's petition for review (which is the first time it could have made this argu ment). Therefore, there is no decision on this issue to review, and we will address the issue in the first in stance.

Section 2342 provides that "[t]he court[s] of appeals . . . ha[ve] exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the valid ity of-(1) all final orders of the [FCC] made reviewable by section 402(a) of title 47." 28 U.S.C. § 2342(1). A "final order[] of the [FCC] made reviewable by section 402(a) of title 47," § 2342(1), is, with certain exceptions not relevant here, "an[] order of the [FCC] under th[e Communications] Act . . . . " 47 U.S.C. § 402(a). Thus, we have jurisdiction to review the FCC's order adjudicating AT&T's application for review if that order is an order "under" the Communications Act.

Courts have consistently held that an order adjudi cating an alleged violation of FCC regulations is an or der "under" the Communications Act within the mean ing of § 402(a). See, e.g., Rocky Mountain Radar, Inc. v. FCC, 158 F.3d 1118, 1119, 1121-23 (10th Cir. 1998) (holding that an order determining that a business vio lated FCC regulations governing the marketing of radar-jamming devices is an order "under" the Commu nications Act within the meaning of § 402(a)); Maier v. FCC, 735 F.2d 220, 224 (7th Cir. 1984) (holding that or der determining that a broadcasting company did not violate FCC regulations governing personal attacks on news subjects is an order "under" the Communications Act within the meaning of § 402(a)).

The FCC's order that is the subject of AT&T's peti tion for review adjudicated AT&T's claim that disclosure of the information collected by the FCC concerning the E-Rate program in New London would violate FCC reg ulations implementing Exemption 7(C).3 Therefore, the order constituted an order "under" the Communications Act within the meaning of § 402(a). As a result, § 2342(1) provides that the courts of appeals have exclu sive jurisdiction to review that order.4

III.

Next, the FCC argues that we must affirm the order because AT&T has failed to challenge the FCC's deter mination that AT&T failed to comply with relevant pro cedural requirements in filing its application for review of the Bureau's order. We disagree.

The FCC made this argument for the first time in opposing AT&T's petition for review (which is the first time it could have made this argument). Therefore, there is no decision on this issue to review, and we will address the issue in the first instance. When a decision rests on multiple, independent grounds, a reviewing court should affirm it if one of those grounds is correct. See Levy v. Sterling Holding Co., 544 F.3d 493, 508-09 (3d Cir. 2008). An appellant waives an argument in sup port of reversal if he does not raise that argument in his opening brief. FDIC v. Deglau, 207 F.3d 153, 169 (3d Cir. 2000).

AT&T's procedural default was not an independent ground supporting the FCC's decision. The FCC, in its order, specifically stated that although it recognized AT&T's default, it would consider AT&T's claims on the merits "on [its] own motion." App. 10. This belies the FCC's claim that procedural default was an alternative holding. If it truly was an alternative holding, the FCC would not have needed to make its "own motion" to ex cuse the default in order to reach the merits. It could have discussed procedural default and then, separately and without any justifying segue, discussed the merits. Had the FCC done this, the procedural default holding would stand as an independent, sufficient ground for denial. That the FCC did not do this tells us that it did not (even in the alternative) base its decision on proce dural default.5

IV.

AT&T argues that the FCC incorrectly interpreted Exemption 7(C) when it held that a corporation lacks the "personal privacy" protected by that exemption. We agree with AT&T.

The FCC's interpretation of Exemption 7(C) is not entitled to deference under Chevron U.S.A., Inc. v. Nat ural Res. Def. Council, Inc., 467 U.S. 837 (1984), be cause FOIA applies government-wide, and no one agen cy is charged with enforcing it. ACLU v. Dep't of Def., 543 F.3d 59, 66 (2d Cir. 2008) (declining to accord defer ence to Department of Defense interpretation of FOIA). Thus, we exercise plenary review of the FCC's interpre tation of FOIA, and will set aside the FCC's decision if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." See 5 U.S.C. § 706(2)(A).

A.

In 1966, dissatisfied with then-existing statutory mechanisms compelling disclosure of Government re cords, Congress enacted FOIA to improve public access to information controlled by federal agencies. See OSHA Data/CIH, Inc. v. U.S. Dep't of Labor, 220 F.3d 153, 160 (3d Cir. 2000) (describing Congress's intent). FOIA embodies a philosophy of full disclosure: an agency may deny a reasonable request for information only if the information falls into a statutorily delineated exemption. Id.

This case concerns the so-called law enforcement exemption, Exemption 7(C), which shields from manda tory disclosure "records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or informa tion . . . could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C). FOIA's Exemption 6 also uses the phrase "personal privacy," shielding from compulsory disclosure "personnel and medical files and similar files the disclosure of which would constitute a clearly unwar ranted invasion of personal privacy." § 552(b)(6). FOIA does not define "personal," but it does define "person" to "include[] an individual, partnership, corporation, association, or public or private organization other than an agency." § 551(2).

Neither the Supreme Court nor this Court has ever squarely rejected a proffered personal privacy interest of a corporation. The most that can be said of the Su preme Court's cases and of our cases is that they sug gest that Exemptions 7(C) and 6 frequently and primar ily protect-and that Congress may have intended them to protect-the privacy of individuals. See, e.g., Report ers Comm., 489 U.S. at 764 n.16; U.S. Dep't of State v. Wash. Post Co., 456 U.S. 595, 599 (1982); Davin v. U.S. Dep't of Justice, 60 F.3d 1043, 1058 (3d Cir. 1995) (citing Landano v. U.S. Dep't of Justice, 956 F.2d 422, 426 (3d Cir. 1992)); Manna v. U.S. Dep't of Justice, 51 F.3d 1158, 1166 (3d Cir. 1995); Cuccaro v. Sec'y of Labor, 770 F.2d 355, 359 (3d Cir. 1985) (citing Lame v. U.S. Dep't of Justice, 654 F.2d 917, 923 (3d Cir. 1981)).

B.

As the Supreme Court has held, a court must "begin by looking at the language of the [statute]. . . . When [the court] find[s] the terms of a statute unambiguous, judicial inquiry is complete, except 'in rare and excep tional circumstances.'" Rubin v. United States, 449 U.S. 424, 429-30 (1981) (quoting TVA v. Hill, 437 U.S. 153, 187 n.33 (1978) (quotation marks and citation omitted)).

AT&T argues that the plain text of Exemption 7(C) indicates that it applies to corporations. After all, "per sonal" is the adjectival form of "person," and FOIA de fines "person" to include a corporation. We agree. It would be very odd indeed for an adjectival form of a de fined term not to refer back to that defined term. See Del. River Stevedores v. DiFidelto, 440 F.3d 615, 623 (3d Cir. 2006) (Fisher, J., concurring) (stating that it is a "grammatical imperative[]" that "a statute which defines a noun has thereby defined the adjectival form of that noun"). Further, FOIA's exemptions indicate that Con gress knew how to refer solely to human beings (to the exclusion of corporations and other legal entities) when it wanted to. Exemption 7(F), for example, protects in formation gathered pursuant to a law enforcement in vestigation that, if released, "could reasonably be ex pected to endanger the life or physical safety of any in dividual." 5 U.S.C. § 552(b)(7)(F) (emphasis added). Yet, Congress, in Exemption 7(C), did not refer to "the privacy of any individual" or some variant thereof; it used the phrase "personal privacy."

The FCC and CompTel's text-based arguments to the contrary are unconvincing. They cite Supreme Court case law for the proposition that, whenever possi ble, statutory words should be interpreted "in their ordi nary, everyday senses." Malat v. Riddell, 383 U.S. 569, 571 (1966). The ordinary meaning of "person" is human being, so, the argument concludes, "personal" must in corporate this ordinary meaning. This argument is un persuasive. It fails to take into account that "person"- the root from which the statutory word at issue is de rived-is a defined term. See Biskupski v. Att'y Gen., 503 F.3d 274, 280 (3d Cir. 2007) ("If, as here, 'a statute includes an explicit definition, we must follow that defi nition, even if it varies from that term's ordinary mean ing.'" (quoting Stenberg v. Carhart, 530 U.S. 914, 942 (2000))).

The FCC and CompTel next argue that FOIA's other uses of the phrase "personal privacy" indicate that the phrase does not encompass corporations. They point to Exemption 6, which shields from mandatory disclosure "personnel and medical files and similar files the disclo sure of which would constitute a clearly unwarranted invasion of personal privacy," 5 U.S.C. § 552(b)(6), and observe that courts have held that this exemption ap plies only to individuals and not to corporations. Thus, the FCC and CompTel argue, the phrase "personal pri vacy" in Exemption 6 applies only to individuals, and therefore "personal privacy" in Exemption 7(C) applies only to individuals, as well. This argument is flawed. Suppose (though we express no opinion on the issue) that Exemption 6 applies only to individuals (and not to corporations). This does not mean that each and every component phrase in that exemption, taken on its own, limits Exemption 6 to individuals. It means only that some language in that exemption does so. The phrase "personnel and medical files" serves this function. It limits Exemption 6 to individuals because only individu als (and not corporations) may be the subjects of such files. Therefore, nothing necessarily can be gleaned about the scope of "personal privacy," because Exemp tion 6 would apply only to individuals even if "personal privacy," taken on its own, encompasses corporations.

Thus, we hold that FOIA's text unambiguously indi cates that a corporation may have a "personal privacy" interest within the meaning of Exemption 7(C). This, for us, ends the matter. Rubin, 449 U.S. at 429-30. We need not consider the parties' arguments concer ning statutory purpose,6 relevant (but non-binding) case law,7 and legislative history.8

V.

AT&T next argues that, as a matter of law, the inva sion of personal privacy caused by the release of the documents the company submitted to the FCC could reasonably be expected to be "unwarranted" within the meaning of Exemption 7(C). We disagree.

AT&T made this argument to the FCC during the administrative proceedings, but because the FCC held that "personal privacy" does not apply to corporations, the FCC did not have occasion to discuss whether a po tential invasion of AT&T's "personal privacy" would be "unwarranted." Therefore, there is no decision on this issue to review.

"[U]nder settled principles of administrative law, when a court reviewing agency action determines that an agency made an error of law, the court's inquiry is at an end: the case must be remanded to the agency for further action consistent with the corrected legal stan dards." N.C. Fisheries Ass'n, Inc. v. Gutierrez, 550 F.3d 16, 20 (D.C. Cir. 2008) (quoting PPG Indus. v. United States, 52 F.3d 363, 365 (D.C. Cir. 1995)). AT&T attempts to avoid this bedrock principle by noting that "when [a FOIA] request seeks no 'official information' about a Government agency, but merely records that the Government happens to be storing," granting that re quest would, as a matter of law, constitute a "clearly un warranted" invasion of personal privacy within the meaning of Exemption 7(C), Reporters Comm., 489 U.S. at 780, so remand would be unnecessary. AT&T argues that none of the AT&T records that CompTel wants dis closed contains "official information" about the FCC or otherwise pertain to the FCC's conduct. Rather, AT&T contends that the request is aimed at gathering informa tion about AT&T, contained in AT&T documents, that "the Government happens to be storing," id., by virtue of the Bureau's investigation. We cannot agree. Comp Tel's FOIA request does not fit into that narrow cate gory.

CompTel has indeed alleged that it seeks "'official information' about a Government agency." Id. For ex ample, in its opposition to AT&T's letter-request to block disclosure, CompTel explains that it seeks infor mation about "the receipt of universal service support [the E-Rate program] for the New London Connecticut Public Schools." App. 37. CompTel notes that the FCC "terminated the investigation upon issuing an Order adopting a Consent Decree." App. 37. E-Rate has (at least) two participants: AT&T, which provides services to the local school districts (and bills the Government), and the FCC, which actually administers the entire op eration. It stands to reason, then, that documents in the FCC's investigative file may shed light on the FCC's administration of E-Rate. This is especially true given that CompTel made (as it was entitled to make) a very broad request for "all" the documents in the investiga tive file, not merely for those limited to, say, employee home addresses, which would be less likely to provide any insight into the functioning of a federal agency.9

We therefore abide by long-established principles of administrative law and will remand the matter to the FCC with instructions to determine, in accordance with our construction of Exemption 7(C), whether disclosure "could reasonably be expected to constitute an unwar ranted invasion of personal privacy," § 552(b)(7)(c).

 

VI.

For the above reasons, we will grant AT&T's petition for review and remand the matter to the FCC for fur ther proceedings consistent with this opinion.

1 Honorable A. Wallace Tashima, Senior Judge for the United States Court of Appeals for the Ninth Circuit, sitting by designation.

2 Disclosure is currently stayed pending the outcome of this appeal.

3 FOIA itself does not prohibit disclosure of information falling with in its exemptions. When information falls within an exemption, no party can compel disclosure, but the FCC can still make a disclosure on its own accord unless some independent source of law prohibits the agency from doing so. See Chrysler Corp. v. Brown, 441 U.S. 281, 293 (1979) (explaining that, standing alone, FOIA's exemptions "do[] not give [courts] the authority to bar disclosure"). Thus, the disclosure of infor mation falling within an exemption does not violate FOIA itself, but rather an independent source of law. Here, FCC regulations provide this independent source. See 47 C.F.R. § 0.457(g)(3) (prohibiting dis closure of information covered by Exemption 7(C)).

4 CompTel cites two cases, Chrysler, 441 U.S. 281, and GTE Sylv ania, Inc. v. Consumer Product Safety Comm'n, 598 F.2d 790 (3d Cir. 1979), which it claims stand for the proposition that the district courts, not the courts of appeals, have jurisdiction to review reverse-FOIA claims. CompTel is mistaken. True, in each of those cases, the district courts, rather than the courts of appeals, had jurisdiction to hear a reverse-FOIA claim. But neither of those opinions indicate that the laws allegedly barring disclosure in those cases contain any provision triggering the operation of a statute that would have vested jurisdiction exclusively in another court.

5 If the FCC lacked the authority to consider the merits on its own motion, then perhaps its order actually did consist of two alternative holdings. If the FCC lacked such authority, then its justification for issuing a merits holding-its "own motion" to excuse procedural default -would have been erroneous, and all that would have remained would be one procedural default holding and one merits holding, with nothing connecting the two. But CompTel does not appear to argue that the FCC lacked such authority, and for good reason: the FCC had it. See 47 C.F.R. § 1.3 (allowing the FCC to waive any regulation "for good cause shown").

6 Nevertheless, we note that interpreting "personal privacy" accor ding to its plain textual meaning serves Exemption 7(C)'s purpose of providing broad protection to entities involved in law enforcement in vestigations in order to encourage cooperation with federal regulators. Corporations, like human beings, are routinely involved in law enforce ment investigations. Corporations, like human beings, face public em barrassment, harassment, and stigma because of that involvement. Reading "personal privacy" to exclude corporations would disserve Ex emption 7(C)'s purpose of encouraging corporations-like human be ings-to cooperate and be forthcoming in such investigations. Finally on this topic, "[t]he best evidence of th[e] purpose [of a statutory text] is the statutory text adopted by both Houses of Congress and submit ted to the President." W. Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 98 (1991), superseded by statute on other grounds, Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071 (1991). That text, we have ex plained, demonstrates that a corporation may have "personal privacy" within the meaning of Exemption 7(C).

7 The Court of Appeals for the District of Columbia Circuit cases discussed by the parties-Multi Ag Media LLC v. Department of Agriculture, 515 F.3d 1224 (D.C. Cir. 2008), Judicial Watch, Inc. v. FDA, 449 F.3d 141 (D.C. Cir. 2006), and Washington Post, 863 F.2d 96-do not impugn our textual analysis. The court in Multi Ag Media suggested that "personal privacy" within the meaning of Exemption 6 extends to individuals only. But it appears to have inferred this con clusion from its observation that Congress's main purpose in enacting Exemption 6 was to protect individuals (and not necessarily corpora tions). See 515 F.3d at 1228. We do not believe that inferring the sta tute's meaning merely from evidence of the enacting Congress's chief purpose is analytically appropriate: "'the fact that a statute can be ap plied in situations not expressly anticipated by Congress does not dem onstrate ambiguity. It demonstrates breadth.'" PGA Tour, Inc. v. Martin, 532 U.S. 661, 689 (2001) (quoting Pa. Dep't of Corr. v. Yeskey, 524 U.S. 206, 212 (1988) (quotation marks omitted)). The Judicial Watch court, in applying Exemption 6, considered only individuals' privacy interests in balancing "personal privacy" against the need for public disclosure. Yet the court's description of the parties' arguments indicates that the FDA (the federal agency holding the documents in that case), in its attempt to resist disclosure, only cited individual pri vacy interests in the first place. See 449 F.3d at 152-53. Thus, the court never had the occasion to pass on whether "personal privacy" encom passes corporate privacy. Finally, the court in Washington Post noted that Exemption 7(C) concerns only "intimate" details, including "mari tal status, legitimacy of children, identity of fathers of children, medical condition, welfare payments, alcoholic consumption, family fights, and reputation." 863 F.2d at 100. But a corporation, too, has a strong inter est in protecting its reputation.

In any event, to the extent that these cases can be read to conflict with our textual analysis, we decline to follow them.

8 We decline the FCC and CompTel's invitation to examine the leg islative history of Exemption 7(C) because we find the text of FOIA to be unambiguous. See In re Mehta, 310 F.3d 308, 311 (3d Cir. 2002) ("We look to the text of a statute to determine congressional intent, and look to legislative history only if the text is ambiguous."); see generally Bruesewitz v. Wyeth, Inc., 561 F.3d 233, 244 (3d Cir. 2009) ("We have recognized that legislative history is not without its shortcomings as a tool of interpretation. 'As a point of fact, there can be multiple legis lative intents because hundreds of men and women must vote in favor of a bill in order for it to become a law.'") (quoting Morgan v. Gay, 466 F.3d 276, 278 (3d Cir. 2006)).

9 Further, determining that each document AT&T submitted to the FCC contains some protected content would be difficult enough, but FOIA requires more. We would have to be convinced that every "reasonably segregable portion" of each document contains protected information. 5 U.S.C. § 552(b) (flush language) (emphasis added). Holding, on the very limited record before us, that Exemption 7(C) protects every reasonably segregable jot and tittle of each document that AT&T submitted would be truly extraordinary, and, in our view, not an appropriate course of action for a reviewing court to undertake in the first instance.

1. APPENDIX B

 

BEFORE THE

FEDERAL COMMUNICATIONS COMMISSION WASHINGTON, D.C. 20554

 

 

 

 

IN THE MATTER OF SBC COMMUNICATIONS INC.

ON REQUEST FOR CONFIDENTIAL TREATMENT

 

 

 

 

Adopted: Sept. 9, 2008

Released: Sept. 12, 2008

 

 

 

 

MEMORANDUM OPINION AND ORDER

 

 

 

 

BY THE COMMISSION:

1. The Commission has before it an application for review filed by SBC Communications, Inc. (SBC),1 seek ing review of a decision of the Enforcement Bureau (EB or Bureau), which rules on a Freedom of Information Act (FOIA) request by CompTel. SBC appeals that por tion of EB's decision that denied in part SBC's request for confidential treatment of records responsive to CompTel's FOIA request. For the reasons set forth below, we deny SBC's application for review.2

I. BACKGROUND

2. On December 16, 2004, EB issued a consent de cree3 terminating its investigation into SBC's compli ance with section 254 of the Communications Act, as amended, and Part 54 of the FCC's regulations.4 CompTel, on April 4, 2005, filed a FOIA request seeking "[a]ll pleadings and correspondence contained in File No. EB-04-IH-0342 [i.e., the investigation of SBC]."5 In opposing release of the requested documents, SBC, on May 27, 2005, for the first time requested confidential treatment of its submissions in that investigation.6

3. The Bureau granted in part and denied in part SBC's request for confidential treatment, and, accord ingly, granted in part and denied in part CompTel's FOIA request.7 The Bureau found that SBC had not complied with the procedures for seeking confidential treatment specified by section 0.459 of the Commission's rules.8 EB held that SBC "failed to provide a statement of specific reasons for withholding its responses in their entirety," especially because it failed to meet the re quirements of section 0.459 that it explain "how disclo sure of the information could result in substantial com petitive harm" and "whether any of the information for which it seeks protection is already available to the pub lic."9 The Bureau, however, examined SBC's submis sions and determined that certain information in SBC's submissions should be treated as confidential, including "costs and pricing data, its billing and payment dates, and identifying information of SBC's staff, contractors, and the representatives of its contractors and custom ers." According to EB, such information, if released, was "likely to substantially harm SBC's competitive po sition," and was therefore exempt from disclosure under FOIA Exemption 4.10 EB also determined that this in formation was not in the public domain.11 In addition, the Bureau determined that the names of individuals identified in SBC's submission should be withheld from release to protect personal privacy under FOIA Exemp tions 6 and 7(C).12 EB ruled, however, that SBC itself, as opposed to the individuals mentioned in SBC's sub missions, did not possess personal privacy interests pro tected by Exemptions 6 and 7(C).13 Finally, the Bureau withheld from release pursuant to FOIA Exemption 514 drafts of EB pleadings and correspondence, and internal memoranda and e-mails discussing the SBC investiga tion,15 which EB determined would disclose the Commis sion's deliberative process.

4. Both CompTel and SBC filed applications for re view of EB's decision.16 While these pleadings were pending before the Commission, CompTel filed a civil action, pursuant to 5 U.S.C. _ 552(a)(4)(B), in the United States District Court for the District of Columbia, seek ing a judicial order compelling disclosure of the records withheld by EB.17 AT&T18 (as successor to SBC) inter vened in CompTel's action as a defendant, and, on March 5, 2008, the court stayed the case..19 The court concluded that it could not address AT&T's "reverse FOIA" claim that certain records at issue should be withheld from disclosure because AT&T's claim could only be reviewed pursuant to the Administrative Proce dure Act after final Commission action.20 The court con cluded further that the interests of judicial economy and efficiency would be served by staying CompTel's action until the Commission ruled on AT&T's administrative appeal. Accordingly, SBC's application for review is now before us.

5. SBC seeks review of the Bureau's denial in part of its request for confidential treatment. SBC chal lenges the Bureau's conclusion that FOIA Exemption 7(C) does not apply to corporations, contending that cor porations are persons that have a privacy interest within the meaning of Exemption 7(C), and that this proposi tion is consistent with precedent.21 Accordingly, SBC argues that its internal documents should be withheld pursuant to Exemption 7(C), because disclosure would embarrass SBC without serving any public policy inter est.22 CompTel responds that there is no precedent sup porting the proposition that corporations have a per sonal privacy interest for purposes of Exemption 7(C).23

II. DISCUSSION

A. Procedural Matter

6. As an initial matter, we find that SBC's applica tion for review does not conform with the Commission's Rules. In general, an application for review of an initial action on a request for inspection may be filed only by the person making the FOIA request (here CompTel).24 There is an exception to this limitation where a request for inspection of records submitted to the Commission in confidence under section 0.457(d) or section 0.459 is granted or partially granted, in which case the person who submitted the records or the third party owner of the records may file an application for review.25 How ever, despite notice from EB of its right to do so,26 SBC did not seek confidential treatment of its submissions in accordance with section 0.459(a) by filing a timely re quest for confidentiality when it submitted the material, and thus does not qualify to file an application for review pursuant to the terms of section 0.461(i).27 This failure to comply with our rules would alone justify the denial of SBC's request for confidential treatment. Although we admonish SBC that it should have complied with sec tion 0.459, we are mindful of the provisions of FOIA Ex emption 4 and the Trade Secrets Act28 to prevent disclo sure of confidential information and to consider the views of the submitter when making disclosure determi nations. Therefore, we have considered the information and arguments subsequently submitted by SBC on our own motion.

 

B. Exemption 7(C)

7. We disagree with SBC's contention that we should withhold all of the documents that it submitted in response to EB's letter of inquiry under Exemption 7(C).29 SBC argues that disclosure of these records, all indisputably "compiled for law enforcement purposes," could reasonably be expected to "constitute an unwar ranted invasion of personal privacy."30 In this regard, SBC characterizes itself as a "private corporate citizen" with personal privacy rights that should be protected from disclosure that would "embarrass" it.31 However, SBC's position that a corporation has "personal privacy" interests within the meaning of Exemption 7(C) is at odds with established Commission and judicial prece dent. In Chadmoore Communications, Inc.,32 the Com mission held that information regarding an individual acting in the capacity of a commercial licensee, that is, in a business capacity, did not implicate a privacy inter est for purposes of Exemption 7(C). The clear implica tion of Chadmoore is that information regarding a cor poration would not be exempt either.33 Our holding is consistent with judicial decisions in Washington Post Co. v. U.S. Dep't of Justice34 and Cohen v. EPA.35 In Washington Post, the United States Court of Appeals for the District of Columbia Circuit stated that the dis closures with which Exemption 7(C) is concerned are those of "an intimate personal nature" such as "marital status, legitimacy of children, identity of fathers of chil dren, medical condition, welfare payments, alcoholic consumption, family fights, and reputation."36 In Cohen, the United States District Court for the District of Co lumbia cited the same examples.37 These cases hold that Exemption 7(C) does not cover information relating to business judgments and relationships, even if disclosure might tarnish someone's professional reputation.38 Thus, in Washington Post, the D.C. Circuit held that Exemption 7(C) did not cover the report of an internal corporate investigation that mentioned individual em ployees by name but did not identify them as being per sonally the target of the investigation.39 In Cohen, the district court held that Exemption 7(C) did not cover the names of individuals, such as corporate officials, men tioned in EPA hazardous waste notices, since they were identified only in their "public role" of being the users of hazardous waste disposal sites and would no more be subject to harassment than if the name of the corpora tion were disclosed.40 Like Chadmoore, these cases im ply that Exemption 7(C) does not cover a corporation's "privacy interest," since a corporation's interests are of necessity business interests. SBC points to no Exemp tion 7(C) cases that are to the contrary.

8. SBC urges us to depart from this precedent on several grounds, none of which are persuasive. Unlike SBC, we do not believe that protecting a corporation from "embarrassment" falls within the purposes of Ex emption 7(C), as interpreted by the courts.41 Judicial discussion of the purposes of Exemption 7(C) focus on the kinds of tangible personal impact that disclosure of information of an intimate personal nature might have on the targets of investigations, witnesses, and partici pating law enforcement officials, such as damage to their personal reputation, embarrassment, and the possibility of harassment.42 We read the courts' discussion in these cases to refer to the literal embarrassment and danger that an individual might suffer from disclosure of infor mation of a personal nature and not to the more abstract impact that disclosure might have on a legal entity like a corporation.

9. SBC also argues that in U.S. Dep't of Justice v. Reporters Committee for Freedom of the Press,43 the United States Supreme Court did not limit the applica bility of Exemption 7(C) to individuals.44 This argument is inapposite because Reporters Committee involved a rap sheet unique to a particular individual and the Court had no reason to address the applicability of its holding to corporations. Nonetheless, to the extent that Report ers Committee is at all relevant, it is fully consistent with EB's determination that Exemption 7(C) applies only to individuals' privacy interests. In analyzing the intent of Congress with respect to Exemption 7(C), Re porters Committee relies on both the Privacy Act45 and FOIA Exemption 6, both of which apply only to individu als,46 suggesting that the privacy interest involved in all three provisions is similar and applicable only to individ uals.

10. SBC's remaining arguments amount to the as sertion that because a corporation may be treated as a "person"47 and have "privacy interests" for some pur- poses, it has personal privacy interests for purposes of Exemption 7(C). Such reasoning cuts too broadly. The privacy interests relevant to Exemption 7(C) are those discussed in paragraphs 8 and 9, supra. The interests underlying other forms of "privacy" that might be rele vant in other contexts are not controlling for purposes of Exemption 7(C).48 Thus, for example, it is not relevant that a corporation may have a constitutionally protected privacy interest against unreasonable search and sei zure of its property under the Fourth Amendment, as found in U.S. v. Hubbard,49 cited by SBC. SBC has not demonstrated that the holding in Hubbard compels or even supports a finding that a corporation has any per sonal privacy interest that justifies withholding of docu ments under the FOIA.50 Likewise, the privacy inter- ests found in Tavoulareas v. Washington Post Co.,51 and cited by SBC, involved the "constitutionally protected privacy interest in avoiding the public disclosure of sen sitive commercial information [obtained in civil discov ery and not used at a trial between private parties]."52 It had nothing to do with FOIA Exemption 7.53 The con stitutional privacy analysis applied by the panel in Tavoulareas was, in any case, vacated on rehearing by the court en banc.54

11. For all of the reasons discussed above, we find that Exemption 7(C) has no applicability to corporations such as SBC. Accordingly, we deny SBC's application for review.

III. ORDERING CLAUSE

12. ACCORDINGLY, IT IS ORDERED that SBC Communications Inc.'s application for review IS DE NIED. If SBC does not seek a judicial stay within ten (10) working days of the date of release of this memo randum opinion and order, the redacted records will be produced to CompTel, as specified in the Enforcement Bureau's decision. See 47 C.F.R. _ 0.461(i)(4).

 

FEDERAL COMMUNICATIONS

COMMISSION

 

Marlene H. Dortch

Secretary

2.

APPENDIX C

3.

[SEAL OMITTED]

FEDERAL COMMUNICATIONS COMMISSION Enforcement Bureau, Investigations and Hearings Division 445 12th Street, S.W., Room 4-C320 Washington, D.C. 20554

Aug. 5, 2005

Via Certified Mail, Return Receipt Requested, Facsimile and E-Mail

Mr. Jim Lamoureux

SBC Services, Inc.

1401 I Street N.W., Suite 400

Washington, D.C. 20005

Ms. Mary C. Albert

Vice President, Regulatory Policy

CompTel/ALTS

1900 M Street, N.W.

Washington, D.C. 20036

Re: Freedom of Information Act Request

FOIA Control No. 2005-333

Dear Mr. Lamoureux and Ms. Albert:

I. INTRODUCTION

This letter concerns a Freedom of Information Act ("FOIA") request from Comptel/ALTS ("Comptel") for information submitted by SBC Communications, Inc. ("SBC") in response to a Letter of Inquiry ("LOI") from the Enforcement Bureau. SBC has requested confiden tial treatment of its submissions. As explained below, we grant SBC's request in part and deny it in part. Therefore, we will release to Comptel SBC's responses as described herein unless we receive an application for review from SBC within ten working days from the date of this letter. If Comptel believes that any portion of this decision is in error, it may file an application for review of this action with the Commission's Office of General Counsel within 30 days of the date of this letter.

II. BACKGROUND

On August 24, 2004, the Investigations and Hearings Division of the Enforcement Bureau (the "Bureau") sent SBC an LOI notifying the company that the Bureau was investigating whether it violated Part 54, Subpart F, of the Commission's rules, 47 C.F.R. __ 54.500-54.521, and the Commission's orders regarding universal service funding.55 SBC responded to this LOI on September 13, 2004.56

On December 16, 2004, the Bureau terminated its investigation by adopting a Consent Decree in which SBC agreed to make a voluntary contribution to the United States Treasury in the amount of $500,000 and to institute a compliance plan, as specified therein, "to en sure SBC's wholly-owned subsidiaries' future compli ance with the Commission's rules governing the E-Rate program."57 The Consent Decree specifies that "it does not constitute an admission, denial, adjudication on the merits, or a factual or legal determination regarding any compliance or noncompliance with the requirements of section 254 of the Act or Part 54 of the Commission's rules.58

On April 4, 2005, the Bureau received Comptel's FOIA request for copies of "all pleadings and correspon dence contained in file number EB-04-IH-0342,"59 the investigative file for the investigation referenced in the December 16, 2004, Consent Decree. On May 27, 2005, SBC filed its response to the FOIA request, opposing release of the requested documents and seeking confi dentiality for the materials.60 SBC argues in its Opposi tion that the requested documents were "compiled for law enforcement purposes," and, thus, are exempt from disclosure under FOIA Exemption 7. Specifically SBC argues that disclosure is prohibited by FOIA Exemption 7(C) because it would cause an unwarranted invasion of personal privacy. SBC also contends that FOIA Exemp tion 4 prohibits release of the requested documents be cause the documents "clearly pertain to SBC's business dealings with one of its customers" and because many of the documents contain information pertaining to SBC's systems, processes and operations, and include cost, pricing and other "commercially sensitive" information.61

By letter dated June 28, 2005, Comptel replied to SBC's Opposition.62 Comptel challenges SBC's claims that FOIA Exemptions 7(C) and 4 prohibit disclosure of the requested documents. Although Comptel does not object to redaction from the requested documents of the names, telephone numbers, and home and email ad dresses of SBC employees, it argues that Exemption 7(C) is inapplicable to SBC because it is "a large, pub licly traded corporation . . . that . . . possesses no protectable personal privacy interest."63 Comptel also asserts that SBC's "conflicting positions" regarding whether its submissions were provided to the Bureau voluntarily or under compulsion do not support SBC's reliance upon Exemption 4 to prohibit disclosure of the requested documents, that SBC's "conclusory and gener alized" characterizations of the records as confidential commercial information are "insufficient to demonstrate the likelihood of substantial competitive injury" as re quired by Exemption 4, and that the cost and pricing information that SBC wishes to withhold from disclosure is already in the public domain because E-Rate service providers are required under section 54.501(d)(3) of the Commission's rules64 to make those records available for public inspection.65

III. DISCUSSION

A. SBC's Requests To Keep Its Responses Confiden tial In Their Entirety Are Deficient

Section 0.459 of the Commission's rules establishes a procedure by which parties may request that informa tion or materials that they have submitted to the Com mission not be made routinely available for public in spection. See 47 C.F.R. _ 0.459. This rule requires that a party seeking confidentiality provide a statement of the reasons for withholding the materials in question from public inspection and set forth specific categories of materials for which such treatment is appropriate. A request for confidentiality "shall include," inter alia, an "explanation of the degree to which the information is commercial or financial, or contains a trade secret or is privileged;"66 an "[e]xplanation of how disclosure of the information could result in substantial competitive harm;"67 and "[i]dentification of whether the information is available to the public and the extent of any previous disclosure of the information to third parties."68

We find that SBC's requests for confidential treat ment of its submissions substantially fail to comply with the standards set forth in section 0.459(b) of the Commis sion's rules. The rules clearly state that casual requests for confidentiality that do not comply with the require ments set forth in sections 0.459(a) and (b) will not be considered.69 Further, the LOI issued to SBC by the Bureau explicitly warns SBC that requests for confiden tial treatment must comply with the requirements spe cifically mandated by section 0.459(b), and that the Bu reau will not consider confidentiality requests that do not so comply.

Nevertheless, SBC has failed to provide a statement of specific reasons for withholding its responses in their entirety. While generally categorizing the information contained in its submissions, SBC does not, as required by section 0.459(b)(3), explain the degree to which spe cific information is commercial or financial or contains a trade secret. Nor does it explain, as required by sec tion 0.459(b)(5), how disclosure of such information could result in substantial competitive harm. SBC also fails to state whether any of the information for which it seeks protection is already available to the public.70

We find SBC's request for the confidential treatment of all its submissions to be overly broad. Portions of the documents submitted by SBC appear to contain com mercial or financial information, the disclosure of which could result in substantial competitive harm to SBC. But most of those pages also contain information that is not confidential, such as FRN numbers, lists of equip ment, and references to ordinary administrative mat ters. Some of that information is already within the public domain.71 Release of such information appears unlikely to result in competitive harm to SBC and SBC offers no justification for withholding such information as commercial, financial or trade secret information. Consequently, that information will be disclosed.

Accordingly, we conclude that SBC has failed to demonstrate by a preponderance of the evidence a case for nondisclosure of all of its submissions. We therefore deny SBC's requests that we grant confidential treat ment of the entirety of its submissions.

B. Portions of SBC's Submissions Are Subject To Protection From Disclosure As "Commercially Sensitive Information"

We base confidentiality determinations under section 0.459 of the Commission's rules relating to commercial or financial materials on Exemption 4 of the FOIA which permits us to withhold "trade secrets and commercial or financial information obtained from a person and [that is] privileged or confidential."72 Exemption 4 protects "any financial or commercial information provided to the Government on a voluntary basis if it is of a kind that the provider would not customarily release to the pub lic." (emphasis added)73 However, under Exemption 4 commercial or financial materials that are part of re quired submissions are held to be confidential only when disclosure would either impair the government's ability to obtain necessary information in the future or would be likely to substantially harm the competitive position of the submitter.74

SBC's LOI responses were required submissions for the purposes of our FOIA analysis.75 An LOI is an ad ministrative order that compels the production of infor mation. Failure to respond properly to an LOI may sub ject an entity to forfeiture action.76 Because we directed SBC to submit its written responses to the Bureau's LOI, its responses were required.

We find that certain information in SBC's submis sions constitutes commercial or financial information, the disclosure of which could result in substantial com petitive harm to SBC. Such commercially sensitive in formation includes, but is not limited to, SBC's costs and pricing data, its billing and payment dates, and identify ing information of SBC's staff, contractors, and the rep resentatives of its contractors and customers. Accord ingly, such information is exempt from disclosure under FOIA Exemption 4.77

Although section 54.501(d)(3) of the Commission's rules requires telecommunications service providers such as SBC to allow public inspections of the rates it charges and the discounts it allows to schools and librar ies eligible for universal service support,78 SBC can com ply with the rule's requirements by maintaining a "pub lic inspection file" containing the required rate informa tion. The rule does not mandate disclosure here of all of the pricing data contained in SBC's submissions. In this instance, disclosure of SBC's invoice and discount amounts could disclose the total value of its contract, information that would not otherwise be publicly avail able. That information is not in the public domain and its release is not required by the rule. Because release of SBC pricing information in this case is likely to sub stantially harm SBC's competitive position, such infor mation is exempt from disclosure under FOIA Exemp tion 4.

C. Names of SBC Employees And Customers Are Pro tected From Disclosure Due To Personal Privacy Concerns

The FOIA statute, 47 [sic] U.S.C. _ 552(b)(7)(C), pro vides that records or information compiled for law en forcement purposes are exempt from disclosure to the extent that the production of such records could reason ably be expected to "constitute an unwarranted invasion of personal privacy" are exempt from disclosure.79 Gen erally, businesses do not possess "personal privacy" in terests as required for application of FOIA Exemption 7(C).80 However, the individuals identified in SBC's sub missions do have such privacy rights and, pursuant to this provision, portions of SBC's submissions will be redacted to withhold the names and identifying informa tion of those individuals to prevent unwarranted inva sions of their personal privacy.

D. Documents Which Disclose an Agency's Delibera tive Process Are Protected Prom Disclosure

Exemption 5 of the FOIA protects "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.81 Pursuant to this exemption we will withhold from public disclosure drafts of Bureau pleadings and correspondence, and memoranda and emails, distributed among Commission staff, which dis cuss the issues and investigation related to this matter.

IV. CONCLUSION

For the reasons stated above, we grant in part and deny in part SBC's request for confidentiality. If SBC believes that this decision is in error, it must file an ap plication for review of this action with the Commission's Office of General Counsel within ten working days of the date of this letter. See 47 C.F.R. _ 0.461(i). We will pro duce the documents requested as noted above if no such application for review is filed. We will assess copying charges, if any, at that time. If Comptel believes that this decision is in error, it may file an application for review of this action with the Commission's Office of General Counsel within 30 days of the date of this letter. See 47 C.F.R. _ 0.461(j).

We are providing SBC's counsel with a copy of the documents as redacted pursuant to this decision.

 

Sincerely,

 

/s/ WILLIAM H. DAVENPORT

WILLIAM H. DAVENPORT

CHIEF, INVESTIGATIONS AND

HEARINGS DIVISION

ENFORCEMENT BUREAU

1 SBC adopted the name AT&T, Inc. (AT&T) following its acquisi tion of the company by that name. See http://www.att.com/gen/press- room?pid=4800&cdvn=news&newsarticleid=21850 (company press release). Because, however, the pleadings and rulings before us refer to "SBC," we will generally use the name "SBC" in this memorandum opinion and order to avoid confusion. We will use the name "AT&T" on ly where the context makes it more appropriate.

2 The procedural history of this case is somewhat complex. For rea sons explained in greater detail below, CompTel's own application for review of EB's decision is not before us. We will discuss CompTel's FOIA request and application for review only to the extent necessary to clarify the matters under consideration.

3 SBC Communications Inc., 19 FCC Rcd 24014 (Enf. Bur. 2004). The consent decree addressed alleged irregularities in invoices submit ted by SBC Connecticut to the Schools and Libraries Division of the Universal Service Administrative Company (USAC) for services pro vided to certain schools and other entities subsidized under the Univer sal Service Fund "E-Rate" program.

4 See 47 U.S.C. _ 254; 47 C.F.R. Part 54.

5 E-FOIA request from Mary C. Albert, CompTel/ALTS (Apr. 4, 2005).

6 Letter from Jim Lamoureux, Senior Counsel, SBC Services, Inc., to Judy Lancaster, Enforcement Bureau (May 27, 2005). SBC's request for confidentiality specifically applied to financial documents that it submitted to EB in response to a letter of inquiry issued during the in vestigation. CompTel opposed SBC's request for confidentiality. Let ter from Mary C. Albert, Vice President, Regulatory Policy to Judy Lancaster, Enforcement Bureau (Jun. 28, 2005).

7 Letter from William H. Davenport, Chief, Investigations and Hear ings Division, Enforcement Bureau to Jim Lamoureux, SBC Services, Inc. and Mary C. Albert, Vice President Regulatory Policy, CompTel/ ALTS (Aug. 5, 2005) (FOIA Decision).

8 47 C.F.R. _ 0.459.

9 FOIA Decision at 4, citing 47 C.F.R. § 0.459(b)(5) and (7).

10 FOIA Decision at 5. See 5 U.S.C. _ 552(b)(4). Exemption 4 covers "trade secrets and commercial or financial information obtained from a person and privileged or confidential."

11 FOIA Decision at 5. Specifically, EB found that 47 C.F.R. _ 54.501(d)(3), which states that service providers' records of rates charged and discounts allowed shall be made available for public in spection, did not require the disclosure of all pricing data in SBC's sub missions.

12 FOIA Decision at 5-6, citing 5 U.S.C. §§ 552(b)(7)(C) (records complied for law enforcement purposes . . . [that] could reasonably be expected to "constitute an unwarranted invasion of personal privacy") and 552(b)(6) ( . . . files the disclosure of which would "constitute a clearly unwarranted invasion of personal privacy").

13 FOIA Decision at 6.

14 5 U.S.C. § 552(b)(5) (inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency).

15 FOIA Decision at 6.

16 Letter from Mary C. Albert to Samuel Feder (Sept. 6, 2005) (CompTel Application for Review); Letter from Jim Lamoureux, SBC Services, Inc., to Samuel Feder, [then] Acting General Counsel (Aug. 19, 2005) (SBC Application for Review).

17 CompTel v. FCC, Civil Action 06-01718 (HHK) (D.D.C. filed Oct. 5, 2006). The FOIA permits such actions where the agency does not act on a FOIA request or appeal within the statutory time period. See 5 U.S.C. _ 552(a)(6)(C)(i) (agency's failure to comply with statutory time period deemed to exhaust administrative remedies). Because the CompTel's judicial action is still pending, we will not address the merits of its application for review here.

18 See note 1, supra.

19 CompTel v. FCC, Civil Action 06-01718 (HHK) (D.D.C. memoran dum opinion and order Mar. 5, 2008).

20 See generally Chrysler Corp. v. Brown, 441 U.S. 281 (1979) (dis cussing reverse FOIA requests).

21 SBC Application for Review at 2-8.

22 Id. at 4-5.

23 Letter from Mary C. Albert, Vice President, Regulatory Policy to Samuel Feder, Esq.,, [then] Acting General Counsel (Sept. 1, 2005) (CompTel Opposition) at 3-6.

24 47 C.F.R. _ 0.461(j).

25 47 C.F.R. _ 0.461(i)(1) and (2), citing 47 C.F.R. __ 0.457(d) and 0.459.

26 EB's letter of inquiry specifically advised SBC: "If the Company [SBC] requests that any information or Documents, as defined herein, responsive to this letter be treated in a confidential manner, it shall submit, along with responsive information and Documents, a statement in accordance with section 0.459 of the Commission's rules." Letter from Hillary S. DeNigro, Deputy Chief, Investigations and Hearing Division, EB to Michelle A. Thomas and Christopher Heimann [SBC] (Aug. 24, 2004) at 1-2.

27 SBC's response to CompTel's FOIA request states: "All of the rec ords responsive to the CompTel/ALTS [FOIA] request were issued and obtained by the Commission as part of an Enforcement Bureau investi gation, and thus, pursuant to 0.457, are not routinely available for public inspection." Letter from Jim Lamoureux to Judy Lancaster (May 27, 2005). SBC thus implies that it was not required to comply with section 0.459. We disagree. Because the material submitted by SBC was not specifically listed as confidential commercial and financial information under section 0.457(d)(l), section 0.457(d)(2) required SBC to submit a request for confidentiality under section 0.459. Section 0.461(i) does not permit a party submitting confidential documents to the Commission to wait to claim confidentiality, as SBC did, until a FOIA request is filed.

28 18 U.S.C. _ 1905.

29 FOIA Exemption 7(C) applies to "records or information compiled for law enforcement purposes . . . to the extent that production of such law enforcement records or information . . . could reasonably expected to constitute an unwarranted invasion of personal privacy."

30 See 5 U.S.C. _ 552(b)(7)(C).

31 SBC Application for Review at 4.

32 13 FCC Rcd 23943, 23946-47 _ 7 (1998).

33 Chadmoore references a line of cases holding that corporations do not have a "personal privacy" interest for purposes of Exemption 6. See 13 FCC Rcd at 23946-47 _ 7 and Electronic Privacy Information Center v. Dep't of Homeland Security, 384 F. Supp. 2d 100, 118 n.29 (D.D.C. 2005); Hill v. Dep't of Agriculture, 77 F. Supp. 2d 6, 7 (D.D.C. 1999); Ivanhoe Citrus Ass'n v. Handley, 612 F. Supp. 1560, 1567 (D.D.C. 1985). "While it has been established that Exemption 7(C) and Exemption 6 are not completely congruent, the difference lies in the standard of review and not the relevant privacy interest covered by the exemption." Cohen v. EPA, 575 F. Supp. 425, 429 n.6 (D.D.C. 1983), citing FBI v. Abramson, 456 U.S. 615, 630 n.13 (1982) (Exemption 6 protects against the disclosure of information that would constitute a "clearly unwarranted" invasion of personal privacy, whereas Exemption 7(C) does not require the harm to privacy to be "clearly unwarranted"); see also U.S. Dep't of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 756 (1989) (noting the same distinction and that Exemption 6 uses the word "would" while Exemption 7(C) uses "could reasonably").

34 863 F.2d 96, 100-01 (D.C. Cir. 1988).

35 575 F. Supp. 425, 429-30 (D.D.C. 1983).

36 863 F.2d at 100.

37 575 F. Supp. at 429.

38 863 F.2d at 100 ("Information relating to business judgments and relationships does not qualify for exemption [7(C)]"); 575 F.2d at 429 ("The privacy exemption [in Exemption 7(C)] does not apply to informa tion regarding professional or business activities").

39 The D.C. Circuit, in McCutcheon v. U.S. Dep't of Health and Hu man Services, 30 F.3d 183, 187 (D.C. Cir. 1994), clarified that, although the exemption does not generally cover business judgments and rela tionships, information that accused individual employees of having a committed a crime in connection with their employment would implicate "the privacy interest of personal honor" and that "the protection ac corded reputation under Exemption 7(C) would generally shield mater ial" that "would show that an individual was the target of a law enforce ment investigation." As noted, however, the internal corporate report in Washington Post did not identify any individual employees as being the targets of investigation and no such information is at issue in the present case.

40 To the extent that the notices identified individuals as being poten tially responsible for hazardous waste violations, the court held that the public interest outweighed the individuals' privacy interests.

41 We have previously held that public embarrassment to a corpora tion did not warrant withholding material under Exemption 4. Liberty Cable Co., Inc., 11 FCC Rcd 2475, 2476 _ 7 (1996), aff'd sub nom. Bartholdi Cable Co., Inc. v. FCC, 114 F.3d 274 (D.C. Cir. 1997), citing CNA Financial Corp. v. Donovan, 830 F.2d 1132, 1154 (D.C. Cir. 1987) and General Electric Co. v. Nuclear Regulatory Comm'n, 750 F.2d 1394, 1402 (7th Cir. 1984).

42 See, e.g., Washington Post, 863 F.2d at 100-01; Nation Magazine v. U.S. Customs Service, 71 F.3d 885, 894 (D.C. Cir. 1995) (" . . . indi viduals have an obvious privacy interest . . . in keeping secret the fact that they were subjects of a law enforcement investigation," as do wit nesses and informants); Wichlacz v. U.S. Dep't of Interior, 938 F. Supp. 325, 333 (E.D. Va. 1996) ("Law enforcement officers, interviewees, sus pects, witnesses, and other individuals named in investigatory files all have substantial privacy interests" because revelation could result in "embarrassment or harassment"). SBC notes that in Alexander & Alexander Services, Inc. v. SEC, 1993 WL 439799 (D.D.C. 1993) at * 10, the district court held that Exemption 7(C) applies when "a private citi zen seeks information regarding another private citizen or corporation. . . . " SBC Application for Review at 8. [Emphasis added.] However, that case, like Washington Post, concerned the personal privacy of indi viduals named in corporate documents, not the privacy of the corpora tion itself.

43 489 U.S. 749 (1989).

44 SBC Application for Review at 4.

45 5 U.S.C. _ 552a.

46 See Reporters Committee for Freedom of the Press, 489 U.S. at 766- 68. SBC admits that Exemption 6 applies only to individuals. SBC Application for Review at 6. The Privacy Act provides on its face that it applies only to individuals. See 5 U.S.C. _ 552a (titled "Records main tained on individuals"). Reporters Committee effectively rebuts SBC's argument that EB erred in equating the protection afforded by Exemp tions 6 and 7(C). SBC Application for Review at 6. See also note 36, supua.

47 A corporation is defined as a "person" under the Administrative Procedure Act (APA), of which the FOIA is a part. See 5 U.S.C. _ 551(2). Thus, a corporation falls within the scope of FOIA Exemption 4, which speaks of commercial and financial records obtained from a person. See Lakin Law Firm, P.C., 19 FCC Rcd 12727, 12729 n.24 (2004), citing Nadler v. FDIC, 92 F.3d 93, 95 (2d Cir. 1996). The APA does not, however, define "personal" or "personal privacy." It is there fore irrelevant, for example, whether FOIA Exemption 7(B), which applies to records or information that "would deprive a person of a right to a fair trial or an impartial adjudication," applies to corporations, as SBC contends. SBC Application for Review at 6. A corporation's right to a fair trial is not based on any personal privacy interest.

48 See Reporters Committee, 489 U.S. at 762 n.13 ("The question of the statutory meaning of privacy under the FOIA is, of course, not the same as the question whether a tort action might lie for invasion of pri vacy or the question whether an individual's interest in privacy is pro tected by the Constitution."), citing Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975) (Constitution prohibits State from penalizing publi cation of name of deceased rape victim obtained from public records).

49 650 F.2d 293, 306 (D.C. Cir. 1980), cited in SBC Application for Review at 6.

50 In Hubbard, the government seized documents from non-public areas of the premises of the Church of Scientology. Subsequently, the Church proffered the documents in support of a motion asserting that the seizure was unconstitutional. The appellate court reversed the trial judge's order unsealing the documents. It held that the "single most important element" in its decision to protect the documents was that they had been put in the record solely to support a motion to demon strate the unlawfulness of the seizure and that it would undermine the Fourth Amendment for the documents to be disclosed under those cir cumstances. The fact that a corporation may have an interest in pro tecting itself from the unlawful seizure of its property does not imply that it has the distinctly different "personal privacy" interest relevant to Exemption 7(C).

51 724 F.2d 1010, 1018 (D.C. Cir. 1984), reh. granted en banc and va cated, 737 F.2d 1170 (D.C. Cir. 1984), cited in SBC Application for Re view at 5. The court en banc directed the District Court to apply a dis cretionary "good cause" analysis under Rule 26(c) of the Federal Rules of Civil Procedure, which relates to protective orders.

52 724 F.2d at 1023.

53 The privacy interest protected in Tavoulareas seems somewhat similar to the interest protected by FOIA Exemption 4, which applies to corporations as well as individuals. 5 U.S.C. § 552(b)(4) ("trade se crets and commercial or financial information obtained from a person and privileged or confidential").

54 See supra note 51.

55 Letter to Michelle A. Thomas, Executive Director, Federal Regula tory, SBC Communications, Inc., and Christopher Heimann, General Attorney, SBC Telecommunications Inc. from Hillary S. DeNigro, Dep uty Chief, Investigations and Hearings Division, Enforcement Bureau, Federal Communications Commission, dated August 24, 2004 (" LOI").

56 Letter to David Janas, Special Counsel, Investigations and Hear ings Division, Enforcement Bureau from Christopher Heimann, Gen eral Attorney, SBC Telecommunications Inc., dated September 13, 2004 ("LOI Response").

57 SBC Communications Inc., Order and Consent Decree, 19 FCC Rcd 24014 (Enf. Bur. 2004).

58 Id. at 24019, _ 13.

59 See Electronic FOIA (E-FOIA) request form from Mary C. Albert ("Requester"), Comptel / ALTS, dated April 4, 2005 ("FOIA 2005-333"). In a telephone conversation with IHD staff on April 12, 2005, the Re quester modified and clarified her FOIA request to seek only pleadings filed by SBC and correspondence between SBC and the Commission.

60 See Letter from Jim Lamoureux, Senior Counsel, SBC Services, Inc., to Judy Lancaster, Investigations and Hearings Division, En forcement Bureau, dated May 27, 2005 ("Opposition").

61 Opposition at 6.

62 Letter from Mary C. Albert, Vice President Regulatory Policy, CompTel/Ascent/ALTS to Judy Lancaster, Investigations and Hear ings Division, Enforcement Bureau, Federal Communications Commis sion, dated June 28, 2005 ("Reply")

63 Id. at 2.

64 47 C.F.R. _ 54.501(d)(3).

65 Reply at 3.

66 See 47 C.F.R. _ 0.459(b)(3).

67 See 47 C.F.R. _ 0.459(b)(5).

68 See 47 C.F.R. _ 0.459(b)(7).

69 See 47 C.F.R. _ 0.459(c).

70 See 47 C.F.R. _ 0.459(b)(7).

71 Federal Registration Numbers ("FRN"s), including those of SBC, are available to the public on the Commission Registration System ("CORES") database which is located on the Commission's internet web page. See also 47 C.F.R. 54.501(d)(3).

72 5 U.S.C. _ 552(b)(4).

73 See Critical Mass Energy Project v. NRC, 975 F.2d 87 1,880 (D.C. Cir. 1992) ("Critical Mass").

74 National Parks and Conservation Ass'n v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974) ("National Parks"); Critical Mass, 795 F.2d at 878 (citing National Parks).

75 See Critical Mass (establishing separate tests for confidential treatment of voluntary submissions and required submissions). See also

76 See SBC Communications, Inc., Order of Forfeiture, 17 FCC Rcd 7589 (2002) (forfeiture paid); Globcom Inc., Notice of Apparent Liability for Forfeiture and Order, 18 FCC Rcd 19893, n.36 (2003), response pending.

77 See, e.g., In Re The Lakin Law Firm, P.C., Memorandum Opinion and Order, 19 FCC Rcd 12727 (2004).

78 47 C.F.R. _ 54.501(d)(3) provides that "[Telecommunications] Ser vice providers shall keep and retain records of rates charged to and dis counts allowed for eligible schools and libraries-on their own or as part of a consortium. Such records shall be available for public inspec tion."

79 5 U.S.C. _ 552(b)(7)(C). See also 5 U.S.C. _ 552(b)(6); In re William McConnell, Broadcasting and Cable, Order, 18 FCC Rcd 26371 (2003).

80 See, e.g., Chadmore Communications, Inc., Memorandum Opinion and Order, 13 FCC Rcd 23943 (1998)

81 5 U.S.C. § 552(b)(5).

1. APPENDIX D

2.

3. UNITED STATES COURT OF APPEALS

4. FOR THE THIRD CIRCUIT

 

 

 

 

No. 08-4024 AT&T INC, PETITIONER

v.

FEDERAL COMMUNICATIONS COMMISSION;

UNITED STATES OF AMERICA, RESPONDENT

COMPTEL, INTERVENOR

 

 

 

 

SUR PETITION FOR REHEARING

 

 

 

 

Present: SCIRICA, Chief Judge, MCKEE, RENDELL, AMBRO, FUENTES, SMITH, FISHER, CHAGARES, JORDAN, and HARDIMAN, Circuit Judges

The petition for rehearing filed by respondent in the above entitled case having been submitted to the judges who participated in the decision of this court and to all the other available circuit judges of the circuit in regular active service, and no judge who concurred in the deci sion having asked for rehearing, and a majority of the circuit judges of the circuit in regular active service not having voted for rehearing by the court en banc, the petition for rehearing is denied.

 

 

By the Court,

 

/s/ MICHAEL A. CHAGARES

MICHAEL A. CHAGARES

Circuit Judge

 

DATED: November 23, 2009

5.

APPENDIX E

 

1. 5 U.S.C. 551, provides in pertinent part:

Definitions

For the purpose of this subchapter-

(1) "agency" means each authority of the Govern ment of the United States, whether or not it is within or subject to review by another agency, but does not in clude-

(A) the Congress;

(B) the courts of the United States;

(C) the governments of the territories or posses sions of the United States;

(D) the government of the District of Columbia;

or except as to the requirements of section 552 of this title-

(E) agencies composed of representatives of the parties or of representatives of organizations of the parties to the disputes determined by them;

(F) courts martial and military commissions;

(G) military authority exercised in the field in time of war or in occupied territory; or

(H) functions conferred by sections 1738, 1739, 1743, and 1744 of title 12; chapter 2 of title 41; subchapter II of chapter 471 of title 49; or sections 1884, 1891-1902, and former section 1641(b)(2), of title 50, appendix;

 

(2) "person" includes an individual, partnership, cor poration, association, or public or private organization other than an agency;

* * * * *

 

2. The Freedom of Information Act, 5 U.S.C. 552,1 pro vides in pertinent part:

Public information; agency rules, opinions, orders, re cords, and proceedings

(a) Each agency shall make available to the public in formation as follows:

* * * * *

(3)(A) Except with respect to the records made avail able under paragraphs (1) and (2) of this subsection, and except as provided in subparagraph (E), each agency, upon any request for records which (i) reasonably de scribes such records and (ii) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records promptly available to any person.

* * * * *

(E) An agency, or part of an agency, that is an ele ment of the intelligence community (as that term is de fined in section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4))) shall not make any record available under this paragraph to-

(i) any government entity, other than a State, territory, commonwealth, or district of the United States, or any subdivision thereof; or

(ii) a representative of a government entity de scribed in clause (i).

* * * * *

(b) This section does not apply to matters that are-

(1)(A) specifically authorized under criteria estab lished by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order;

(2) related solely to the internal personnel rules and practices of an agency;

(3) specifically exempted from disclosure by statute (other than section 552b of this title), if that statute-

(A)(i) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or

(ii) establishes particular criteria for withhold ing or refers to particular types of matters to be withheld; and

(B) if enacted after the date of enactment of the OPEN FOIA Act of 2009, specifically cites to this paragraph.

(4) trade secrets and commercial or financial infor mation obtained from a person and privileged or confi dential;

(5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency;

(6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwar ranted invasion of personal privacy;

(7) records or information compiled for law enforce ment purposes, but only to the extent that the produc tion of such law enforcement records or information (A) could reasonably be expected to interfere with en forcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwar ranted invasion of personal privacy, (D) could reason ably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or au thority or any private institution which furnished infor mation on a confidential basis, and, in the case of a re cord or information compiled by criminal law enforce ment authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source, (E) would disclose techniques and procedures for law enforcement investigations or prose cutions, or would disclose guidelines for law enforce ment investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or (F) could reasonably be expected to endanger the life or physical safety of any individual;

(8) contained in or related to examination, operat ing, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; or

(9) geological and geophysical information and data, including maps, concerning wells.

* * * * *

(f) For purposes of this section, the term-

(1) "agency" as defined in section 551(1) of this title includes any executive department, military department, Government corporation, Government controlled corpo ration, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency; and

(2) "record" and any other term used in this section in reference to information includes-

(A) any information that would be an agency re cord subject to the requirements of this section when maintained by an agency in any format, including an electronic format; and

(B) any information described under subpara graph (A) that is maintained for an agency by an en tity under Government contract, for the purposes of records management.

* * * * *

 

 

3. 47 C.F.R. 0.457 provides in pertinent part:

Records not routinely available for public inspection.

The records listed in this section are not routinely available for public inspection pursuant to 5 U.S.C. 552(b). The records are listed in this section by cate gory, according to the statutory basis for withholding those records from inspection; under each category, if appropriate, the underlying policy considerations affect ing the withholding and disclosure of records in that category are briefly outlined. Except where the records are not the property of the Commission or where the disclosure of those records is prohibited by law, the Commission will entertain requests from members of the public under § 0.461 for permission to inspect partic ular records withheld from inspection under the provi sions of this section, and will weigh the policy consider ations favoring non-disclosure against the reasons cited for permitting inspection in the light of the facts of the particular case. In making such requests, there may be more than one basis for withholding particular records from inspection. The listing of records by category is not intended to imply the contrary but is solely for the information and assistance of persons making such re quests. Requests to inspect or copy the transcripts, re cordings or minutes of closed agency meetings will be considered under § 0.607 rather than under the provi sions of this section.

(a) Materials that are specifically authorized under criteria established by Executive Order (E.O.) to be kept secret in the interest of national defense or foreign pol icy and are in fact properly classified pursuant to such Executive Order, 5 U.S.C. 552(b)(1). * * * *

(b) Materials that are related solely to the internal personnel rules and practices of the Commission, 5 U.S.C. 552(b)(2). * * * *

(c) Materials that are specifically exempted from disclosure by statute (other than the Government in the Sunshine Act, 5 U.S.C. 552b, provided that such statute either requires that the materials be withheld from the public in such a manner as to leave no discretion on the issue, or establishes particular criteria for withholding or refers to particular types of materials to be with held). * * * *

(d) Trade secrets and commercial or financial in formation obtained from any person and privileged or confidential-categories of materials not routinely available for public inspection, 5 U.S.C. 552(b)(4) and 18 U.S.C. 1905.

(1) The materials listed in this paragraph have been accepted, or are being accepted, by the Commission on a confidential basis pursuant to 5 U.S.C. 552(b)(4). To the extent indicated in each case, the materials are not routinely available for public inspection. If the protec tion afforded is sufficient, it is unnecessary for persons submitting such materials to submit therewith a request for non-disclosure pursuant to § 0.459. A persuasive showing as to the reasons for inspection will be required in requests submitted under § 0.461 for inspection of such materials.

(i) Financial reports submitted by radio or televi sion licensees.

(ii) Applications for equipment authorizations (type acceptance, type approval, certification, or ad vance approval of subscription television systems), and materials relating to such applications, are not routinely available for public inspection prior to the effective date of the authorization. The effective date of the authorization will, upon request, be de ferred to a date no earlier than that specified by the applicant. Following the effective date of the autho rization, the application and related materials (in cluding technical specifications and test measure ments) will be made available for inspection upon request (see § 0.460). Portions of applications for equipment certification of scanning receivers and related materials will not be made available for in spection.

(iii) Information submitted in connection with au dits, investigations and examination of records pur suant to 47 U.S.C. 220.

(iv) Programming contracts between program mers and multichannel video programming distribu tors.

(v) The rates, terms and conditions in any agree ment between a U.S. carrier and a foreign carrier that govern the settlement of U.S. international traf fic, including the method for allocating return traffic, if the U.S. international route is exempt from the international settlements policy under § 43.51(e)(3) of this chapter.

(vi) Outage reports filed under Part 4 of this chap ter.

(vii) The following records, relating to coordina tion of satellite systems pursuant to procedures codi fied in the International Telecommunication Union (ITU) Radio Regulations:

* * * * *

(2) Unless the materials to be submitted are listed in paragraph (d)(1) of this section and the protection thereby afforded is adequate, any person who submits materials which he or she wishes withheld from public inspection under 5 U.S.C. 552(b)(4) must submit a re quest for non-disclosure pursuant to § 0.459. If it is shown in the request that the materials contain trade secrets or privileged or confidential commercial, finan cial or technical data, the materials will not be made routinely available for inspection; and a persuasive showing as to the reasons for inspection will be required in requests for inspection submitted under § 0.461. In the absence of a request for non-disclosure, the Commis sion may, in the unusual instance, determine on its own motion that the materials should not be routinely avail able for public inspection.

(e) Interagency and intra-agency memoranda or letters, 5 U.S.C. 552(b)(5). * * * *

(f) Personnel, medical and other files whose disclo sure would constitute a clearly unwarranted invasion of personal privacy, 5 U.S.C. 552(b)(6). * * * *

(g) Under 5 U.S.C. 552(b)(7), records compiled for law enforcement purposes, to the extent that production of such records:

(1) Could reasonably be expected to interfere with enforcement proceedings;

(2) Would deprive a person of a right to fair trial or an impartial adjudication;

(3) Could reasonably be expected to constitute an unwarranted invasion of personal privacy;

(4) Could reasonably be expected to disclose the identity of a confidential source;

(5) Would disclose investigative techniques or proce dures or would disclose investigative guidelines if such disclosure could reasonably be expected to risk circum vention of the law; or

(6) Could reasonably be expected to endanger the life or physical safety of any individual.

 

4. 47 C.F.R. 0.461 provides in pertinent part:

Requests for inspection of materials not routinely avail able for public inspection.

Any person desiring to inspect Commission records that are not listed in § 0.453 or § 0.455 shall file a re quest for inspection meeting the requirements of this section. The FOIA Public Liaison is available to assist persons seeking records under this section. See § 0.441(a).

(a)(1) Records include:

* * * * *

(b)(1) Requests shall be captioned "Freedom of In formation Act Request," shall be dated, shall list the telephone number (if any), street address, and e-mail address (if any) of the person making the request, and should reasonably describe, for each document re quested (see § 0.461(a)(1)), all information known to the person making the request that would be helpful in iden tifying and locating the document.

* * * * *

(c) If the records are of the kinds listed in § 0.457 or if they have been withheld from inspection under § 0.459, the request shall, in addition, contain a state ment of the reasons for inspection and the facts in sup port thereof. In the case of other materials, no such statement need accompany the request, but the custo dian of the records may require the submission of such a statement if he or she determines that the materials in question may lawfully be withheld from inspection.

(d)(1) Requests shall be

(i) Delivered or mailed to the Managing Direc tor, FCC, 445-12th Street, SW., Room 1-A836, Washington, DC 20554;

(ii) Sent by e-mail to foia@fcc.gov;

(iii) Filed electronically though the Internet at http://www.fcc.gov/foia/#reqform; or

(iv) Sent by facsimile to (202) 418-2826 or (202) 418-0521. If the request is filed by mail or facsimile, an original and two copies of the request shall be submitted. If the request is enclosed in an envelope, the envelope shall be marked, "Freedom of Informa tion Act Request."

(2) For purposes of this section, the custodian of the records is the Chief of the Bureau or Office where the records are located. The Chief of the Bureau or Office may designate an appropriate person to act on a FOIA request.

(3) If the request is for materials submitted to the Commission by third parties and not open to routine public inspection under § 0.457(d), § 0.459, or another Commission rule or order, or if a request for confidenti ality is pending pursuant to § 0.459, or if the custodian of records has reason to believe that the information may contain confidential commercial information, one copy of the request will be provided by the custodian of the records (see § 0.461(e)) to the person who originally submitted the materials to the Commission. If there are many persons who originally submitted the records and are entitled to notice under this paragraph, the custo dian of records may use a public notice to notify the sub mitters of the request for inspection. The submitter or submitters will be given ten calendar days to respond to the FOIA request. See § 0.459(d)(1). If a submitter has any objection to disclosure, he or she is required to sub mit a detailed written statement specifying all grounds for withholding any portion of the information (see § 0.459). This response shall be served on the party seeking to inspect the records. The requester may sub mit a reply within ten business days unless a different period is specified by the custodian of records. The re ply shall be served on all parties that filed a response. In the event that a submitter fails to respond within the time specified, the submitter will be considered to have no objection to disclosure of the information.

* * * * *

(f) Requests for inspection of records will be acted on as follows by the custodian of the records.

(1) If the Commission is prohibited from disclosing the records in question, the request for inspection will be denied with a statement setting forth the specific grounds for denial.

(2)(i) If records in the possession of the Commission are the property of another agency, the request will be referred to that agency and the person who submitted the request will be so advised, with the reasons for re ferral.

(ii) If it is determined that the FOIA request seeks only records of another agency or department, the FOIA requester will be so informed by the FOIA Control Officer and will be directed to the correct agency or department.

(3) If it is determined that the Commission does not have authority to withhold the records from public in spection, the request will be granted.

(4) If it is determined that the Commission does have authority to withhold the records from public in spection, the considerations favoring disclosure and non-disclosure will be weighed in light of the facts pre sented, and the request will be granted, either condition ally or unconditionally, or denied.

(5) If there is a statutory basis for withholding part of a document from inspection, that part will be deleted and the remainder will be made available for inspection. Records disclosed in part shall be marked or annotated to show the amount of information deleted unless doing so would harm an interest protected by an applicable exemption. The location of the information deleted and the exemption under which the deletion is made also shall be indicated on the record, if technically feasible.

(6) In locating and recovering records responsive to an FOIA request, only those records within the Commis sion's possession and control as of the date of its receipt of the request shall be considered.

* * * * *

(i)(1) If a request for inspection of records submitted to the Commission in confidence under § 0.457(d), § 0.459, or another Commission rule or order is granted in whole or in part, an application for review may be filed by the person who submitted the records to the Commission, by a third party owner of the records or by a person with a personal privacy interest in the records, or by the person who filed the request for inspection of records within the ten business days after the date of the written ruling. The application for review and the envelope containing it (if any) shall be captioned "Re view of Freedom of Information Action." The applica tion for review shall be filed within ten business days after the date of the written ruling, shall be delivered or mailed to the General Counsel, and shall be served on the person who filed the request for inspection of re cords and any other parties to the proceeding. The per son who filed the request for inspection of records may respond to the application for review within ten business days after it is filed.

* * * * *

1 As amended by the OPEN FOIA Act of 2009, Pub. L. No. 111-83, § 564(b), 123 Stat. 2184 (amending 5 U.S.C. 552(b)(3)), and the OPEN Government Act of 2007, Pub. L. No. 110-175, § 9, 121 Stat. 2528 (amending 5 U.S.C. 552(f)(2)).