FOIA exempts from mandatory disclosure records collected for law enforcement purposes to the extent disclosure “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). FOIA does not define personal, but does define person as “an individual, partnership, corporation, association, or public or private organization other than an agency.” 5 U.S.C. § 551(2). 

This case arose from a FCC investigation into whether AT&T overcharged the U.S. government for an AT&T program. Under the program, AT&T provided equipment and services to elementary and secondary schools and then billed the U.S. government for program costs. In 2004, AT&T discovered that that it may have overcharged the U.S. government for some services, and voluntarily reported the issue to the FCC’s Enforcement Bureau. The FCC investigated the matter and the issue was ultimately settled.

Following the investigation, CompTel, a trade association representing AT&T competitors, submitted a FOIA request to the FCC seeking records relating to the AT&T investigation. AT&T opposed the disclosure, arguing that the records were collected as part of a law enforcement investigation and the disclosure of the records would constitute an unwarranted invasion of AT&T’s privacy. The FCC rejected AT&T’s argument stating “personal privacy” does not apply to corporations. 

AT&T ultimately appealed the decision to the Third Circuit, which ruled in favor of AT&T.  The Third Circuit held that “FOIA’s text unambiguously indicates that a corporation may have a ‘personal privacy’ interest within the meaning of the [law enforcement exemption].” 582 F.3d at 498. The Third Circuit remanded to determine whether the disclosure of these particular documents would constitute an unwarranted invasion of AT&T’s personal privacy.

The Third Circuit’s opinion noted that the U.S. Supreme Court has never squarely rejected a corporation’s ability to claim a personal privacy interest.  The Supreme Court’s decision in Federal Communications Commission v. AT&T Inc. will test this precedent. 

• 100 million homes with affordable access to 100 megabit per second internet access.
• At least one institutional (e.g., hospital or university) connection at one gigabit per second in every community. 

Closer to open local government’s home, the Plan’s “Civic Engagement” chapter may raise the bar for municipalities in providing access to records and officials. Although the Plan is directed to the federal government, citizens are likely to expect the same level of service from all government agencies, including their local city hall.

Some Plan recommendations that could make their way to local government requirements in the next few years include:

• All responses to Freedom of Information Act (FOIA) requests should be made available online (rather than delivered only to the requester), in part to cut down on time and money spent processing multiple similar requests.
• All government meetings, hearings, and town halls, should be broadcast online.
• Government should accelerate the adoption of social media technologies given the success stories to date, e.g. 37 million views of H1N1 flu-related media feeds.

Given the potential impacts of the Plan (and technological innovation generally) local government stakeholders would be well-advised to educate themselves about broadband technology and its impact on citizen interaction with their government leaders.

Huang’s comments hint at a number of broad initiatives in broadband access, open government, and social media use that will be contained in the National Broadband Plan when it is released later this month. Development of the National Broadband Plan is an FCC project authorized in the 2009 American Recovery and Reinvestment Act. Huang’s speech can be found online at the FCC’s Broadband blog.

The National Broadband Act, due out March 17, will likely have some impact on local governments. Although many local jurisdictions are far ahead of the federal government. in providing data access and streaming meetings, as Washington, D.C., opens up, local governments are likely to face increasing pressure from citizens to provide similar services and information. Of course, as we have discussed before, new and improved access and communications, such as blogs and twitter feeds, will also have far-reaching impacts on public records management responsibilities for local governments.

We’ll provide more information and analysis as details of the National Broadband Plan become available during the next two weeks.