Wednesday, January 19, 2011|
Supreme Court hears arguments on Freedom of Information Act
Brian Jackson at 1:16 PM ET
[JURIST] The US Supreme Court [official website; JURIST news archive] heard oral arguments [day call, PDF; merit briefs] Wednesday in FCC v. AT&T [oral arguments transcript, PDF; JURIST report] on whether exemption 7(C) [DOJ backgrounder] of the Freedom of Information Act (FOIA) [5 USC § 552] applies to corporations. Under exemption 7(C), an agency can withhold information pursuant to an FOIA request if that information can reasonably be believed to be a violation of the individual's privacy. The issue of whether a corporation can be considered an individual for FOIA purposes has brought the court's decision in Citizens United v. FEC [JURIST report] to the fore in the minds of commentators [NLJ report]. The FCC's argument [brief, PDF] in the matter focuses on the expansive reading of FOIA by the US Court of Appeals for the Third Circuit, and that a plain text reading of the statute precludes corporations from qualifying for an exemption for possible invasion of "personal privacy." AT&T argued [brief, PDF] that the plain language of the text does include corporations, that FOIA includes corporations in the definition of person and thus "personal privacy" must refer to corporate privacy as well. Justice Antonin Scalia, in the majority in Citizens United, took issue with AT&T's position, almost from the beginning, saying at one point,
"Personal," yes, 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. You talk about a point of personal privilege. It's not a privilege of a corporation. And I think personal privacy is the same thing. Justice Elena Kagan, who signed the petition for certorari as solicitor general, did not take part in the argument and will not take part in the decision.
In Astra USA, Inc. v. Santa Clara County [oral arguments transcript, PDF; JURIST report], the court heard arguments on whether a federal court can utilize common law to provide a private cause of action under a federal statute that provides no such right. Under the Public Health Service Act [42 USC § 256b], drug manufacturers must enter into contracts with the federal government that restrict the price that those manufacturers can charge to providers through the Medicaid system. The statute is silent on the topic of a private cause of action, but the US Court of Appeals for the Ninth Circuit held that federal common law does in fact provide a cause of action under contract law where a third party beneficiary is injured by the drug manufacturer's breach. Astra argues [brief, PDF] that only Congress can provide a cause of action under a federal statute, and that this circumvention of Congressional intent will disrupt the statutory scheme and the Medicaid system. The county argues [brief, PDF] that as third-party beneficiaries, health care providers are entitled to enforce contracts and that such enforcement is necessary given the lack of oversight by the Federal government. During the course of the argument, counsel for Astra engaged in an exchange with Justice Stephen Breyer, which seemingly advanced the county's argument that private enforcement is needed,
JUSTICE BREYER: So what is Santa Clara County supposed do? They think they're being overcharged. And in your opinion -- the company doesn't, but they do. So what are they supposed to do if they're right? How do they get the money ... I'm interested in procedurally what are they supposed to do? As with FCC v. AT&T, Kagan will take no part in the decision of this matter.
MS. BLATT: Oh, pick up the phone and either call the manufacturer, the prime vendor -
JUSTICE BREYER: The manufacturer says: Okay, you're wrong; I'm not; I'm undercharging you. Now what happens?
MS. BLATT: Ultimately, if they can't get the Secretary to -
JUSTICE BREYER: He's busy.
MS. BLATT: If she's busy and won't return the calls, Congress said: You can't enforce it.
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