No. 09-1279 
 
 
IN THE 
Supreme Court of the United States 
__________ 
 
FEDERAL COMMUNICATIONS COMMISSION 
AND UNITED STATES OF AMERICA, 
Petitioners, 
v. 
 
AT&T INC., ET AL., 
Respondents. 
__________ 
 
On Petition for a Writ of Certiorari 
to the United States Court of Appeals 
for the Third Circuit 
__________ 
 
BRIEF IN OPPOSITION FOR 
RESPONDENT AT&T INC. 
__________ 
 
D. WAYNE WATTS 
AT&T INC. 
208 S. Akard Street 
Suite 3702 
Dallas, Texas 75202 
(214) 757-3300 
 
PAUL K. MANCINI 
GARY L. PHILLIPS 
TERRI HOSKINS 
AT&T SERVICES INC. 
1120 20th Street, N.W. 
Suite 1000   
Washington, D.C. 20036 
(202) 457-3055 
 
GEOFFREY M. KLINEBERG 
   Counsel of Record 
BRENDAN J. CRIMMINS 
KELLOGG, HUBER, HANSEN, 
   TODD, EVANS & FIGEL, 
   P.L.L.C. 
1615 M Street, N.W. 
Suite 400 
Washington, D.C. 20036 
(202) 326-7900 
(gklineberg@khhte.com) 
 
 
 
July 13, 2010
Counsel for AT&T Inc. 
 
 
QUESTION PRESENTED 
Whether the court of appeals properly granted the 
petition for review and remanded the matter to the 
Federal Communications Commission (“FCC”) for 
further proceedings, where the FCC had concluded 
that corporations are categorically excluded from the 
protections of Exemption 7(C) of the Freedom of              
Information Act, 5 U.S.C. § 552(b)(7)(C), which pre-
vents unwarranted invasions of “personal privacy,” 
and where the statute defines the root word “person” 
to include “corporation[s],” id. § 551(2). 
 
  
 
 
ii
CORPORATE DISCLOSURE STATEMENT 
Pursuant to Rule 29.6 of the Rules of this Court, 
respondent AT&T Inc. states the following: 
AT&T Inc. is a publicly held company that has no 
parent company, and no publicly held company owns 
10% or more of its stock. 
 
 
 
 
iii 
TABLE OF CONTENTS 
Page 
QUESTION PRESENTED .......................................... i 
CORPORATE DISCLOSURE STATEMENT ............ ii 
TABLE OF AUTHORITIES ...................................... iv 
STATEMENT OF THE CASE .................................... 1 
REASONS FOR DENYING THE WRIT .................. 11 
I. THIS COURT’S REVIEW OF THE 
COURT OF APPEALS’ INTERPRE-
TATION OF EXEMPTION 7(C) IS 
UNWARRANTED ......................................... 12 
A. There Is No Division of Authority 
Warranting This Court’s Interven-
tion .......................................................... 12 
B. The Government’s Claim of Adverse 
Consequences Is Speculative and 
Insubstantial ........................................... 18 
C. The Interlocutory Posture of This 
Case Makes This Court’s Review 
Particularly Inappropriate at This 
Time ........................................................ 20 
II. THE COURT OF APPEALS CORRECTLY              
INTERPRETED THE STATUTE ..................... 22 
CONCLUSION .......................................................... 31 
  
 
 
iv
TABLE OF AUTHORITIES 
Page 
CASES 
Asahi Metal Indus. Co. v. Superior Court, 
480 U.S. 102 (1987) ............................................. 27 
Bast v. United States Dep’t of Justice, 665 F.2d 
1251 (D.C. Cir. 1981) ........................................... 24 
Brotherhood of Locomotive Firemen v. Bangor 
& Aroostook R.R. Co., 389 U.S. 327 (1967) ......... 21 
CompTel v. FCC, No. 1:06-cv-01718-HHK 
(D.D.C. Mar. 5, 2008) ............................................ 6 
Computer Prof’ls for Soc. Responsibility v. 
United States Secret Serv., 72 F.3d 897 
(D.C. Cir. 1996) .................................................... 19 
Consolidated Edison Co. v. Pataki, 292 F.3d 
338 (2d Cir. 2002) ...........................................28, 29 
County of Santa Clara v. Southern Pac. R.R. 
Co., 118 U.S. 394 (1886) ...................................... 29 
Davin v. United States Dep’t of Justice, 60 F.3d 
1043 (3d Cir. 1995) .......................................... 2, 24 
Dow Chem. Co. v. United States, 476 U.S. 227 
(1986) ................................................................... 28 
FBI v. Abramson, 456 U.S. 615 (1982) ................. 2, 31 
First Nat’l Bank v. Bellotti, 435 U.S. 765 
(1978) ................................................................... 29 
FLRA v. United States Dep’t of Veterans        
Affairs, 958 F.2d 503 (2d Cir. 1992).................... 17 
Forest Serv. Employees for Envtl. Ethics v. 
United States Forest Serv., 524 F.3d 1021 
(9th Cir. 2008) ...................................................... 17 
 
 
v 
G.M. Leasing Corp. v. United States, 429 U.S. 
338 (1977) ............................................................ 28 
Grosjean v. American Press Co., 297 U.S. 233 
(1936) ................................................................... 27 
Hamilton-Brown Shoe Co. v. Wolf Bros. & Co., 
240 U.S. 251 (1916) ............................................. 21 
Horowitz v. Peace Corps, 428 F.3d 271 (D.C. 
Cir. 2005) ............................................................. 17 
Hughes Aircraft Co. v. Jacobson, 525 U.S. 432 
(1999) ................................................................... 22 
Judicial Watch, Inc. v. FDA, 449 F.3d 141 
(D.C. Cir. 2006) ............................. 14, 15, 16, 18, 30 
Keene Corp. v. United States, 508 U.S. 200 
(1993) ................................................................... 23 
Minneapolis & St. Louis Ry. Co. v. Beckwith, 
129 U.S. 26 (1889) ............................................... 29 
Multi Ag Media LLC v. Department of Agric., 
515 F.3d 1224 (D.C. Cir. 2008) ......................15, 16 
National Archives & Records Admin. v. Favish, 
541 U.S. 157 (2004) ................................................ 27 
National Parks & Conservation Ass’n v. 
Kleppe, 547 F.2d 673 (D.C. Cir. 1976) ................ 16 
Sims v. CIA, 642 F.2d 562 (D.C. Cir. 1980) ............. 16 
St. Michael’s Convalescent Hosp. v. California, 
643 F.2d 1369 (9th Cir. 1981) ........................ 23-24 
United States v. Martin Linen Supply Co., 
430 U.S. 564 (1977) ............................................. 29 
United States v. Mendoza, 464 U.S. 154           
(1984) ..............................................................20, 22 
 
 
vi
United States v. Morton Salt Co., 338 U.S. 632 
(1950) ................................................................... 28 
United States Dep’t of Justice v. Reporters 
Comm. for Freedom of the Press, 489 U.S. 
749 (1989) ............................................. 1, 2, 9, 24, 28 
Washington Post Co. v. United States Dep’t of 
Justice, 863 F.2d 96 (D.C. Cir. 1988) .............13, 14 
 
ADMINISTRATIVE DECISIONS 
Consent Decree, SBC Communications Inc.,          
19 FCC Rcd 24015 (2004) ...................................... 3, 4 
Notice of Proposed Rulemaking and Further 
Notice of Proposed Rulemaking, Compre-
hensive Review of Universal Service Fund 
Management, Administration, and Over-
sight, 20 FCC Rcd 11308 (2005) ............................ 3 
Order, SBC Communications Inc., 19 FCC Rcd 
24014 (Enf. Bur. 2004) .......................................... 4 
Second Report and Order and Further Notice 
of Proposed Rulemaking, Schools and               
Libraries Universal Service Support Mech-
anism, 18 FCC Rcd 9202 (2003) ............................ 3 
 
CONSTITUTION, STATUTES, AND 
 REGULATIONS 
U.S. Const.: 
 Art. I, § 9, cl. 3 (Bill of Attainder Clause) ........... 29 
 Amend. I............................................................... 29 
 Amend. IV .......................................................28, 29 
 
 
vii 
 Amend. V .................................................. 27, 28, 29 
 Double Jeopardy Clause ................................ 29 
 Due Process Clause ........................................ 29 
 Amend. XIV ......................................................... 27 
 Due Process Clause ........................................ 29 
 Equal Protection Clause ................................ 29 
Administrative Procedure Act, 5 U.S.C. § 551 
et seq.  ................................................................. 1, 2 
 5 U.S.C. § 551(2) ............................... 2, 8, 12, 22, 26 
Communications Act of 1934, 47 U.S.C. § 151 
et seq.  ..................................................................... 7 
 47 U.S.C. § 402(a) .................................................. 7 
Freedom of Information Act, 5 U.S.C. § 552 ..... passim 
 5 U.S.C. § 552(a)(2) .............................................. 30 
 5 U.S.C. § 552(a)(3) ................................................ 1 
 5 U.S.C. § 552(a)(3)(A) ........................................... 1 
 5 U.S.C. § 552(a)(6)(A)(i) ....................................... 6 
 5 U.S.C. § 552(a)(6)(C)(i) ....................................... 6 
 5 U.S.C. § 552(b) .................................................... 1 
 5 U.S.C. § 552(b)(4) (Exemption 4) ....................... 5 
 5 U.S.C. § 552(b)(6) (Exemption 6) ..... 8, 14, 15, 16, 
17, 18, 29, 30, 31 
 5 U.S.C. § 552(b)(7)(C) (Exemption 7(C)) ...  passim 
 5 U.S.C. § 552(b)(7)(F) (Exemption 7(F)) ........ 8, 23 
 5 U.S.C. § 552(e) .................................................. 24 
 
 
viii
Privacy Act of 1974, 5 U.S.C. § 552a ...................23, 24 
 5 U.S.C. § 552a(a)(1) ............................................ 24 
 5 U.S.C. § 552a(a)(2) .......................................23, 24 
28 U.S.C. § 1391(c) .................................................... 27 
28 U.S.C. § 2342(1) ..................................................... 7 
47 C.F.R.: 
 § 0.457 .............................................................10, 20 
 § 0.457(g)(3) .................................................. 3, 5, 20 
 § 0.459 .................................................................. 10 
 § 0.459(a)(1) ......................................................... 10 
 § 0.461 .................................................................. 20 
 §§ 54.500-54.523 .................................................... 3 
 §§ 54.701-54.702 .................................................... 3 
 
OTHER MATERIALS 
Cindy R. Alexander, On the Nature of the             
Reputational Penalty for Corporate Crime:  
Evidence, 42 J.L. & Econ. 489 (1999) ................. 25 
Richard A. Bierschbach & Alex Stein, Over-
enforcement, 93 Geo. L.J. 1743 (2005) ................ 25 
Brief for the Federal Energy Regulatory            
Commission in Opp., Coral Power, L.L.C.            
v. California ex rel. Brown, Nos. 06-888 & 
06-1100 (U.S. filed Apr. 25, 2007) ....................... 21 
Daniel R. Fischel & Alan O. Sykes, Corporate 
Crime, 25 J. Legal Stud. 319 (1996) ................... 25 
 
 
ix
U.S. Dep’t of Justice: 
 Attorney General’s Memorandum on the 
1974 Amendments to the Freedom of Infor-
mation Act (Feb. 1975) ........................................ 31 
 Attorney General’s Memorandum on the 
Public Information Section of the Adminis-
trative Procedure Act (June 1967) ..................30, 31 
Webster’s New International Dictionary (2d ed. 
1950) ................................................................22, 27 
Webster’s Third New International Dictionary 
(2002) ..............................................................22, 27 
 
 
STATEMENT OF THE CASE 
On April 4, 2005, respondent CompTel – a trade 
association representing competitors of respondent 
AT&T Inc. – submitted a request under the Freedom 
of Information Act (“FOIA”), 5 U.S.C. § 552(a)(3), 
seeking documents that AT&T submitted to petition-
er the Federal Communications Commission (“FCC” 
or “Commission”) as part of a confidential FCC inves-
tigation.  See C.A. App. A27.  Upon receiving notice            
of CompTel’s request, AT&T submitted a letter              
opposing that request on the ground that the AT&T 
documents included in the FCC’s internal file were 
protected from mandatory disclosure by FOIA’s law-
enforcement exemption, Exemption 7(C), 5 U.S.C. 
§ 552(b)(7)(C).  See C.A. App. A28-A36.  On August            
5, 2005, the FCC’s Enforcement Bureau ruled that 
AT&T, as a corporation, is not entitled to invoke Ex-
emption 7(C).  See Pet. App. 34a-44a.  On September 
12, 2008, the FCC released an order denying AT&T’s 
application for review of the Enforcement Bureau’s 
order.  See id. at 19a-33a.  On September 22, 2009, 
the court of appeals granted AT&T’s petition for re-
view of the FCC’s order and remanded the case to the 
FCC for further proceedings.  See id. at 1a-18a. 
1. Enacted as an amendment to the Adminis-
trative Procedure Act (“APA”) in 1966, the statute 
known as FOIA generally requires a federal agency 
such as the FCC to disclose records upon request,              
unless a statutory exemption applies.  See 5 U.S.C. 
§ 552(a)(3)(A) (general disclosure requirement); id. 
§ 552(b) (exemptions).  FOIA “was designed to create 
a broad right of access to official information” – that 
is, information “that sheds light on an agency’s per-
formance of its statutory duties.”  United States Dep’t 
of Justice v. Reporters Comm. for Freedom of the 
 
 
2
Press, 489 U.S. 749, 772-73 (1989) (internal quotation 
marks omitted).  As this Court explained in Reporters 
Committee, that congressional purpose “is not fos-
tered by disclosure of information about private citi-
zens that is accumulated in various governmental 
files but that reveals little or nothing about an agen-
cy’s own conduct.”  Id. at 773. 
One of FOIA’s exemptions from mandatory disclo-
sure – Exemption 7(C) – provides that FOIA “does 
not apply to matters that are . . . records or informa-
tion compiled for law enforcement purposes, . . . to 
the extent that the production of such law enforce-
ment records or information . . . could reasonably be 
expected to constitute an unwarranted invasion of 
personal privacy.”  5 U.S.C. § 552(b)(7)(C).  The APA, 
which FOIA amended, defines “person” – the noun 
form of the term “personal” in Exemption 7(C) – to 
include “an individual, partnership, corporation, as-
sociation, or public or private organization other than 
an agency.”  Id. § 551(2).  Exemption 7(C) reflects 
Congress’s judgment that “[s]uspects, interviewees 
and witnesses” in law-enforcement investigations 
“have a privacy interest because disclosure may result 
in embarrassment or harassment.”  Davin v. United 
States Dep’t of Justice, 60 F.3d 1043, 1058 (3d Cir. 
1995).  Exemption 7(C) also guards against the               
“potential disruption in the flow of information to law 
enforcement agencies” caused by a fear “of the pros-
pect of disclosure.”  FBI v. Abramson, 456 U.S. 615, 
630 (1982); see Pet. App. 14a n.5. 
FOIA itself does not prohibit an agency from dis-
closing records to which an exemption from manda-
tory disclosure applies.  However, the FCC has 
promulgated a regulation prohibiting it from disclos-
ing material that belongs to a third party and is              
 
 
3
otherwise covered by Exemption 7(C).  See 47 C.F.R. 
§ 0.457(g)(3); Pet. App. 7a n.2. 
2.a.  In August 2004, AT&T voluntarily and confi-
dentially informed the FCC of concerns regarding 
certain invoices related to the FCC “E-Rate” pro-
gram.  See Pet. App. 2a-3a.  The E-Rate program is 
the universal service mechanism designed to assist 
schools and libraries in gaining access to affordable 
telecommunications services and Internet access.  
See id. at 2a.
1
  In its disclosure to the FCC, AT&T 
explained that its Connecticut subsidiary, Southern 
New England Telephone Company, had submitted 
arguably improper invoices to the universal service 
fund administrator relating to certain services pro-
vided to the New London, Connecticut school district.  
See id. at 2a-3a.
2
  AT&T refunded to the universal 
service fund administrator all amounts collected pur-
suant to the questionable invoices, and it cancelled 
outstanding invoices that raised similar concerns.  
See Consent Decree, SBC Communications Inc., 19 
FCC Rcd 24015, ¶ 3 (2004) (“Consent Decree”). 
In response to AT&T’s voluntary disclosure, the 
FCC’s Enforcement Bureau conducted an investiga-
tion.  See Pet. App. 3a.  In the course of the Enforce-
                                                 
1
 See 47 C.F.R. §§ 54.500-54.523; Second Report and Order 
and Further Notice of Proposed Rulemaking, Schools and               
Libraries Universal Service Support Mechanism, 18 FCC Rcd 
9202, ¶¶ 1-90 (2003) (describing E-Rate). 
2
 The universal service fund administrator is an independent, 
not-for-profit corporation that administers the federal universal 
service fund on behalf of the FCC.  See Notice of Proposed 
Rulemaking and Further Notice of Proposed Rulemaking, Com-
prehensive Review of Universal Service Fund Management,              
Administration, and Oversight, 20 FCC Rcd 11308, ¶ 4 (2005); 
47 C.F.R. §§ 54.701-54.702. 
 
 
4
ment Bureau’s investigation, the Bureau ordered 
AT&T to produce, and AT&T did produce, a wide 
range of documents.  See id.  Those documents in-
cluded detailed written responses to the Enforcement 
Bureau’s interrogatories; names and job descriptions 
of AT&T employees involved in the arguably improp-
er billing; completed universal service fund invoice 
forms; internal AT&T emails (including documents 
attached to those emails) that provided cost, pricing, 
and billing information in connection with the services 
provided to New London public schools and that indi-
cated how AT&T came to invoice the universal service 
fund for certain aspects of those services; and AT&T’s 
written views regarding whether and the extent to 
which its employees had violated AT&T’s Code of 
Business Conduct.  See id. 
In December 2004, the FCC adopted a consent de-
cree resolving its investigation; the order and consent 
decree involved no admission of wrongdoing on be-
half of AT&T.  See Order, SBC Communications Inc., 
19 FCC Rcd 24014 (Enf. Bur. 2004).  The Consent 
Decree, which is publicly available, states that AT&T 
had voluntarily informed the Enforcement Bureau 
that AT&T’s subsidiary had invoiced the universal 
service fund administrator (i) “in one funding year 
for services provided in another”; (ii) “for services it 
provided to certain schools and other entities for 
which it had not sought and obtained authorization”; 
and (iii) “for services that are not eligible for [univer-
sal service fund] support.”  Consent Decree ¶ 3. 
b. On April 4, 2005, CompTel submitted a one-
sentence FOIA request demanding the contents of 
the Enforcement Bureau’s investigative file.  See C.A. 
App. A27 (Email from Mary C. Albert, CompTel, to 
FOIA FCC (Apr. 4, 2005)).  CompTel did not reveal – 
 
 
5
either in its FOIA request or thereafter – why it 
sought the contents of the Bureau’s file.   
On May 27, 2005, three days after receiving notice 
of CompTel’s request, AT&T submitted a letter            
opposing disclosure.  See id. at A28-A36 (Letter              
from Jim Lamoureux, SBC Services, Inc., to Judy 
Lancaster, Enforcement Bureau, FCC, FOIA Control 
No. 2005-333 (May 27, 2005)).  AT&T explained that 
the internal documents that AT&T had produced to 
the Bureau had been “compiled for law enforcement 
purposes” and were protected from disclosure under 
FOIA Exemption 7(C) and 47 C.F.R. § 0.457(g)(3).  
(AT&T also explained that the documents included 
competitively sensitive information that was protected 
from disclosure under FOIA’s exemption for confi-
dential commercial information (Exemption 4), see            
5 U.S.C. § 552(b)(4).)  CompTel responded approx-
imately one month later with a letter filing in which 
it disputed AT&T’s claims.  See C.A. App. A37-A40 
(Letter from Mary C. Albert, CompTel, to Judy Lan-
caster, Enforcement Bureau, FCC, FOIA Control No. 
2005-333 (June 28, 2005)). 
On August 5, 2005, the Enforcement Bureau issued 
a letter ruling in which it rejected AT&T’s reliance 
on Exemption 7(C).  See Pet. App. 34a-44a.  It                
reasoned that “businesses do not possess ‘personal 
privacy’ interests as required for application” of that 
exemption.  Id. at 42a-43a.  The Bureau stated that, 
unless AT&T filed an application for review by the 
full Commission, it would produce the records Comp-
Tel requested, except to the extent they revealed            
internal FCC communications, names and identifying 
information of particular AT&T employees, or what 
the Bureau considered to be confidential commercial 
information.  See id. at 40a-44a. 
 
 
6
c. On August 19, 2005, AT&T filed an applica-
tion for review with the full Commission challenging 
the Enforcement Bureau’s conclusion that Exemption 
7(C) is categorically inapplicable to corporations.  See 
C.A. App. A47-A54 (Letter from Jim Lamoureux, 
SBC Services, Inc., to Samuel Feder, Acting General 
Counsel, FCC, FOIA Control No. 2005-333 (Aug. 19, 
2005)).  AT&T argued that the “broad” protection            
afforded by Exemption 7(C) was designed to “protect 
parties who had been the subject of law enforcement 
proceedings from embarrassment, reprisal or harass-
ment.”  Id. at A48 (internal quotation marks and            
alterations omitted).  AT&T explained that there was 
no reason to exclude corporations as a rule from that 
“broad” protection, thereby potentially subjecting 
them to “the embarrassment, reprisal or harassment” 
associated with law-enforcement investigations.  Id. 
at A52.
3
 
                                                 
3
 CompTel filed its own application for review challenging the 
Enforcement Bureau’s decision to withhold or redact certain 
categories of records.  See C.A. App. A55-A60 (Letter from Mary 
C. Albert, CompTel, to Samuel Feder, Acting General Counsel, 
FCC, FOIA Control No. 2005-333 (Sept. 6, 2005)).  In October 
2006, when the FCC had not ruled on either party’s application 
for review, CompTel initiated a civil action in the United States 
District Court for the District of Columbia seeking disclosure.  
See Compl., CompTel v. FCC, No. 1:06-cv-01718-HHK (D.D.C. 
filed Oct. 5, 2006); see also 5 U.S.C. § 552(a)(6)(A)(i), (C)(i) (pro-
viding that a FOIA requester will have exhausted administra-
tive remedies if the agency does not decide an administrative 
appeal within 20 days).  AT&T intervened and resisted disclo-
sure, in part on the basis of its claim that the AT&T documents 
at issue were protected by Exemption 7(C).  On March 5, 2008, 
the district court stayed further action pending the FCC’s reso-
lution of “AT&T’s intra-agency appeal” on the applicability of 
Exemption 7(C).  Memorandum Opinion and Order at 6, Comp-
Tel v. FCC, No. 1:06-cv-01718-HHK (D.D.C. Mar. 5, 2008).  That 
stay remains in place. 
 
 
7
On September 12, 2008, the FCC denied AT&T’s 
application for review and ordered disclosure of 
AT&T’s records as specified in the Enforcement            
Bureau’s decision.  See Pet. App. 19a-33a.  The           
Commission explained that it “disagree[d] with 
[AT&T’s] contention that [it] should withhold all of 
the documents that [AT&T] submitted in response to 
[the Enforcement Bureau’s] letter of inquiry under 
Exemption 7(C).”  Id. at 26a.  That was so, the FCC 
said, because, as a per se matter, a corporation has 
no “‘personal privacy’ interests within the meaning of 
Exemption 7(C).”  Id.
4
 
3. The Third Circuit granted AT&T’s petition for 
review and remanded the case to the FCC for further 
proceedings.  See Pet. App. 1a-18a.
5
  The court began 
its analysis by noting that the FCC’s interpretation 
of Exemption 7(C) is not entitled to deference, because 
“FOIA applies government-wide, and no one agency 
is charged with enforcing it.”  Id. at 9a-10a.  Inter-
preting the statute de novo, the court rejected the 
FCC’s categorical assertion that the phrase “personal 
                                                 
4
 On AT&T’s motion, which the FCC did not oppose, the court 
of appeals granted a stay of the FCC’s order pending appeal.  
See Pet. App. 5a n.1. 
5
 The court of appeals first addressed, and rejected, Comp-
Tel’s contention that the court lacked jurisdiction to review the 
FCC’s order.  The court noted that the courts of appeals gener-
ally have jurisdiction to review “final orders” of the FCC, 28 
U.S.C. § 2342(1), that are issued “under” the Communications 
Act of 1934, 47 U.S.C. § 402(a).  See Pet. App. 6a.  Because the 
FCC order under review “adjudicated AT&T’s claim that disclo-
sure of the information collected by the FCC concerning the               
E-Rate program in New London would violate FCC regulations 
implementing Exemption 7(C),” the FCC’s order “constituted an 
order ‘under’ the Communications Act within the meaning of” 
those jurisdictional statutes.  Id. at 7a-8a. 
 
 
8
privacy” in Exemption 7(C) excludes corporations.  
The court explained that FOIA’s plain text compels 
the conclusion that corporations can have “personal 
privacy” under Exemption 7(C), because “‘personal’ is 
the adjectival form of ‘person,’ and FOIA defines ‘per-
son’ to include a corporation.”  Id. at 11a; see 5 U.S.C. 
§ 551(2).  It further noted that another FOIA exemp-
tion – Exemption 7(F) – protects information that 
“could reasonably be expected to endanger the life            
or physical safety of any individual,” 5 U.S.C. 
§ 552(b)(7)(F) (emphasis added), demonstrating that 
“Congress knew how to refer solely to human beings 
(to the exclusion of corporations and other legal enti-
ties) when it wanted to.”  Pet. App. 12a. 
The court of appeals also addressed the FCC’s and 
CompTel’s argument that, because FOIA Exemption 
6 (which protects “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)) applies only to individuals, and 
the phrase “personal privacy” must have the same 
meaning in Exemptions 6 and 7, the phrase “personal 
privacy” in Exemption 7 must exclude corporations.  
Without accepting the premise that only individuals 
can invoke Exemption 6 (an issue on which it                
“express[ed] no opinion,” Pet. App. 13a), the court         
explained that Exemption 6 contains other language 
not found in Exemption 7(C) – namely, the phrase 
“personnel and medical files” – that could be read as 
limiting the application of Exemption 6 to natural 
persons.  Id.  Thus, the court reasoned, to the extent 
Exemption 6 does not protect corporations, it is not 
because the provision contains the phrase “personal 
privacy” but because other words in the statute argu-
ably limit its application to human beings. 
 
 
9
Having concluded that Exemption 7(C)’s language 
is “unambiguous[],” the court of appeals explained 
that it need not resolve the parties’ disputes regard-
ing statutory purpose, legislative history, and the 
applicability of cases from other circuits.  Id. at 13a-
14a.  Even so, it observed that “interpreting ‘personal 
privacy’ according to its plain textual meaning serves 
Exemption 7(C)’s purpose of providing broad protec-
tion to entities involved in law enforcement investi-
gations in order to encourage cooperation with feder-
al regulators.”  Id. at 14a n.5.  The court also explained 
that the D.C. Circuit cases on which the FCC and 
CompTel relied did not “impugn [its] textual analy-
sis,” because none addressed the question whether a 
corporation has “personal privacy” interests within 
the meaning of Exemption 7(C).  Id. at 14a n.6. 
Finally, the court of appeals rejected AT&T’s               
assertion that remanding the matter to the FCC              
was unnecessary because the invasion of personal 
privacy that would result from disclosure of AT&T’s 
documents would be “unwarranted” under Exemp-
tion 7(C) as a matter of law.  See id. at 15a-17a.             
The court noted AT&T’s contention 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 
unwarranted’ invasion of personal privacy within the 
meaning of Exemption 7(C).”  Id. at 16a (quoting              
Reporters Comm., 489 U.S. at 780) (alteration in                
original).  It reasoned, however, that CompTel had 
“indeed alleged that it seeks” information on “the 
FCC’s administration of E-Rate” and that the re-
quested documents “may shed light” on that subject.  
Id. at 16a-17a.  Consequently, the court remanded 
 
 
10 
the matter to the FCC with instructions “to deter-
mine, in accordance with [the court’s] construction              
of Exemption 7(C), whether disclosure ‘could rea-
sonably be expected to constitute an unwarranted 
invasion of personal privacy.’”  Id. at 17a (quoting 5 
U.S.C. § 552(b)(7)(C)).
6
 
The government filed a petition for rehearing, 
which the court of appeals denied on November 23, 
2009. 
                                                 
6
 The Enforcement Bureau also had concluded, and the 
Commission had agreed, that AT&T had failed to comply with 
47 C.F.R. § 0.459, the FCC regulation governing requests for 
confidential treatment of materials submitted to the agency, 
when it had submitted the material pursuant to the Enforce-
ment Bureau’s order.  See Pet. App. 24a-25a, 38a-40a.  That            
conclusion was incorrect because, under the regulation’s plain 
terms, no request for confidential treatment is necessary when, 
as here, an exemption from disclosure under 47 C.F.R. § 0.457 
applies.  See 47 C.F.R. § 0.459(a)(1) (“If the materials are specif-
ically listed in § 0.457, [a request for confidential treatment]              
is unnecessary.”).  In any event, the FCC did not rest on that 
ground and instead proceeded to decide the merits of AT&T’s 
objection to disclosure.  See Pet. App. 25a.  And the court of              
appeals rejected the FCC’s contention that AT&T’s alleged            
failure to request confidential treatment provided a basis on 
which to sustain the FCC’s order.  Id. at 8a-9a.  The petition 
neither defends the FCC’s conclusion nor challenges the court of 
appeals’ resolution of this issue. 
 
 
11 
REASONS FOR DENYING THE PETITION 
The petition seeks review of the Third Circuit’s 
judgment to consider whether corporations can have 
privacy interests protected by Exemption 7(C) of 
FOIA.  See Pet. I.  In support of that request, the 
government identifies no division of authority in the 
lower courts over whether Exemption 7(C) can be              
invoked by corporations.  Instead, it asserts that                
the court of appeals’ interpretation of the statute                
is erroneous.  See Pet. 14-27.  And it contends that 
declining to impose a categorical exclusion of all              
corporations from Exemption 7(C) would increase the 
government’s burden in processing FOIA requests.  
See Pet. 27-30. 
Further review of the court of appeals’ interloc-
utory decision is unwarranted at this time for four 
primary reasons.  First, the court’s decision does not 
conflict with any decision of this Court or any other 
court of appeals.  Indeed, the government identifies 
no other court of appeals decision addressing a corpo-
ration’s right under Exemption 7(C) to protect records 
from mandatory disclosure.  Without a division of au-
thority in the lower courts, this Court’s intervention 
would be unjustified. 
Second, the government’s claim that the decision 
below will wreak havoc with the administration of 
FOIA is tenuous at best.  The court of appeals’ ruling 
requires only that agencies consider the privacy            
interests of corporations in the balancing analysis set 
forth in Exemption 7(C).  The government does not 
quantify the number of FOIA requests that the Third 
Circuit’s decision will implicate or provide any other 
support for the claim that applying the Third Cir-
cuit’s interpretation of Exemption 7(C) would create 
a significant burden for agencies. 
 
 
12 
Third, the interlocutory posture of this case makes 
certiorari inappropriate.  The Third Circuit did not 
hold that Exemption 7(C) bars disclosure of the 
records in question.  Instead, it remanded the matter 
to the FCC to apply Exemption 7(C) in the first                 
instance.  If the FCC concludes that disclosure of 
AT&T’s records could not reasonably be expected to 
constitute an unwarranted invasion of AT&T’s priva-
cy interests, then the court of appeals’ holding on the 
meaning of Exemption 7(C) will have been unneces-
sary to the outcome in this case. 
Fourth, the court of appeals’ judgment is correct.  
FOIA’s plain language establishes that corporations 
can claim “personal privacy” interests under Exemp-
tion 7(C).  The statute defines “person” to include 
corporations, see 5 U.S.C. § 551(2), and Congress’s 
choice of the adjectival form of that defined term – 
“personal” – must be understood to refer to that defi-
nition.  See Pet. App. 11a (“It would be very odd                
indeed for an adjectival form of a defined term not                 
to refer back to that defined term.”).  The petition 
should be denied. 
I. THIS COURT’S REVIEW OF THE COURT 
OF APPEALS’ INTERPRETATION OF EX-
EMPTION 7(C) IS UNWARRANTED 
A. There Is No Division of Authority War-
ranting This Court’s Intervention 
The government does not claim explicitly that the 
Third Circuit’s judgment conflicts with the decision 
of any other court of appeals, see Pet. 20-21, and with 
good reason.
7
  The cases on which the government 
                                                 
7
 Indeed, for its part, CompTel straightforwardly invites this 
Court to engage only in error correction.  See CompTel Br. 1 
(“certiorari should be granted to correct [an] error”). 
 
 
13 
relies do not establish a conflict requiring this Court’s 
resolution. 
1. Only one of the cases that the government 
cites (at 20) involved Exemption 7(C), see Washington 
Post Co. v. United States Dep’t of Justice, 863 F.2d 96 
(D.C. Cir. 1988).  But the opinion in Washington Post 
does not indicate that either of the parties resisting 
the FOIA request in that case argued that disclosure 
would invade the privacy interests of the corporation 
(Eli Lilly) that had submitted the document in ques-
tion.  See id. at 100-01.  Instead, the Department of 
Justice (“DOJ”) and Eli Lilly appear to have con-
tended only that disclosure would invade the privacy 
of particular Eli Lilly employees.  See id. 
The document at issue in Washington Post was the 
report of an investigation by a special outside com-
mittee of Eli Lilly’s board of directors and an outside 
law firm into the company’s development and mar-
keting of an arthritis drug that had been withdrawn 
from the market after reports of serious adverse 
reactions.  See id. at 99.  The Eli Lilly board had 
charged the committee with determining, among 
other things, whether “the company had any claims 
against employees.”  Id.  The DOJ subsequently 
commenced its own investigation, and it requested 
and obtained from Eli Lilly a copy of the special 
committee’s report.  See id.  Eli Lilly publicized the 
existence of both the special committee’s report and 
the DOJ’s investigation.  See id.  In covering the              
story, the Washington Post requested under FOIA             
a copy of the special committee’s report.  See id.  In 
rejecting the DOJ’s reliance on Exemption 7(C) to 
withhold the report, the D.C. Circuit concluded that 
disclosure of the report would not invade any cogniz-
able privacy interest of any Eli Lilly employee, be-
 
 
14 
cause the report was an “assessment of the business 
decisions of Lilly employees during the development 
and marketing of a commercial product.”  Id. at 100.  
It further observed that “the protection accorded          
reputation” by Exemption 7(C) generally would 
shield from disclosure documents accusing employees 
“of having committed a crime” or showing them to be 
“the target of a law enforcement investigation.”  Id. 
at 100-01. Thus, the upshot of the court’s analysis 
was that, as to individuals, Exemption 7(C) protects 
documents relating to alleged criminality, not docu-
ments pertaining to ordinary “business judgments.”  
Id. at 100.  The court did not address – because it 
was not presented – the question whether Eli Lilly’s 
own privacy interests might have justified withhold-
ing of the report. 
2. Aside from Washington Post, the government 
principally relies (at 20) on D.C. Circuit cases con-
struing a different FOIA exemption – Exemption 6, 
which protects “personnel and medical files and simi-
lar files the disclosure of which would constitute a 
clearly unwarranted invasion of personal privacy.”  5 
U.S.C. § 552(b)(6).  The government asserts that the 
D.C. Circuit has interpreted the phrase “personal 
privacy” in Exemption 6 to refer only to the privacy 
interests of individuals.  Because the phrase “per-
sonal privacy” must mean the same thing in both Ex-
emptions 6 and 7(C), the theory goes, a D.C. Circuit 
panel would be bound to reject the Third Circuit’s            
interpretation of Exemption 7(C). 
As an initial matter, the law in the D.C. Circuit              
regarding whether Exemption 6 protects corporate 
privacy interests is far from clear.  In Judicial Watch, 
Inc. v. FDA, 449 F.3d 141 (D.C. Cir. 2006), which the 
government does not cite, the D.C. Circuit stated 
 
 
15 
that the “personal privacy” protections in Exemption 
6 applied to “private individuals and companies.”  Id. 
at 152 (emphasis added).  There, the Food and Drug 
Administration (“FDA”), citing FOIA Exemption 6, 
had withheld information relating to “private indi-
viduals and companies who worked on the approval” 
of a controversial drug.  Id.  The petitioner argued 
that such information could not be withheld because 
it was not “‘about an individual.’”  Id.  The D.C. Cir-
cuit rejected that “crabbed reading of the statute,” 
noting that the Supreme Court has instructed that 
the privacy interests protected by FOIA should be 
construed “broadly.”  Id.  The court further explained 
that the privacy interests at stake under FOIA “vary 
depending on . . . context” and that, in that case, dis-
closure of information about “persons and businesses 
associated with [the drug]” risked retaliation against 
those individuals and entities and therefore impli-
cated the privacy interests of Exemption 6.  Id. at 
153 (internal quotation marks omitted).  The court 
thus concluded that the FDA’s withholding of infor-
mation under the “personal privacy” protections of 
Exemption 6 was proper to protect private parties – 
including “companies” and “businesses” – “from the 
injury and embarrassment that can result from the 
unnecessary disclosure” of protected information.  Id. 
at 152-53 (internal quotation marks omitted). 
The assertedly contrary statements in the cases on 
which the government relies (at 20) were unneces-
sary to the holdings in those cases.  In Multi Ag Me-
dia LLC v. Department of Agriculture, 515 F.3d 1224 
(D.C. Cir. 2008), the D.C. Circuit rejected the appli-
cability of Exemption 6 because it held that any in-
vasion of privacy would not be “clearly unwarranted” 
in light of the strong interest in enabling the public 
 
 
16 
to monitor the Department of Agriculture’s imple-
mentation of the benefit program at issue.  See id. at 
1232 (internal quotation marks omitted).  Further, 
although the court opined that “businesses . . . do not 
have protected privacy interests under Exemption 6,” 
it offered that view in discussing an issue that the 
parties had not “contest[ed]” and in concluding that 
information in the business records was “traceable to 
an individual” and therefore within the scope of Ex-
emption 6 in any event.  Id. at 1228.  The court thus 
had no occasion to revisit the conclusion in Judicial 
Watch that corporations can invoke the “personal 
privacy” protections of Exemption 6. 
Similarly, in Sims v. CIA, 642 F.2d 562 (D.C. Cir. 
1980), the Central Intelligence Agency made “no 
claim that the names of the institutions participating 
in” the program at issue could be withheld under Ex-
emption 6.  Id. at 572 n.47.  And, in National Parks 
& Conservation Association v. Kleppe, 547 F.2d 673 
(D.C. Cir. 1976), the court raised the possible appli-
cability of Exemption 6 on its own and said only that 
Exemption 6 had “not been extended to protect the 
privacy interests of businesses or corporations,” id. at 
685 n.44; it did not say that such an extension would 
be unwarranted in an appropriate case.  In sum, 
none of the cases on which the government relies for 
its claim that the Third Circuit has departed from a 
long line of consistent D.C. Circuit precedent holds 
that corporations are categorically excluded from 
claiming the protection of Exemption 6, and the D.C. 
Circuit’s recent decision in Judicial Watch supports 
the opposite conclusion.  Thus, even assuming that 
cases considering the applicability of Exemption 6 to 
corporations are even relevant to the scope of Exemp-
 
 
17 
tion 7(C), it is far from clear that these cases hold 
that Exemption 6 categorically excludes corporations. 
In any event, even if the government were correct 
that a number of cases have held that corporations 
do not have privacy interests cognizable under            
Exemption 6, the Third Circuit’s conclusion that            
corporations are not categorically excluded from             
Exemption 7(C) is not in conflict with them.  Unlike 
Exemption 7(C), which potentially can apply to any 
type of record compiled for law-enforcement purposes, 
Exemption 6 protects only certain types of records – 
namely, “personnel and medical files and similar 
files.”  5 U.S.C. § 552(b)(6).  As the court of appeals in 
this case explained, “only individuals (and not corpo-
rations) may be the subjects of such files.”  Pet. App. 
13a.  Therefore, to the extent only individuals can 
invoke Exemption 6, it is because a corporation does 
not have a privacy interest in an individual’s person-
nel or medical file, not because the phrase “personal 
privacy” excludes corporations.
8
 
At a minimum, the differences in the types of files 
that Exemptions 6 and 7(C) protect preclude reflex-
                                                 
8
 The cases the government cites (at 21 n.8) for the proposi-
tion that Exemptions 6 and 7(C) protect the same privacy inter-
ests are not to the contrary.  None considered the question 
whether either exemption protects any interest in corporate 
privacy.  See Forest Serv. Employees for Envtl. Ethics v. United 
States Forest Serv., 524 F.3d 1021 (9th Cir. 2008) (dispute over 
redaction of names of individual employees from government 
report); Horowitz v. Peace Corps, 428 F.3d 271 (D.C. Cir. 2005) 
(dispute over withholding of name of individual who had accused 
government employee of misconduct); FLRA v. United States 
Dep’t of Veterans Affairs, 958 F.2d 503 (2d Cir. 1992) (Veteran 
Affairs’ challenge to Federal Labor Relations Authority order 
requiring VA to disclose names and addresses of employees in 
the bargaining unit). 
 
 
18 
ive application of precedents interpreting one exemp-
tion to the other without consideration of their differ-
ing language.  Thus, even if the D.C. Circuit had             
developed a firm view that Exemption 6 does not             
protect the privacy interests of corporations (and, in 
light of Judicial Watch, it has not), it would be en-
tirely premature to say that a conflict exists between 
that court and the Third Circuit.  At the very least, 
this Court should wait until the D.C. Circuit has had 
an opportunity squarely to address whether a corpo-
ration can have “personal privacy” within the mean-
ing of Exemption 7(C) before it grants review of this 
issue. 
B. The Government’s Claim of Adverse Con-
sequences Is Speculative and Insubstan-
tial 
The government’s argument that the Third                
Circuit’s ruling “threatens” significant adverse              
consequences boils down to the following complaint:  
agencies actually will have to consider whether dis-
closure of a corporation’s records compiled for law-
enforcement purposes could reasonably be expected 
to constitute an unwarranted invasion of privacy,                
rather than automatically producing such documents 
without even considering the applicability of Exemp-
tion 7(C).  See Pet. 27-29.  This supposed harm is              
illusory.  
First, although the government asserts (at 13) that 
it receives hundreds of thousands of FOIA requests 
each year, it does not identify the (presumably much 
smaller) number of requests that seek documents 
compiled for law-enforcement purposes the disclosure 
of which potentially could result in an unwarranted 
invasion of a corporation’s privacy.  Thus, it is diffi-
cult to judge the actual number of FOIA requests 
 
 
19 
that might have to be processed differently in light of 
the court of appeals’ decision.  The speculative quality 
of the government’s claim reinforces the wisdom of 
permitting the D.C. Circuit and other courts of                
appeals to decide whether to reject or to follow the 
Third Circuit’s interpretation of Exemption 7(C)               
before this Court intervenes.  If in time a mature              
circuit conflict were to develop on the question, this 
Court presumably would have available to it better 
information with which to evaluate what impact, if 
any, the Third Circuit’s decision has had on the gov-
ernment’s administration of FOIA. 
Second, there is no reason to conclude that simply 
considering the privacy interests of corporations un-
der Exemption 7(C) will be an insufferable burden for 
agencies.  Agencies and courts faced with FOIA ques-
tions routinely engage in such balancing, without ex-
periencing anything like the parade of horribles the 
FCC alarmingly predicts.  See, e.g., Computer Prof’ls 
for Soc. Responsibility v. United States Secret Serv., 
72 F.3d 897, 904-05 (D.C. Cir. 1996) (conducting            
balancing analysis under Exemption 7(C)).  Moreover, 
reading Exemption 7(C) consistent with its text does 
not mean that corporate privacy interests would be 
afforded the same treatment as individual privacy 
interests in all cases, as AT&T explicitly recognized 
in its submissions to the Third Circuit, see AT&T 
C.A. Br. 34.
9
 
                                                 
9
 The government also suggests (at 28 n.12) that agencies will 
have to weigh corporate privacy interests in applying their own 
regulations governing requests for information.  To the extent 
the agency’s regulations simply track the language of the FOIA 
exemption, thus protecting from disclosure documents that are 
exempt from mandatory disclosure under FOIA, then there is 
no additional burden.  For example, here, the FCC’s regulations 
prohibit disclosure of AT&T’s documents if they fall within            
 
 
20 
The government also argues (at 29-30) that differ-
ences in the approaches of the Third Circuit and            
the D.C. Circuit will encourage forum shopping and 
create uncertainty for federal agencies.  But, con-
trary to the premise of the government’s argument, 
whether corporations have privacy interests protected 
under Exemption 7(C) remains an open question                
in the D.C. Circuit.  See supra Part I.A.  If the D.C. 
Circuit follows the Third Circuit’s interpretation of 
Exemption 7(C), then the government’s concern will 
be eliminated.  In any event, the government remains 
free to pursue its construction of Exemption 7(C) in 
other cases.  See United States v. Mendoza, 464 U.S. 
154, 160 (1984) (rejecting the application of non-
mutual collateral estoppel against the government 
because it “would deprive this Court of the benefit it 
receives from permitting several courts of appeals to 
explore a difficult question before this Court grants 
certiorari”). 
C. The Interlocutory Posture of This Case 
Makes This Court’s Review Particularly 
Inappropriate at This Time 
Review of the Third Circuit’s decision also is un-
warranted at this stage because the decision below is 
interlocutory.  The court of appeals rejected AT&T’s 
contention that the documents should be withheld as 
a matter of law because disclosing them “could rea-
sonably be expected to constitute an unwarranted 
                                                                                                   
Exemption 7(C), without the need for further inquiry.  See 47 
C.F.R. § 0.457(g)(3); Pet. App. 7a n.2; see also 47 C.F.R. § 0.457 
(providing that the FCC will not entertain requests for disclo-
sure under § 0.461 when the documents in question “are not the 
property of the Commission”).  In any event, to the extent that 
an agency regulation imposes an unnecessary burden, the agen-
cy itself could remedy that problem by amending the regulation. 
 
 
21 
invasion of personal privacy.”  5 U.S.C. § 552(b)(7)(C); 
see Pet. App. 16a-17a.  Instead, the court remanded 
the matter to the FCC to apply Exemption 7(C) in 
the first instance.  See Pet. App. 17a-18a. 
Further proceedings on remand could render the 
resolution of the question presented unnecessary in 
this case; to the extent that does not occur, further 
review would be available after the FCC’s final             
action.  If the FCC determines that disclosing the             
requested records would not work an “unwarranted” 
invasion of AT&T’s privacy interests, and that action 
is upheld on review, then the Third Circuit’s conclu-
sion that Exemption 7(C) does not categorically ex-
clude corporations would be irrelevant to the ulti-
mate outcome in this matter.  If, on the other hand, 
the FCC rules on remand that Exemption 7(C), as            
interpreted by the Third Circuit, covers some or all of                  
the records at issue, then the propriety of the Third 
Circuit’s statutory construction could be considered 
by this Court on review of the FCC’s final action.  
The interlocutory nature of this matter makes any 
review by this Court premature.  See Brotherhood of 
Locomotive Firemen v. Bangor & Aroostook R.R. Co., 
389 U.S. 327, 328 (1967) (per curiam); Hamilton-
Brown Shoe Co. v. Wolf Bros. & Co., 240 U.S. 251, 
257-58 (1916); see also Brief for the Federal Energy 
Regulatory Commission in Opp. at 12, 17, Coral 
Power, L.L.C. v. California ex rel. Brown, Nos. 06-888 
& 06-1100 (U.S. filed Apr. 25, 2007) (contending that 
remand to the agency rendered certiorari “inappro-
priate” and “premature”).
10
 
                                                 
10
 Although the FCC itself might be unable to seek review of 
its own decision to withhold documents under Exemption 7(C), 
respondent CompTel, which continues to pursue its FOIA             
request and has submitted a brief in support of the petition, 
 
 
22 
II. THE COURT OF APPEALS CORRECTLY              
INTERPRETED THE STATUTE 
A. The court of appeals correctly concluded that 
the “plain text” of Exemption 7(C) “unambiguously” 
applies to corporations.  Pet. App. 11a, 13a.  “As in 
any case of statutory construction,” this Court’s 
“analysis begins with the language of the statute,” 
and, “where the statutory language provides a clear 
answer, it ends there as well.”  Hughes Aircraft Co. v. 
Jacobson, 525 U.S. 432, 438 (1999) (internal quota-
tion marks omitted).  Exemption 7(C) provides that 
FOIA’s mandatory disclosure obligation “does not 
apply” to “records or information compiled for law en-
forcement purposes, . . . to the extent that the pro-
duction 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).  The word “personal” means “of or            
relating to a particular person.”  Webster’s Third                 
New International Dictionary 1686 (2002); accord 
Webster’s New International Dictionary 1828 (2d ed. 
1950) (defining “personal” to mean “[o]f or pertaining 
to a particular person”).  In this context, Congress 
has defined “person” to include “an individual, part-
nership, corporation, association, or public or private 
organization other than an agency.”  5 U.S.C. 
§ 551(2).  By expressly defining the noun “person” to 
include corporations, Congress necessarily defined 
the adjectival form of that noun – i.e., “personal” – 
                                                                                                   
would be able – and would have every incentive – to do so.  In 
addition, as noted above, nothing precludes the FCC or other 
government agencies from continuing to apply the government’s 
interpretation of Exemption 7(C) in other cases, see Mendoza, 
464 U.S. at 160, and the government of course would be able to 
seek further review of any future court of appeals decision 
adopting or following the reasoning of the Third Circuit. 
 
 
23 
also to include corporations.  As the court of appeals 
explained, because “‘personal’ is the adjectival form 
of ‘person,’ and FOIA defines ‘person’ to include a 
corporation,” Pet. App. 11a, the phrase “personal pri-
vacy” in Exemption 7(C) includes not only individual 
privacy but also corporate privacy.  See id. (“It would 
be very odd indeed for an adjectival form of a defined 
term not to refer back to that defined term.”). 
That reading is confirmed by the fact that, where 
Congress intends to refer to natural persons and              
to exclude corporations – both in FOIA itself and in 
the closely related Privacy Act of 1974 – it uses the 
term “individual.”  In FOIA, Congress differentiated 
between the term “personal” (as, for example, in              
Exemption 7(C)) and the term “individual,” which is 
used, for example, in Exemption 7(F), see 5 U.S.C. 
§ 552(b)(7)(F).  That choice must be presumed to be 
intentional and further confirms that Congress knew 
how to exclude non-natural persons when it intended 
to do so.  See Keene Corp. v. United States, 508 U.S. 
200, 208 (1993) (“[W]here Congress includes particu-
lar language in one section of a statute but omits it 
in another . . . , it is generally presumed that Con-
gress acts intentionally and purposely in the dispa-
rate inclusion or exclusion.”) (internal quotation 
marks omitted, alterations in original); Pet. App. 12a 
(Exemption 7(F)’s language shows that “Congress 
knew how to refer solely to human beings (to the              
exclusion of corporations and other legal entities) 
when it wanted to”). 
In the Privacy Act, Congress chose to protect only 
“individual[s],” 5 U.S.C. § 552a(a)(2), thereby exclud-
ing “corporations or sole proprietorships,” St. Michael’s 
Convalescent Hosp. v. California, 643 F.2d 1369, 
 
 
24 
1373 (9th Cir. 1981).
11
  That Congress expressly in-
corporated some FOIA definitions into the Privacy 
Act, see 5 U.S.C. § 552a(a)(1) (defining “agency” as 
that term is defined in FOIA, id. § 552(e)), reinforces 
the significance of Congress’s decision to define              
“individual” separately under § 552a(a)(2).  Indeed, 
Congress used both “person” and “individual” in the 
Privacy Act, further demonstrating that Congress 
understood the distinction between the two.  See, e.g., 
id. § 552a(b) (“[n]o agency shall disclose any record 
. . . to any person, or to another agency, except               
pursuant to a written request by, or with the prior 
written consent of, the individual to whom the record 
pertains”) (emphases added).  Yet, unlike the Privacy 
Act, FOIA Exemption 7(C) does not use the term                
“individual” (e.g., “individual privacy”) or include any 
other textual indication of an intent to exclude corpo-
rations.  The absence of such a limitation is compel-
ling evidence that the scope of Exemption 7(C) is not 
so limited. 
An interpretation of Exemption 7(C) that allows for 
the possibility of corporate privacy rights accords not 
only with the text of the exemption, but also with its 
purposes.  Exemption 7(C) “affords broad[] privacy 
rights to suspects, witnesses, and investigators” in 
law-enforcement investigations.  Bast v. United States 
Dep’t of Justice, 665 F.2d 1251, 1254 (D.C. Cir. 1981).  
The exemption reflects Congress’s judgment that 
“[s]uspects, interviewees and witnesses have a priva-
cy interest because disclosure [of requested informa-
tion] may result in embarrassment or harassment.”  
Davin, 60 F.3d at 1058.  Put differently, Exemption 
7(C) protects the personal privacy of those parties 
                                                 
11
 See Reporters Comm., 489 U.S. at 766-67 (drawing compar-
ison to the Privacy Act in interpreting FOIA). 
 
 
25 
participating in law-enforcement investigations – 
whether as suspects, witnesses, or cooperating par-
ties – because the disclosure of information pertain-
ing to those investigations may be used to embarrass, 
harass, or stigmatize those parties. 
That purpose plainly applies to corporations.                
Corporations, like individuals, are routinely suspects 
or cooperating parties (or both) in law-enforcement 
investigations.  And corporations, like individuals, 
face the prospect of public embarrassment, harass-
ment, and stigma based upon their involvement                 
in such investigations.
12
  The FCC’s construction of 
Exemption 7(C) thus categorically excludes an im-
portant set of actors that can be swept into law-
enforcement investigations, and then later made to 
suffer serious consequences.  That outcome cannot be 
squared with the Exemption’s purpose. 
                                                 
12
 See Cindy R. Alexander, On the Nature of the Reputational 
Penalty for Corporate Crime:  Evidence, 42 J.L. & Econ. 489, 
492 (1999) (citing study showing that “publicly traded corpora-
tions sustained substantial losses in goodwill when named as 
targets of [Federal Trade Commission] investigations for having 
possibly violated its regulations against false and misleading 
advertising”); Daniel R. Fischel & Alan O. Sykes, Corporate 
Crime, 25 J. Legal Stud. 319, 332 (1996) (“[c]orporations con-
victed of crimes may well suffer significant reputational losses”); 
Richard A. Bierschbach & Alex Stein, Overenforcement, 93 Geo. 
L.J. 1743, 1771-72 (2005) (“Investigations and convictions of 
corporations, like those of individuals, often trigger significant 
extralegal sanctions for the defendants and their employees.  
These sanctions include loss of morale, damage to reputation 
and corporate image, damage to relationships with customers, 
suppliers, and the government, bars to future business, and (as 
a consequence of all of this) significant drops in share price              
and market share.  The size of these extralegal penalties often 
dwarfs that of the formal legal penalties.”) (footnotes omitted). 
 
 
26 
Beyond that, a cramped view of the scope of               
Exemption 7(C) could chill voluntary cooperation                 
by corporations and other non-natural persons in 
law-enforcement investigations.  As the facts of this 
case bear out, corporations routinely cooperate in 
law-enforcement investigations, often initiating such 
investigations themselves upon discovery of potential 
wrongdoing.  A rule foreclosing the possibility of                
invoking Exemption 7(C) could make corporations 
less willing to do so, out of concern that potentially 
damaging confidential information could, as the FCC 
held here, be made public based on nothing more 
than a one-sentence FOIA request from a group of 
competitors.  See Pet. App. 14a n.5 (“Reading ‘per-
sonal privacy’ to exclude corporations would disserve 
Exemption 7(C)’s purpose of encouraging corpora-
tions – like human beings – to cooperate and be 
forthcoming in such investigations.”). 
B. The government’s criticisms of the Third Cir-
cuit’s reasoning are unpersuasive. 
1. The FCC offers two textual bases for limiting 
Exemption 7(C) to individuals, neither of which 
withstands scrutiny.  First, it contends that the word 
“personal” is “most naturally understood” to refer              
only to individuals.  Pet. 14.  But the primary                
dictionary definitions the government cites define            
“personal” as “of or relating to a particular person.”  
See Pet. 14-15; supra p. 22.  When, as in this context, 
the statute defines “person” to include both an              
“individual” and a “corporation,” 5 U.S.C. § 551(2),             
it would be unnatural to conclude that the adjectival 
form of “person” excludes corporations.  Moreover, 
the word “personal,” no less than “person,” can quite 
comfortably be used to refer to corporations.  For               
example, corporations have long been understood to 
 
 
27 
be “persons” for the purposes of the Fifth and Four-
teenth Amendments to the United States Constitu-
tion, see, e.g., Grosjean v. American Press Co., 297 
U.S. 233, 244 (1936) (“a corporation is a ‘person’ 
within the meaning of the equal protection and due 
process of law clauses”), and therefore protected by 
the doctrine of “personal” jurisdiction that inheres             
in the concept of due process, see, e.g., Asahi Metal 
Indus. Co. v. Superior Court, 480 U.S. 102, 109-10 
(1987) (plurality); 28 U.S.C. § 1391(c) (“a defendant 
that is a corporation shall be deemed to reside in             
any judicial district in which it is subject to personal 
jurisdiction”).
13
 
Second, the government asserts that the use of the 
word “privacy” in combination with “personal” leaves 
no room for Exemption 7(C) to apply to corporations.  
In support, it observes that corporations cannot sue 
for the tort of invasion of privacy.  See Pet. 15.  But 
this Court has made clear that “the statutory privacy 
right protected by Exemption 7(C) goes beyond the 
common law and the Constitution.”  National Archives 
& Records Admin. v. Favish, 541 U.S. 157, 170 (2004).  
And it specifically has distinguished “[t]he question 
of the statutory meaning of privacy under the FOIA” 
from “the question whether a tort action might lie for 
                                                 
13
 The government also argues that the Third Circuit relied 
too heavily on the linguistic relationship between “person” and 
“personal” because the word “personnel” also “shares the same 
‘root’” and “cannot encompass a corporation.”  Pet. 23 n.10.  
But, unlike “personal,” “personnel” is not simply the adjectival 
form of “person.”  Instead, “personnel” is a word with a special-
ized meaning; it refers to employees in some service, see Web-
ster’s Third New International Dictionary at 1687; Webster’s 
New International Dictionary at 1828, and thus relates only to 
natural persons. 
 
 
28 
invasion of privacy.”  Reporters Comm., 489 U.S. at 
762 n.13. 
Further, in many areas of law, corporations are en-
titled to invoke the same protections as individuals, 
including protections rooted in fundamental privacy 
concerns.  For example, this Court has held that cor-
porations have privacy interests under the Fourth 
Amendment.  See Dow Chem. Co. v. United States, 
476 U.S. 227, 236 (1986) (“Dow [Chemical Co.] plain-
ly has a reasonable, legitimate, and objective expec-
tation of privacy within the interior of its covered 
buildings, and it is equally clear that expectation is 
one society is prepared to observe.”); G.M. Leasing 
Corp. v. United States, 429 U.S. 338, 353-54 (1977).
14
 
Indeed, of particular significance here, this Court 
has expressly recognized that corporations can invoke 
constitutional protections – akin to the protections            
of Exemption 7(C) – that are rooted in the desire             
to prevent embarrassment and anxiety.  The Fifth 
Amendment’s guarantee against double jeopardy, the 
Court has explained, is intended to ensure that a               
defendant is not “subject[ed] . . . to embarrassment, 
expense and ordeal” and to protect against the               
“continuing state of anxiety and insecurity” resulting 
                                                 
14
 United States v. Morton Salt Co., 338 U.S. 632 (1950), 
which the government cites (at 15-16), is not to the contrary.  
There, the Court held that corporations cannot “plead an            
unqualified right to conduct their affairs in secret” under the 
Fourth Amendment in the face of an agency’s “legitimate right 
to satisfy [itself] that corporate behavior is consistent with the 
law.”  338 U.S. at 652.  At most, Morton Salt holds that “corpo-
rations enjoy narrower rights to privacy” because of “the state’s 
interest in investigating corporate wrongdoing.”  Consolidated 
Edison Co. v. Pataki, 292 F.3d 338, 348 (2d Cir. 2002).  Morton 
Salt does not suggest (as the FCC contends) that corporations 
have no privacy interests at all. 
 
 
29 
from a second trial.  United States v. Martin Linen 
Supply Co., 430 U.S. 564, 569 (1977) (internal quota-
tion marks omitted).  The Court then held that the 
Double Jeopardy Clause applied in a case involving a 
“criminal contempt proceeding” concerning two defen-
dant “linen supply companies.”  Id. at 565 n.1. 
Nor is it uncommon for constitutional protections 
that are designed to safeguard the interests of                
individuals also to apply to corporations.  In addition 
to the Fourth and Fifth Amendments noted above, 
corporations can invoke rights under the First Amend-
ment, see First Nat’l Bank v. Bellotti, 435 U.S. 765, 
784 (1978), the Due Process Clause, see Minneapolis 
& St. Louis Ry. Co. v. Beckwith, 129 U.S. 26, 28 
(1889), the Equal Protection Clause, see id.; County 
of Santa Clara v. Southern Pac. R.R. Co., 118 U.S. 
394, 396 (1886) (statement of Waite, C.J.), and the 
Bill of Attainder Clause, see Consolidated Edison, 
292 F.3d at 347.  Even so, that corporations are not 
categorically excluded from claiming the protections 
of those provisions does not mean that they must be 
treated the same as individuals.  Cf. supra note 14.  
Similarly, the Third Circuit’s decision in this case 
does not require that the privacy interests of corpora-
tions be given the same weight as the privacy inter-
ests of individuals in applying Exemption 7(C) or its 
regulatory counterparts.  See supra p. 19. 
2. The government also argues (at 16-19) that 
the phrase “personal privacy” in Exemption 7(C) 
must refer only to natural persons because the same 
phrase appears in Exemption 6 and Exemption 6 
protects only individuals.  But it is far from settled 
that Exemption 6 excludes corporations.  See supra 
Part I.A.2.  On the contrary, the D.C. Circuit has 
stated that the “personal privacy” protections in            
 
 
30 
Exemption 6 applies to “private individuals and com-
panies.”  Judicial Watch, 449 F.3d at 152 (emphasis 
added). 
As the government acknowledges (at 19 n.7), that 
reading of Exemption 6 comports with the Attorney 
General’s interpretation of Exemption 6 shortly after 
the enactment of that provision.  See U.S. Dep’t of 
Justice, Attorney General’s Memorandum on the Pub-
lic Information Section of the Administrative Proce-
dure Act (June 1967) (“1967 FOIA Memorandum”).  
Applying the same textual analysis as the court of 
appeals in this case, the Attorney General concluded 
that FOIA’s language permitting agencies to redact 
identifying details from published documents, “[t]o 
the extent required to prevent a clearly unwarranted 
invasion of personal privacy,” 5 U.S.C. § 552(a)(2), 
“would seem as applicable to corporations as to indi-
viduals,” 1967 FOIA Memorandum at 19.  Turning            
to Exemption 6, the Attorney General likewise noted 
that “the applicable definition of ‘person,’ which is 
found in section 2(b) of the Administrative Procedure 
Act, would include corporations and other organiza-
tions as well as individuals.”  Id. at 36-37.  The            
Attorney General also observed that “[t]he kinds of 
files referred to in [Exemption 6], however, would 
normally involve the privacy of individuals rather 
than of business organizations,” id. at 37, thus                
recognizing, as did the court of appeals here, that 
generally “only individuals (and not corporations) 
may be the subjects of” personnel and medical files, 
Pet. App. 13a.
15
 
                                                 
15
 As the government notes (at 19), a subsequent Attorney 
General’s memorandum suggested that Exemption 7(C) does 
not protect corporations.  That memorandum contains no signif-
icant reasoning on the issue, however, and instead simply asserts 
 
 
31 
In any event, as the court of appeals recognized, to 
the extent Exemption 6 does not protect corporations, 
it need not be because the phrase “personal privacy” 
excludes them.  Instead, because Exemption 6 pro-
tects only “personnel and medical files and similar 
files,” 5 U.S.C. § 552(b)(6) – the disclosure of which is 
highly likely to invade the privacy of individuals, but 
unlikely to invade the privacy of corporations – it 
might be reasonable to read the text of Exemption 6 
as a whole as intended to be invoked only by natural 
persons.  See Pet. App. 13a; 1967 FOIA Memoran-
dum at 36-37; supra Part I.A.2.  That does not sug-
gest that the phrase “personal privacy” means differ-
ent things in the two provisions, but instead that            
Exemption 6 contains other language that could be 
read to limit its application to individuals. 
CONCLUSION 
The petition for a writ of certiorari should be           
denied.  
                                                                                                   
that Exemption 7(C) “does not seem applicable to corporations.”  
U.S. Dep’t of Justice, Attorney General’s Memorandum on the 
1974 Amendments to the Freedom of Information Act 9 (Feb. 
1975); cf. Abramson, 456 U.S. at 622 n.5 (criticizing a party                
for placing “undue emphasis” on the Attorney General’s 1975 
memorandum). 
 
 
32 
 
 
D. WAYNE WATTS 
AT&T INC. 
208 S. Akard Street 
Suite 3702 
Dallas, Texas 75202 
(214) 757-3300 
 
PAUL K. MANCINI 
GARY L. PHILLIPS 
TERRI HOSKINS 
AT&T SERVICES INC. 
1120 20th Street, N.W. 
Suite 1000   
Washington, D.C. 20036 
(202) 457-3055 
Respectfully submitted, 
 
GEOFFREY M. KLINEBERG 
   Counsel of Record 
BRENDAN J. CRIMMINS 
KELLOGG, HUBER, HANSEN, 
   TODD, EVANS & FIGEL, 
   P.L.L.C. 
1615 M Street, N.W. 
Suite 400 
Washington, D.C. 20036 
(202) 326-7900 
(gklineberg@khhte.com) 
 
 
 
July 13, 2010 
 
Counsel for AT&T Inc.