AT&T Seeks Legal Protection For Disparaging Memos

AT&T argued in the Supreme Court today that it has a personal privacy right that protects internal documents from public disclosure. The FCC has been asked by some of AT&T’s competitors to release case files relating to a 2004 investigation of AT&T for overcharging customers.

The request from the competitors was made under the Freedom of Information Act (FOIA), but FOIA has exemptions for some kinds of information, such as trade secrets and medical information. Further, it exempts some information that “constitute[s] a clearly unwarranted invasion of personal privacy.”

AT&T has not said precisely what information it is trying to protect. In response to questions from Supreme Court Justices about what kinds of information would not fall under the exception for trade secrets and confidential information, AT&T’s lawyer suggested there could be emails between corporate officers disparaging federal regulators or large customers. The corporate officers could assert a “personal privacy” right to have their names redacted from the emails, but the content of the emails would still be made public.

Most of the Justices seemed skeptical of the idea that Congress could have meant to include corporations when it wrote “personal privacy” into the law, but Justice Samuel Alito pointed out that most laymen would probably be surprised to learn that the legal term “person” generally includes corporations. “That’s legalese,” Alito said.

After last year’s decision in Citizens United v. FEC, where the Supreme Court said corporations have First Amendment rights to run political ads, many court-watchers have been interested in seeing how far the Supreme Court will extend rights of corporations. In the oral arguments today, at least, the Justices seemed hesitant to offer corporations legal protection against embarrassment and bad press.

The case, FCC v. AT&T, will likely be decided before summer. Justice Elena Kagan is not participating because of her involvement when she was the Solicitor General.