Ginsburg then points out that FOIA exemptions already exist to protect trade secrets and confidential business information and personal information about individual employees. She wonders what kind of information falls within the corporate privacy exception that isn't protected by these exemptions. Klineberg replies that one example would be "a series of e-mails among corporate officers [engaged] in a frank exchange about the competence and intelligence of a would-be regulator of the corporation."
To AT&T's horror, Justice Scalia jumps in: "Why does that relate to the corporation's privacy interest? Anything that would embarrass the corporation is a privacy interest?" And then Scalia pulls out the long knives: "The word personal," he says, "can indeed apply to corporations sometimes; but there are certain phrases where it certainly does not. For example, you talk about personal characteristics. That doesn't mean the characteristics of General Motors. You talk about personal qualities. It doesn't mean the qualities of General Motors." He asks Klineberg, "Can you give me any examples in common usage where people would refer to the personal privacy of a corporation? It's a very strange phrase to me."
AT&T can no longer feel his hands and feet.
Ginsburg observes that "overwhelmingly, personal is used to describe an individual, not an artificial being," and so Klineberg offers up another scenario in which corporate privacy could be violated by a narrow reading of "personal privacy." Imagine, he says, a FOIA request seeking "internal documents within, say, an environmental nonprofit organization talking about their political strategies."
Justice Stephen Breyer asks whether Klineberg has any examples of this ever happening in the past 35 years. When Klineberg can't think of one, Breyer suggests that "[m]aybe one reason this has really never been a problem is because all … these organizations that have interests in privacy are actually taken care of by the other 17 exemptions here." And Scalia adds for good measure: "Another reason might that nobody ever thought that personal privacy would cover this."
Klineberg explains that "increasingly, FOIA is being used by competitors and legal adversaries to obtain information—not about what the government is doing, but about what evidence the government might have gathered from private parties." Ginsburg wonders whether that alone is a reason to change the definition of the exemptions.
AT&T dies a little inside when Scalia asks: "Did some members of Congress who had passed FOIA say, 'This is outrageous; what about the personal privacy of General Motors?' I'm not aware of any objections along those lines."
The chief justice isn't done, either. He takes up AT&T's claim that since "person" is defined elsewhere in FOIA to include corporations, "personal" should be applied to corporations, too. Mulls Roberts: "I tried to sit down and come up with other examples where the adjective was very different from the root noun. It turns out it is not hard at all. You have craft and crafty. Totally different. Crafty doesn't have much to do with craft. Squirrel, squirrely. Right? I mean, pastor—you have a pastor and pastoral. Same root, totally different."
As Klineberg suggests that AT&T doesn't adhere to the "grammatic imperative" used in the 3rd Circuit ruling, AT&T seems to understand that somewhere along the line, he has lost the confidence of the chief justice. Maybe he isn't a real person, capable of dignity and shame and other strong emotions after all. Maybe if you prick him, he does not bleed. If you tickle him he does not laugh. If you poison him, well. AT&T rises to leave the room. But he suddenly finds that he has no legs to stand on.
Disclosure:I am a trustee of the Reporters Committee for Freedom of the Press, which filed an amicus brief on the government side of this case.