It has been a pretty good week for those interested in Freedom of Information and open government issues.
On Tuesday, the Supreme Court ruled in a FOIA case that corporations don’t have “personal privacy” rights. On the surface, that hardly seems shocking.
But there had been concern the court would side with corporations, given last year’s Citizens United decision, which allowed corporations to spend their own money on political campaigns, citing First Amendment reasons and, to some extent, equating corporations with individuals.
As it turned out, there was little need to worry in the AT&T privacy case. The ruling, written by Chief Justice John Roberts, was unanimous (Justice Elena Kagan didn’t take part because she had been involved in the case when she was solicitor general). To Roberts and the other justices the decision turned on the meaning of “personal.”
Roberts writes, “In fact, ‘personal’ is often used to mean precisely the opposite of business-related: We speak of personal expenses and business expenses, personal life and work life, personal opinion and a company’s view. Dictionary definitions also suggest that ‘personal’ does not ordinarily relate to artificial ‘persons’ like corporations.”
The meaning was important because AT&T was trying to prevent disclosure of records relating to an investigation by the Federal Communications Commission. AT&T agreed in 2004 to pay a $500,000 fine for overbilling in a government program, without admitting wrongdoing. Following the settlement, CompTel, a trade association of the company’s industry competitors, asked the FCC for records of the investigation.
AT&T argued that disclosure was prevented by Exemption 7c of the Freedom of Information Act, which provides that law enforcement records can be withheld if they "could reasonably be expected to constitute an unwarranted invasion of personal privacy." Through administrative appeals and the district courts, the FCC prevailed, arguing that corporations don’t have personal privacy. But the U.S. Court of Appeals for the 3rd Circuit ruled in favor of the company in 2009. The FCC appealed the decision to the Supreme Court.
Even though the court ruled against AT&T’s privacy argument, in the initial stages of the case the FCC brief notes that company was able to avoid disclosure of substantial amounts of information, including “costs and pricing data, its billing and payment dates and identifying information of [AT&T’s] staff, contractors and the representatives of its contractors and customers.” Those items were withheld under Exemption 4 of FOIA, which protects trade secrets.
When it comes to getting information about companies (including government contractors), Exemption 4 is a much bigger barrier to disclosure. We will have considerably more to say about the trade-secrets issue and the problems it poses to open government as time goes by.
Senators move to open Medicare database
Another good development this week was the introduction of a bill by Sen. Charles Grassley, R-Iowa, and Sen. Ron Wyden, D-Ore., to provide more access to Medicare billing records. They acted after investigations by The Wall Street Journal (link may require a subscription) and the Center for Public Integrity revealed that the data shows the potential for widespread fraud and abuse.
The database, which identifies doctors and hospitals, has been off-limits since 1979, when a Florida court enjoined release of the database. The Journal and the Center got access to part of the records last year, but much remains out of the public view. The Journal has sued to overturn the 1979 ruling.
Both Grassley and Wyden make the case that better disclosure might prevent waste, fraud and abuse, which would hold down government spending. It would be good if more members of Congress saw things this way. We will be closely watching developments on this bill.
An unfortunate bill in Utah
This blog focuses on federal issues.
But on occasion we also will report on developments at the state and local level, like the attempt by lawmakers in Utah, led by Representative John Dougall, which the Salt Lake Tribune says, “would keep private many of the records produced or received by the legislature, including constituent correspondence.” The bill also would increase the amount the Utah state government could charge for providing public records to the public.
Among other things, the legislators would cut off access to their text messages, under the guise of protecting the privacy of their constituents. And some lawmakers said that the bill would reduce burdens on officials who, they said, are dealing with large numbers of open records requests.
Open-government advocates in Utah say the bill would undermine the state’s Government Records Access and Management Act.
The state House of Representatives passed the bill Thursday, just a day after its introduction, and the State Senate has scheduled a hearing for Friday.
We applaud ABC 4 in Salt Lake City for challenging the governor about his role in the legislation. KSL also provided good depth coverage, including some polling showing that, in general, Utahans support open records. Journalists are often too timid in their coverage of freedom of information issues.