[Congressional Record: November 15, 2010 (Senate)]
[Page S7885-S7886]
FREEDOM OF INFORMATION ACT
Mr. LEAHY. Mr. President, in the coming months, the Supreme Court of
the United States will consider Federal Communications Commission v.
AT&T--a monumental Freedom of Information Act, FOIA, case that could
vastly expand the rights of corporations to shield their activities
from public view. Like many Americans who deeply value openness,
transparency and accountability in our government, I urge the Court to
reject efforts to broaden the personal privacy exemption to FOIA to
include corporate information.
A decade after Congress first enacted the Freedom of Information Act,
Congress created an exemption to this law for law enforcement records
that contain sensitive personal information. The so-called ``personal
privacy exemption'' for law enforcement records--FOIA exemption 7(C)--
allows the government to withhold information contained in its
investigatory files that ``could reasonably be expected to constitute
an unwarranted invasion of personal privacy.''
By creating this exemption, Congress intended to shield from public
disclosure sensitive personal information about individuals who may be
mentioned in government files. However, Congress never intended for
this exemption to apply to corporations.
The legislative history for the personal privacy exemption makes
clear that Congress intended for this exemption to protect an
individual's right to privacy. Indeed, when the Senate debated this
exemption in May of 1974, Senator Philip Hart, who drafted the personal
privacy exemption, remarked that ``the protection for personal privacy
included in [the exemption] . . . is part of the sixth exemption [to
FOIA] in the present law. By adding the protective language here, we
simply make clear that the protections in the sixth exemption for
personal privacy also apply to disclosure under the seventh exemption.
I wish to also make it clear, in case there is any doubt, that this
clause is intended to protect the privacy of any person mentioned in
the requested files, and not only the person who is the object of the
investigation.''
Former Senator Roman Hruska also confirmed that Congress intended for
the exemption to address individual privacy rights. Regarding the
personal privacy exemption, he said ``we are dealing in this matter
with what I believe to be the most important rights, and in some
respect the most important rights, an individual may possess, his right
to privacy, and his right to personal safety.'' The universal
understanding that the personal privacy exemption pertains only to the
privacy rights of individuals is further confirmed by the remarks of
former Senator Strom Thurmond, who noted during the Senate debate that
``[a]ll of us are aware of the general feeling permeating the country,
that our citizens want to know what their Government is doing . . .
However, by the same token, we are also concerned about a mutual
problem of invasion of an individual's privacy.''
During the more than four decades since the Congress enacted the
personal privacy exemption to FOIA, our Federal courts and Federal
agencies have consistently interpreted this exemption to apply only to
individuals.
[[Page S7886]]
Over the years, the Congress--with the full knowledge of how the courts
have interpreted this exemption--has never amended this exemption, nor
called into question the universally held view that the exemption
protects the personal privacy rights of individuals.
Given the clear legislative history and the longstanding case
precedent in this area, I am deeply troubled by recent efforts to
vastly--and I believe improperly--expand the scope of this exemption to
reach corporations. While I do not quibble with the notion that certain
corporate information should be exempt from public disclosure, I firmly
believe that Congress has provided meaningful and adequate protections
for sensitive corporate information in other parts of FOIA. Indeed,
Congress specifically enacted FOIA exemption 4 to protect trade secrets
and other sensitive corporate information from public disclosure.
Tellingly, American corporations have successfully relied upon
exemption 4 for decades, to safeguard their sensitive business
information when it is shared with the government.
I fear that vastly expanding the personal privacy exemption for law
enforcement records would close a vital window into how our government
works. I also fear that extending this exemption to corporations would
permit corporations to shield from public view critical information
about public health and safety, environmental dangers, and financial
misconduct, among other things--to the great detriment of the people's
right to know and to our democracy.
As Senator Hart wisely noted during the debate of the 1974 FOIA
amendments, ``survival for a society such as ours hinges very
importantly on the access that a citizen can have to the performance of
those he has hired.'' I sincerely hope that our Nation's highest Court
will carefully consider these words and that the Court will narrowly
construe the personal privacy exemption, consistent with congressional
intent. Should the Court decide to do otherwise, I will work with
others in the Congress to ensure that FOIA, and specifically the
personal privacy exemption for law enforcement records, remains a
meaningful safeguard for the American people's right to know.
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