[Congressional Record Volume 156, Number 148 (Monday, November 15, 2010)]
[Senate]
[Pages S7885-S7886]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                       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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