The Corner

FOIA’s Fate in SCOTUS’s Hands


Over at RedState, Joshua Trevino notes an important case that will be argued before the Supreme Court tomorrow, Federal Communications Commission v. AT&T, Inc. He comments that, “if decided wrongly, it has the potential to transform the federal government’s Freedom of Information Act into a powerful anti-business weapon.” The case originated innocently: in 2004 AT&T realized that it had accidentally overbilled the federal government on some of its work. AT&T reported its mistakes to the FCC, but the FCC demanded an investigation. So At&T handed over gobs of memoranda, proprietary information, invoices, emails, accounting information, etc. As Trevino describes:

Therein lay the cause of the trouble. Once this information was in the FCC’s hands, a trade association called CompTel — comprised of AT&T’s competitors — filed a FOIA [Freedom of Information Act] request for all the hitherto-proprietary AT&T info in the FCC’s possession. This abuse of the intent of FOIA, which was meant to promote open government rather than corporate intelligence gathering, was — to the surprise of many observers — validated by the FCC in late 2008, when it ruled that corporations are not protected by FOIA’s privacy exemptions. Just over one year later, the Third Circuit Court of Appeals overruled the FCC (PDF) in a defense of FOIA’s plain intent.

Now the FCC has appealed to the Supreme Court.

Tomorrow’s case could determine whether the Freedom of Information Act will be captured by private interests, becoming a tool for competition among firms — or for ideologues’ abuses against business — rather than for citizens against government abuses. 


The Latest