AT&T Inc v. FCC

Filing 62

ECF FILER: Petition filed by Respondent FCC for Rehearing before original panel and the court en banc. Certificate of Service dated 11/06/2009. (HCW)

AT&T Inc v. FCC

Doc. 62

No. 08-4024 ________________________________________________________________ ________________________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________________ AT&T, INC., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION, Respondent. ____________________ ON PETITION FOR REVIEW OF AN ORDER OF THE FEDERAL COMMUNICATIONS COMMISSION ____________________ RESPONDENT'S PETITION FOR REHEARING AND REHEARING EN BANC ____________________

Of counsel: AUSTIN C. SCHLICK General Counsel DANIEL M. ARMSTRONG Associate General Counsel MICHAEL A. KRASNOW Counsel Federal Communications Commission 445 12th Street, S.W. Washington, D.C. 20554

TONY WEST Assistant Attorney General LEONARD SCHAITMAN [phone] HENRY C. WHITAKER [phone] Attorneys, Appellate Staff Civil Division, Room Department of Justice 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530-0001

________________________________________________________________ ________________________________________________________________

Dockets.Justia.com

TABLE OF CONTENTS REQUIRED STATEMENT FOR REHEARING EN BANC. . . . . . . . . . . . 1 INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . 2 REASONS WHY THE PETITION SHOULD BE GRANTED. . . . . . . . . . . 4 I. Exemption 7(C) Of The Freedom Of Information Act Protects "Personal Privacy," Not Corporate Privacy.. . . . . . . . . . . 4 The Panel's Ruling Merits En Banc Review Because It Casts A Shadow Of Uncertainty On The Government-Wide Processing Of Hundreds Of Thousands Of Annual FOIA Requests. . . . . . . . . . . . . . . .

II.

11 14

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . .

TABLE OF AUTHORITIES Cases Page

Arnold v. Penn. Dep't of Transp., 477 F.3d 105 (3d Cir. 2007).. . . . . . . . . . . . . . . . DOJ v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (1989).. . . . . . . . . . . . . . . . . .

6

8, 10

Dartmouth Coll. v. Woodward, 17 U.S. 518 (1819). . . . . . . . . . . . . . . . . . . . . Dep't of State v. Washington Post Co., 456 U.S. 595 (1982).. . . . . . . . . . . . . . . . .

5

6, 7, 8

First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765 (1978).. . . . . . . . . . . . . . . . . . . 5, 6 Getman v. NLRB, 450 F.2d 670 (D.C. Cir. 1971).. . . . . . . . . . . . . . .

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Judicial Watch, Inc. v. FDA, 449 F.3d 141 (D.C. Cir. 2006).. . . . . . . . . . . . . . . 12 McDonnell v. United States, 4 F.3d 1227 (3d Cir. 1993). . . . . . . . . . . . . . . . . 10 Multi AG Media LLC v. USDA, 515 F.3d 1224 (D.C. Cir. 2008). . . . . . . . . . . . . . . Nat'l Archives and Records Admin. v. Favish, 541 U.S. 157 (2004).. . . . . . . . . . . . . . . . . . . . Nat'l Parks and Conservation Ass'n v. Kleppe, 547 F.2d 673 (D.C. Cir. 1976).. . . . . . . . . . . . . . . Rural Housing Alliance v. USDA, 498 F.2d 73 (D.C. Cir. 1974). . . . . . . . . . . . . . . . Sims v. CIA, 642 F.2d 562 (D.C. Cir. 1980).. . . . . . . . . . . . . . .

8

7

8

6

8

ii

United States v. Morton Salt Co., 338 U.S. 632 (1950).. . . . . . . . . . . . . . . . . . . 5, 6 Washington Post Co. v. DOJ, 863 F.2d 96 (D.C. Cir. 1988). . . . . . . . . . . . . . . 7, 8 Wine Hobby USA, Inc. v. IRS, 502 F.2d 133 (3d Cir. 1974).. . . . . . . . . . . . . . . . Statutes 5 U.S.C. § 551(2).. . . . . . . . . . . . . . . . . . . . . . 5 U.S.C. § 552(b)(4). . . . . . . . . . . . . . . . . . . . 8

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7, 9 6 3

5 U.S.C. § 552(b)(6). . . . . . . . . . . . . . . . . . . . . 5 U.S.C. § 552(b)(7). . . . . . . . . . . . . . . . . . . . .

5 U.S.C. § 552(b)(7)(B).. . . . . . . . . . . . . . . . . . . . 9 5 U.S.C. § 552(b)(7)(C).. . . . . . . . . . . . . . . . . . 4, 9 9

17 U.S.C. § 101.. . . . . . . . . . . . . . . . . . . . . . . Legislative Materials

H.R. Rep. No. 89-1497 (1966). . . . . . . . . . . . . . . . . . 8 120 Cong. Rec. 17,033 (1974). . . . . . . . . . . . . . . . . Other Authorities The American Heritage Dictionary of the English Language (1976). . . . . . . . . . . . . . . . . . Attorney General's Memorandum on the 1974 Amendments to the Freedom of Information Act (Feb. 1975). . . . . . . . . . . . Merriam-Webster's Collegiate Dictionary (10th ed. 1999).. . . 10

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Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890). . . . . . . . . . . . . . . . . . 5 Webster's Third New International Dictionary (1986).. . . . iii 4, 5

REQUIRED STATEMENT FOR REHEARING EN BANC Pursuant to Third Circuit Rule 35.1, I express a belief, based on a reasoned and studied professional judgment, that this appeal involves the following question of exceptional importance: Are corporations and other business entities entitled to "personal privacy" protection under Freedom of Information Act Exemption 7(C), 5 U.S.C. § 552(b)(7)(C)? /s Henry Whitaker Henry Whitaker

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INTRODUCTION The panel has held that a corporation ­ AT&T, Inc. ­ is entitled to "personal privacy" protection under Freedom of Information Act Exemption 7(C). That unprecedented holding is

based on a basic misreading of FOIA, and is in considerable tension with decades of precedent and government practice, which never has accepted ­ and in fact has rejected ­ the curious notion that corporate business or commercial interests qualify for "personal privacy" protection under FOIA's exemptions. The panel's error presents a question of exceptional importance because the ruling threatens to revolutionize the manner in which the federal government processes the hundreds of thousands of FOIA requests it receives government-wide each year, and to impose barriers to releasing information concerning corporate malfeasance. The panel's decision warrants the

attention of the en banc court. STATEMENT 1. This case concerns the efforts of a trade association,

Comptel, to uncover information about alleged misconduct by AT&T. The FCC investigated AT&T for overbilling the government for work it had done under a government program; as a result of that investigation, AT&T agreed to pay the government $500,000. Comptel submitted a FOIA request seeking the contents of the file the FCC compiled from the investigation. 2

AT&T resisted that request on the ground that disclosure of any information in the investigative file would violate its corporate "personal privacy" rights under Exemption 7(C) of FOIA, which exempts from FOIA disclosure "records or information compiled for law enforcement purposes" that "could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7). The FCC agreed to withhold from

disclosure under FOIA Exemption 4 information from the file revealing sensitive AT&T commercial information and trade secrets, and withheld under Exemption 6 and Exemption 7(C) information from the file that infringed the personal privacy of AT&T individual employees and customers. App. 44-45. But the

FCC rejected AT&T's argument that all of the information about the investigation was protected from disclosure under Exemption 7(C), reasoning that corporations do not have "personal privacy" protection under that exemption. 2. App. 10-11.

AT&T petitioned this Court for review of the FCC's

determination that some of the investigative file was subject to FOIA disclosure, and the panel granted the petition. The panel

accepted AT&T's argument that Exemption 7(C) applies to the entire contents of the investigative file because AT&T, as a corporate entity, had a right to "personal privacy" protected under that Exemption. Slip op. 9 (attached as an Addendum). The

panel rested that holding principally on the Administrative 3

Procedure Act's general definition of the word "person," which includes corporations, and inferred from this definition that Congress intended Exemption 7(C) of FOIA to confer "personal privacy" rights on corporations and other business associations. Slip op. 9-10. The panel declined to "consider the parties'

arguments concerning statutory purpose, relevant (but nonbinding) case law, and legislative history," slip op. 12-13, and stated that "to the extent that" nonbinding cases "can be read to conflict with our textual analysis, we decline to follow them," slip op. at 13 n.6. The panel "remand[ed] the matter to the FCC with instructions to determine" whether disclosure of the balance of the information in the investigative file would "`constitute an unwarranted invasion of personal privacy,' § 552(b)(7)(C)." op. at 16. REASONS WHY THE PETITION SHOULD BE GRANTED I. Exemption 7(C) Of The Freedom Of Information Act Protects "Personal Privacy," Not Corporate Privacy. A. 1. Exemption 7(C) of the Freedom of Information Act exempts from mandatory disclosure under FOIA "records or information compiled for law enforcement purposes" that "could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C). That provision does Slip

not protect "corporate privacy."

The term "personal" is most

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naturally understood to concern only individuals.

See Webster's

Third New International Dictionary 1686 (1986) ("personal" means "of or relating to a particular person: affecting one individual or each of many individuals"; "relating to an individual"; and "relating to or characteristic of human beings as distinct from things.").1 The Supreme Court has accordingly explained that

corporations do not have rights that are "purely personal." First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 778 n.14 (1978). And the phrase "personal privacy" even more clearly The law ordinarily

refers only to the rights of natural persons.

protects privacy to safeguard human dignity and preserve individual autonomy. See generally Samuel D. Warren & Louis D. A

Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890). corporation, however, is an "an artificial being, invisible, intangible, and existing only in contemplation of law."

Dartmouth Coll. v. Woodward, 17 U.S. 518, 636 (1819) (Marshall, C.J.). As a legal construct, it cannot be embarrassed or shamed.

For that reason, "corporations can claim no equality with

See also id. ("person" means "an individual human being"); The American Heritage Dictionary of the English Language 978 (1976) ("personal" means "of or pertaining to a particular person; private; one's own personal affairs"; "[c]oncerning a particular individual and his intimate affairs" (emphasis in original)); Merriam-Webster's Collegiate Dictionary 599 (10th ed. 1999) ("personal" means "of, relating to, or affecting a person: PRIVATE, INDIVIDUAL"; "carried on between individuals directly"; "relating to an individual or an individual's character, conduct, motives, or private affairs often in an offensive manner"). 5

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individuals in the enjoyment of a right to privacy," United States v. Morton Salt Co., 338 U.S. 632, 652 (1950), and indeed the "disparity between artificial and natural persons is so significant that differing treatment can rarely be urged as an objection to a particular construction of a statute," id. at 651; see also Arnold v. Penn. Dep't of Transp., 477 F.3d 105, 111 (3d Cir. 2007).2 There is no evidence that Congress departed from this normal understanding of "personal privacy" when it added Exemption 7(C) to FOIA in 1974. Congress borrowed that term from preexisting

Exemption 6, which was enacted in 1966 as part of FOIA, and exempted from FOIA's provisions "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6).

Congress enacted Exemption 7(C) against the backdrop of judicial decisions that interpreted Exemption 6 "to protect individuals from public disclosure of intimate details of their lives." Rural Housing Alliance v. USDA, 498 F.2d 73, 77 (D.C. Cir. 1974) (emphasis added); see also Wine Hobby USA, Inc. v. IRS, 502 F.2d 133, 136 (3d Cir. 1974) (Exemption 6 protects "`the potential invasion of individual privacy'" (quoting Getman v. NLRB, 450

Corporations do have rights other than those that are "purely personal." Bellotti, 435 U.S. at 778 n.14. 6

2

F.2d 670, 677 n.24 (D.C. Cir. 1971)).3

Because the Court may

"assume Congress legislated against this background of law . . . when it amended Exemption 7(C)," Nat'l Archives and Records Admin. v. Favish, 541 U.S. 157, 169 (2004), the Court should presume that Congress intended the identical "personal privacy" language of Exemption 7(C) likewise to protect only individuals. The structure of FOIA confirms that Congress did just that. Corporations have an interest in preserving the secrecy of information in certain circumstances. that interest in Exemption 4. And Congress protected

But that exemption covers only

"trade secrets and commercial or financial information obtained from a person and privileged or confidential." § 552(b)(4). 5 U.S.C.

Interpreting Exemption 7(C) also to protect

corporate secrecy would undermine Congress's decision in Exemption 4 to restrict from disclosure only a carefully delineated category of confidential business information, as opposed to any and all corporate information collected during law enforcement investigations. 2. In the decades since FOIA was enacted, no court has accepted, and several have rejected, the notion that Exemption 7(C) and Exemption 6 protect corporate secrets just as they do In Department of State v. Washington Post Co., 456 U.S. 595 (1982), the Supreme Court rejected the D.C. Circuit's view that Exemption 6 protected only "intimate details" and "highly personal" information. Id. at 600. But it agreed that Exemption 6 targets individual privacy. See id. at 601, 602 n.4. 7
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individual privacy.

In Washington Post Co. v. DOJ, 863 F.2d 96

(D.C. Cir. 1988), for example, the court rejected the argument that Exemption 7(C) protected "[i]nformation relating to business judgments and relationships" of the employees of a drug company. Id. at 100. Similarly, the D.C. Circuit has repeatedly concluded

that "businesses themselves do not have protected privacy interests under Exemption 6." Multi AG Media LLC v. USDA, 515

F.3d 1224, 1228 (D.C. Cir. 2008); see also Sims v. CIA, 642 F.2d 562, 572 n.47 (D.C. Cir. 1980) ("Exemption 6 is applicable only to individuals."); Nat'l Parks and Conservation Ass'n v. Kleppe, 547 F.2d 673, 685 n.44 (D.C. Cir. 1976) ("The sixth exemption has not been extended to protect the privacy interests of businesses or corporations."). The Supreme Court has likewise described

Exemption 6 as "`protect[ing] . . . an individual's right of privacy,'" Washington Post, 456 U.S. at 601 (quoting H.R. Rep. No. 89-1497, at 11 (1966)), and as not extending to "information not personal to any particular individual," id. at 602 n.4; see also DOJ v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 763 (1989). Those cases substantially undermine the panel's

very different interpretation of the same "personal privacy" language in Exemption 7(C). B. The panel did not dispute that the ordinary

understanding of "personal privacy" excludes corporate secrecy. Instead, the panel reasoned that Congress departed from that 8

natural meaning by defining the different word "person" to include "corporations," see 5 U.S.C. § 551(2)), and held that this definition also controls the term "personal privacy" in FOIA Exemption 7(C). Slip op. 11-13. But Congress nowhere provided

that this definition controls all variants of "person," and it makes little sense to presume that it does. For example, Exemption 6 uses the term "personnel . . . files," the root of which is also "person." Yet as the panel

stressed (slip op. 12), that term obviously refers only to files concerning individuals. More generally, where Congress desires a

defined word to control the term's variants, it says so expressly. See, e.g., 17 U.S.C. § 101 (defining "the following And where Congress desired to

terms and their variant forms").

apply a FOIA exemption to corporations and other business entities, it used the defined term "person." See 5 U.S.C.

§ 552(b)(4) (protecting "trade secrets or commercial or financial information obtained from a person"); § 552(b)(7)(B) (protecting law enforcement records that "would deprive a person of a right to a fair trial or an impartial adjudication"). But that

Congress used "person" as a defined term of art in no way means that the undefined term "personal privacy" departs from its ordinary meaning and extends privacy protection to abstract legal entities like corporations. The panel also rejected (slip op. 11-12) the government's 9

argument that Exemption 7(C) protects the same privacy interests as Exemption 6. Even assuming Exemption 6 applies only to

individuals, the panel reasoned, that is so not because Exemption 6 protects only the "personal privacy" of individuals, but instead because "[t]he phrase `personnel and medical files' . . . limits Exemption 6 to individuals because only individuals (and not corporations) may be the subjects of such files." 12. Slip op.

But disclosure of "personnel and medical and similar files"

concerning individuals could easily invade any supposed "personal privacy" rights that corporations have ­ for example, by revealing whether a company discriminated against its employees. The panel's holding that corporations have "personal privacy" rights under Exemption 7(C) thus conflicts not only with the long line of authority holding that Exemption 6 is limited to individuals, see supra pp. 7-8, but also precedent establishing that the privacy interests protected by Exemption 6 and Exemption 7(C) are coextensive, see Reporter's Committee, 489 U.S. at 76869; McDonnell v. United States, 4 F.3d 1227, 1252-53 (3d Cir. 1993); see also 120 Cong. Rec. 17,033 (1974) (Statement of Sen. Hart) ("[T]he protection for personal privacy included in . . . our amendment . . . is a part of the sixth exemption 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 10

exemption."). The panel believed its holding to follow "unambiguously" from "FOIA's text"; did "not consider the parties' arguments concerning statutory purpose . . . and legislative history," slip op. 12-13; and "decline[d] to follow" prior case law "to the extent that these cases can be read to conflict with [its] textual analysis," slip op. 13 n.6. The panel did, however,

state that its holding served Exemption 7(C)'s purpose of protecting against the "public embarrassment, harassment, and stigma," slip op. 12 n.5, a corporation may suffer from law enforcement investigations. The panel did not explain how a

legal construct can suffer "embarrassment" or "stigma" like an individual. FOIA Exemption 7(C) protects the privacy of a

corporation's employees, while Exemption 4 protects the corporation's confidential commercial information, which is why the FCC in this case withheld under those exemptions much of the information Comptel requested from the FCC's AT&T file. 45. App. 44-

But there is no basis for protecting the balance of the file

from FOIA disclosure in the name of some freestanding concept of corporate dignity. II. The Panel's Ruling Merits En Banc Review Because It Casts A Shadow Of Uncertainty On The Government-Wide Processing Of Hundreds Of Thousands Of Annual FOIA Requests. The panel's decision warrants the attention of the en banc court because it casts a shadow of uncertainty over the 11

administration of the hundreds of thousands of FOIA requests received government-wide each year. The panel's opinion undermines a basic tenet of FOIA law under which numerous government agencies have operated for decades. The government has long processed FOIA requests under

the rule that "[t]he phrase `personal privacy' pertains to the privacy interests of individuals. Unlike clause (B) [of

Exemption 7], clause (C) does not seem applicable to corporations or other entities." Attorney General's Memorandum on the 1974

Amendments to the Freedom of Information Act 9 (Feb. 1975). Before the panel's decision, no court had even hinted that this premise was questionable, let alone incorrect, and indeed courts had repeatedly agreed with the government's established practice. See supra pp. 7-8.4 The panel's decision throws longstanding

FOIA procedures into doubt on a government-wide basis, potentially requiring numerous federal agencies to revise their FOIA practices to account for the newly minted privacy interest In its court of appeals briefs, AT&T contended that Judicial Watch, Inc. v. FDA, 449 F.3d 141 (D.C. Cir. 2006), protected "corporate privacy" under FOIA Exemption 6. The panel did not adopt that argument, see slip op. 13 n.6, which misreads Judicial Watch. Although Judicial Watch upheld the FDA's decision to "redact[] the names of agency personnel and private individuals and companies who worked on the approval of mifepristone" ­ an abortion drug ­ it did so not because Exemption 6 protected corporate privacy, but instead because the release of information about the company threatened "abortionrelated violence to those who developed mifepristone, worked on its FDA approval, and continue to manufacture the drug." 449 F.3d at 152-53. 12
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the panel has recognized.

Federal agencies routinely collect

information from companies as a result of law enforcement or regulatory investigations. The panel's holding thus may spawn an

avalanche of objections to FOIA disclosure from companies that no doubt overwhelmingly prefer investigation of possible malfeasance to remain secret, and litigation with FOIA requesters over whether potential disclosures infringe the "personal privacy" of business organizations. Moreover, federal statutes (such as the Privacy Act) and regulations can limit agencies' authority to disclose information that is within a FOIA exemption. In this case, for example, the

panel suggested that FCC regulations restrict the agency's discretion to disclose information that is within FOIA Exemption 7(C). Slip op. 7 n.2. The panel's decision thus may restrict

the disclosure of information concerning possible corporate wrongdoing that agencies believe the public should know. And

even where an agency's disclosure is permitted, the panel's decision may require agencies to expend time and resources in redacting purportedly secret corporate information from material that otherwise must be disclosed under FOIA.

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CONCLUSION For the foregoing reasons, the petition should be granted. Respectfully submitted, TONY WEST Assistant Attorney General LEONARD SCHAITMAN [phone] HENRY WHITAKER [phone] Attorneys, Appellate Staff Civil Division, Room Department of Justice 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530-0001 NOVEMBER 2009

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CERTIFICATE OF SERVICE I certify that on November 6, 2009, I served the foregoing Petition for Rehearing And Rehearing En Banc of Respondent Federal Communications Commission upon the following counsel by means of the Court's CM/ECF system: Colin S. Stretch Kelly P. Dunbar Kellogg, Huber, Hansen, Todd, Evans & Figel 1615 M St., N.W. Suite 400 Washington, D.C. 20036 Mary C. Albert Comptel 900 17th Street, N.W. Suite 400 Washington, DC 20006 The Petition was also lodged with the Clerk's Office by the same means, on the same date. /s Henry Whitaker Henry Whitaker

ADDENDUM

PRECEDENTIAL

U N IT E D STATES COURT OF APPEALS F O R THE THIRD CIRCUIT _____________ N o . 08-4024 _____________ A T & T INC, Petitioner v. F E D E R A L COMMUNICATIONS COMMISSION; UNITED STATES OF AMERICA, Respondent CO M PTEL, Intervenor per Clerk Order of 10/10/08

O n Petition for Review of an Order of the F e d e ra l Communications Commission O rd e r 08-207 A rg u e d March 13, 2009 B e f o re : FUENTES, CHAGARES, and TASHIMA * , Circuit Judg es. (F ile d : September 22, 2009)

Honorable A. Wallace Tashima, Senior Judge for the U n ite d States Court of Appeals for the Ninth Circuit, sitting by d e s ig n a tio n .

*

C o lin S. Stretch (argued) K e lly P. Dunbar K e llo g g , Huber, Hansen, Todd, Evans & Figel 1 6 1 5 M St., N.W., Ste. 400 W a sh in g to n , DC 20036 C o u n s e l for Petitioner M ic h a el A. Krasnow (argued) F e d e ra l Communications Commission 4 4 5 12th St., N.W. W a sh in g to n , DC 20554 C a th e rin e G. O'Sullivan R o b ert J. Wiggers U n ite d States Department of Justice A n titru s t Division, Appellate Section R m . 3224 9 5 0 Pennsylvania Ave., N.W. W a sh in g to n , DC 20530 C o u n s e l for Respondent M ary C. Albert C om pTel 9 0 0 17th St., N.W., Ste. 400 W a sh in g to n , DC 20006 C o u n s e l for Intervenor _____________ O P IN I O N OF THE COURT _____________

C H A G A R E S , Circuit Judge. T h e Freedom of Information Act ("FOIA"), 5 U.S.C. §§ 5 5 1 -5 9 , requires a federal agency to disclose certain documents w ith in its possession. But FOIA exempts from mandatory d is c lo s u re "records or information compiled for law enforcement p u r p o s e s . . . to the extent that the production of such law 2

e n f o rc e m e n t records or information . . . could reasonably be e x p e cte d to constitute an unwarranted invasion of personal p riv a c y," § 552 (b)(7)(C) ("Exemption 7(C)"), and defines " p e rs o n " to "include an individual, partnership, corporation, a s s o c ia tion , or public or private organization other than an agency," § 551(2). Human beings have such "personal privacy." This case re q u ire s us to determine whether corporations do, as well. A T & T , Inc. ("AT&T") argued that the Federal C o m m u n ic a tio n s Commission ("FCC") could not lawfully release d o c u m e n ts obtained during the course of an investigation into an a lleg e d overcharging on the ground that disclosure would likely in v a d e the company's "personal privacy." The FCC rejected A T & T 's argument and held that a corporation, as a matter of law, h a s no "personal privacy" in the first place. AT&T filed a petition f o r review. We will grant the petition and remand to the FCC for f u r th e r proceedings. I. A T & T participated in a federal program administered by the F C C , called "E-Rate," that was designed to increase schools' a c ce ss to advanced telecommunications technology. As part of the p ro g ram , AT&T provided equipment and services to elementary a n d secondary schools, and then billed the Government for the cost o f the equipment and services. In August 2004, AT&T discovered th at it might have overcharged the Government for certain work d o n e for the New London, Connecticut school district. AT&T v o lu n tarily reported the matter to the FCC, and the FCC's E n f o rc e m e n t Bureau ("Bureau") conducted an investigation. The tw o sides ultimately resolved the matter via a consent decree. During the course of the investigation, the Bureau ordered A T & T to produce, and the company did indeed produce, a range of d o c u m e n t s related to its work with the New London schools. T h o s e documents included invoices, internal e-mails providing p ric in g and billing information for the work done in New London, re sp o n s e s to Bureau interrogatories, names of employees involved in the allegedly improper billing, and AT&T's own assessment of w h e t h e r and to what extent the employees involved in the 3

o v e rc h a rg in g violated its internal code of conduct. O n April 4, 2005, CompTel, a trade association representing so m e of AT&T's competitors, submitted a FOIA request for "[a]ll p le a d in g s and correspondence contained in" the Bureau's AT&T E -R a te investigation file. Appendix ("App.") 27. AT&T su b m itte d a letter to the Bureau opposing CompTel's request, a rg u in g that the FCC collected the documents that AT&T produced f o r law enforcement purposes and therefore that the FCC r e g u la ti o n s implementing FOIA's exemptions prohibited d is c lo s u re . CompTel submitted a reply letter. On August 5, 2005, the Bureau issued a letter-ruling rejectin g AT&T's argument that Exemption 7(C) and the FCC's re g u la tio n s implementing that exemption prohibit disclosure. That ex e m p t io n , the Bureau held, does not apply to corporations because c o rp o ra tio n s lack "personal privacy." AT&T filed an application re q u e stin g the FCC to review the Bureau's ruling. On September 1 2 , 2008, the FCC issued an order denying the application and c o m p e llin g disclosure, again on the ground that Exemption 7(C) d o e s not apply to corporations. B e f o re addressing the merits, the FCC held that AT&T f a ile d to comply with the FCC's regulations in filing its application f o r review of the Bureau's order. Generally, only a FOIA requester m a y file an application for the FCC to review the Bureau's re so lu tio n of that request. But, there is an exception. According to 47 C.F.R. § 0.461(i)(1), when a FOIA request for inspection of re c o rd s submitted in confidence pursuant to §§ 0.457(d) or 0.459 is granted (even if only in part), the submitter of the information ­ in addition to the requester ­ may file an application for review. T h e FCC determined, however, that AT&T did not submit the m a te ria l it provided to the FCC in confidence pursuant to either of th o s e regulations, because AT&T failed to include with that m a ter ial a request that the FCC treat that material as confidential. N e v e rth e le s s , the FCC stated that it would, "on [its] own motion," c o n sid e r the merits of AT&T's application for review. App. 10. T h e FCC then held that a corporation lacks "personal p riv a c y" within the meaning of Exemption 7(C). It determined that 4

F C C precedent supports this view, App. 10 (citing Chadmoore C o m m c 'n , Inc., 13 FCC Rcd. 23943, 23946-47 ¶ 7 (1998)), as does ju d ic ia l precedent, App. 11-12 (citing U.S. Dep't of Justice v. R e p o rte rs Comm. for Freedom of the Press, 489 U.S. 749, 756 (1 9 8 9 ); Wash. Post Co. v. U.S. Dep't of Justice, 863 F.2d 96, 1000 1 (D.C. Cir. 1988); Cohen v. EPA, 575 F. Supp. 425, 429-30 (D .D .C . 1983)). The FCC also concluded that this interpretation a c co rd s with the Exemption's purpose to protect key players in an in v e s tig a t io n ­ targets, witnesses, and law enforcement officers ­ f ro m the "literal embarrassment and danger" that an individual m ig h t suffer, rather than from the "more abstract impact" that a c o r p o ra tio n might suffer. App. 12. The FCC stated that a c o rp o ra tio n 's privacy interests in other contexts ­ such as Fourth A m e n d m e n t search-and-seizure law and the discovery regime c re a te d by the Federal Rules of Civil Procedure ­ have no bearing o n whether a corporation has a privacy interest in the context of E x e m p tio n 7(C). App. 13. A T & T filed a petition for review of the FCC's order, a rg u in g that the FCC incorrectly interpreted Exemption 7(C) to p re v e n t a corporation from claiming a "personal privacy" interest. A T & T further argues that, should we interpret the statute to allow a corporation to claim a "personal privacy" interest, disclosure of A T & T 's documents is, as a matter of law, reasonably likely to c o n stitu te an "unwarranted invasion" of that interest. The FCC and C o m p T e l (who entered this case as an intervenor) oppose on the m e rits and also raise certain threshold issues. CompTel argues that th is Court lacks subject matter jurisdiction over AT&T's petition f o r review and therefore must dismiss. The FCC argues that we sh o u ld deny the petition for review because AT&T failed to c h a llen g e the FCC's determination that AT&T did not comply with c e rta in procedural requirements during the administrative p r o c e e d i n g s .1

1

Disclosure is currently stayed pending the outcome of this

a p p e a l. 5

II. T h e FCC had jurisdiction to issue its order denying AT&T's a p p lic a tio n for review. See 47 U.S.C. §§ 154(i) (providing that the F C C "may perform any and all acts, make such rules and re g u l a ti o n s , and issue such orders, not inconsistent with [the C o m m u n ic a tio n s Act of 1934 ("Communications Act"), 47 U.S.C. § § 151-615b], as may be necessary in the execution of its f u n c tio n s" ), 155(c)(5) (authorizing the FCC to adjudicate ap p lica tio n s for review of order issued by delegated panel). C o m p T e l argues that we lack appellate jurisdiction. We disagree. C o m p T el asserts that because the Administrative Procedure A c t ("APA") confers AT&T's cause of action, and because 28 U .S .C . § 1331 provides jurisdiction to review an APA claim, the d is tric t courts have jurisdiction to hear AT&T's petition for review. C o m p T e l acknowledges that 28 U.S.C. § 2342(1) gives the courts o f appeals exclusive jurisdiction over orders "under" the C o m m u n ic a tio n s Act within the meaning of 47 U.S.C. § 402(a), b u t argues that the FCC's order in this matter is not such an order. C o m p T el made this argument for the first time to this Court in opposing AT&T's petition for review (which is the first time it c o u ld have made this argument). Therefore, there is no decision on th i s issue to review, and we will address the issue in the first in s ta n c e. S e c tio n 2342 provides that "[t]he court[s] of appeals . . . h a [ v e ] exclusive jurisdiction to enjoin, set aside, suspend (in whole o r in part), or to determine the validity of­(1) all final orders of the [ F C C ] made reviewable by section 402(a) of title 47." 28 U.S.C. § 2342(1). A "final order[] of the [FCC] made reviewable by s e c tio n 402(a) of title 47," § 2342(1), is, with certain exceptions n o t relevant here, "an[] order of the [FCC] under th[e C o m m u n ic a tio n s ] Act . . . ." 47 U.S.C. § 402(a). Thus, we have ju risd ictio n to review the FCC's order adjudicating AT&T's a p p lic a tio n for review if that order is an order "under" the C o m m u n ica tio n s Act. C o u rts have consistently held that an order adjudicating an 6

a lle g e d violation of FCC regulations is an order "under" the C o m m u n ic a tio n s Act within the meaning of § 402(a). See, e.g., R o c k y Mountain Radar, Inc. v. FCC, 158 F.3d 1118, 1119, 11212 3 (10th Cir. 1998) (holding that an order determining that a b u s in e ss violated FCC regulations governing the marketing of ra d a r-ja m m in g devices is an order "under" the Communications A c t within the meaning of § 402(a)); Maier v. FCC, 735 F.2d 220, 2 2 4 (7th Cir. 1984) (holding that order determining that a b ro a d c as tin g company did not violate FCC regulations governing p e rs o n a l attacks on news subjects is an order "under" the C o m m u n ic a tio n s Act within the meaning of § 402(a)). The FCC's order that is the subject of AT&T's petition for r e v ie w adjudicated AT&T's claim that disclosure of the in f o rm a tio n collected by the FCC concerning the E-Rate program in New London would violate FCC regulations implementing E x e m p tio n 7(C).2 Therefore, the order constituted an order "u n d er" the Communications Act within the meaning of § 402(a). A s a result, § 2342(1) provides that the courts of appeals have ex clu s iv e jurisdiction to review that order.3
2

FOIA itself does not prohibit disclosure of information f a llin g within its exemptions. When information falls within an e x e m p tio n , no party can compel disclosure, but the FCC can still m a k e a disclosure on its own accord unless some independent s o u rc e of law prohibits the agency from doing so. See Chrysler C o rp . v. Brown, 441 U.S. 281, 293 (1979) (explaining that, s ta n d in g alone, FOIA's exemptions "do[] not give [courts] the a u th o rity to bar disclosure"). Thus, the disclosure of information f a llin g within an exemption does not violate FOIA itself, but rather a n independent source of law. Here, FCC regulations provide this in d e p e n d en t source. See 47 C.F.R. § 0.457(g)(3) (prohibiting d isclo su re of information covered by Exemption 7(C)). CompTel cites two cases, Chrysler, 441 U.S. 281, and GTE S ylv a n ia , Inc. v. Consumer Product Safety Comm'n, 598 F.2d 790 (3 d Cir. 1979), which it claims stand for the proposition that the d is tric t courts, not the courts of appeals, have jurisdiction to review re v e rs e -F O IA claims. CompTel is mistaken. True, in each of th o s e cases, the district courts, rather than the courts of appeals, 7
3

I I I. N e x t , the FCC argues that we must affirm the order because A T & T has failed to challenge the FCC's determination that AT&T f a iled to comply with relevant procedural requirements in filing its a p p lic a tio n for review of the Bureau's order. We disagree. T h e FCC made this argument for the first time in opposing A T & T 's petition for review (which is the first time it could have m a d e this argument). Therefore, there is no decision on this issue to review, and we will address the issue in the first instance. When a decision rests on multiple, independent grounds, a reviewing c o u rt should affirm it if one of those grounds is correct. See Levy v . Sterling Holding Co., 544 F.3d 493, 508-09 (3d Cir. 2008). An a p p e lla n t waives an argument in support of reversal if he does not ra is e that argument in his opening brief. FDIC v. Deglau, 207 F.3d 1 5 3 , 169 (3d Cir. 2000). A T & T 's procedural default was not an independent ground su p p o rtin g the FCC's decision. The FCC, in its order, specifically sta ted that although it recognized AT&T's default, it would c o n s id e r AT&T's claims on the merits "on [its] own motion." A p p . 10. This belies the FCC's claim that procedural default was a n alternative holding. If it truly was an alternative holding, the F C C would not have needed to make its "own motion" to excuse th e default in order to reach the merits. It could have discussed p ro c e d u ra l default and then, separately and without any justifying s e g u e , discussed the merits. Had the FCC done this, the procedural d e f au lt holding would stand as an independent, sufficient ground f o r denial. That the FCC did not do this tells us that it did not (e v e n in the alternative) base its decision on procedural default.4

had jurisdiction to hear a reverse-FOIA claim. But neither of those o p in i o n s indicate that the laws allegedly barring disclosure in those c a se s contain any provision triggering the operation of a statute that w o u ld have vested jurisdiction exclusively in another court. If the FCC lacked the authority to consider the merits on its own motion, then perhaps its order actually did consist of two a ltern a ti v e holdings. If the FCC lacked such authority, then its 8
4

IV . A T & T argues that the FCC incorrectly interpreted E x e m p tio n 7(C) when it held that a corporation lacks the "personal p riv a c y" protected by that exemption. We agree with AT&T. T h e FCC's interpretation of Exemption 7(C) is not entitled to deference under Chevron U.S.A., Inc. v. Natural Res. Def. C o u n c il, Inc., 467 U.S. 837 (1984), because FOIA applies g o v e rn m e n t-w id e , and no one agency is charged with enforcing it. A C L U v. Dep't of Def., 543 F.3d 59, 66 (2d Cir. 2008) (declining to accord deference to Department of Defense interpretation of F O IA ). Thus, we exercise plenary review of the FCC's in ter p re tatio n of FOIA, and will set aside the FCC's decision if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in ac co rd a n ce with law." See 5 U.S.C. § 706(2)(A). A. In 1966, dissatisfied with then-existing statutory m e c h a n is m s compelling disclosure of Government records, C o n g re ss enacted FOIA to improve public access to information c o n tro lle d by federal agencies. See OSHA Data/CIH, Inc. v. U.S. D e p 't of Labor, 220 F.3d 153, 160 (3d Cir. 2000) (describing C o n g re ss 's intent). FOIA embodies a philosophy of full d is c l o s u re : an agency may deny a reasonable request for in f o rm a tio n only if the information falls into a statutorily d e lin e a te d exemption. Id. This case concerns the so-called law enforcement

justification for issuing a merits holding ­ its "own motion" to e x c u se procedural default ­ would have been erroneous, and all th a t would have remained would be one procedural default holding a n d one merits holding, with nothing connecting the two. But C o m p T e l does not appear to argue that the FCC lacked such a u th o rity, and for good reason: the FCC had it. See 47 C.F.R. § 1 .3 (allowing the FCC to waive any regulation "for good cause sh o w n "). 9

ex em p tio n , Exemption 7(C), which shields from mandatory d is c lo s u re "records or information compiled for law enforcement p u rp o s e s, but only to the extent that the production of such law e n f o rc e m e n t records or information . . . could reasonably be e x p e cte d to constitute an unwarranted invasion of personal p riv a c y." 5 U.S.C. § 552(b)(7)(C). FOIA's Exemption 6 also uses th e phrase "personal privacy," shielding from compulsory d is c lo s u re "personnel and medical files and similar files the d is c lo s u re of which would constitute a clearly unwarranted in v a sio n of personal privacy." § 552(b)(6). FOIA does not define " p e rso n a l," but it does define "person" to "include[] an individual, p a rtn e r s h ip , corporation, association, or public or private o rg a n izatio n other than an agency." § 551(2). N e ith e r the Supreme Court nor this Court has ever squarely re je c te d a proffered personal privacy interest of a corporation. The m o s t that can be said of the Supreme Court's cases and of our cases is that they suggest that Exemptions 7(C) and 6 frequently and p rim a rily protect ­ and that Congress may have intended them to p ro te c t ­ the privacy of individuals. See, e.g., Reporters Comm., 4 8 9 U.S. at 764 n.16; U.S. Dep't of State v. Wash. Post Co., 456 U .S . 595, 599 (1982); Davin v. U.S. Dep't of Justice, 60 F.3d 1043, 1 0 5 8 (3d Cir. 1995) (citing Landano v. U.S. Dep't of Justice, 956 F .2 d 422, 426 (3d Cir. 1992)); Manna v. U.S. Dep't of Justice, 51 F .3 d 1158, 1166 (3d Cir. 1995); Cuccaro v. Sec'y of Labor, 770 F .2 d 355, 359 (3d Cir. 1985) (citing Lame v. U.S. Dep't of Justice, 6 5 4 F.2d 917, 923 (3d Cir. 1981)). B. A s the Supreme Court has held, a court must "begin by lo o k in g at the language of the [statute] . . . . When [the court] f in d [ s] the terms of a statute unambiguous, judicial inquiry is c o m p lete , except `in rare and exceptional circumstances.'" Rubin v . United States, 449 U.S. 424, 429-30 (1981) (quoting TVA v. H ill, 437 U.S. 153, 187 n.33 (1978) (quotation marks and citation o m i tt e d ) ) . AT&T argues that the plain text of Exemption 7(C) in d ic a te s that it applies to corporations. After all, "personal" is the 10

a d je c tiv a l form of "person," and FOIA defines "person" to include a corporation. We agree. It would be very odd indeed for an a d je c tiv a l form of a defined term not to refer back to that defined te rm . See Del. River Stevedores v. DiFidelto, 440 F.3d 615, 623 ( 3 d Cir. 2006) (Fisher, J., concurring) (stating that it is a " g ra m m a tic a l imperative[]" that "a statute which defines a noun h as thereby defined the adjectival form of that noun"). Further, F O IA 's exemptions indicate that Congress knew how to refer s o le ly to human beings (to the exclusion of corporations and other le g a l entities) when it wanted to. Exemption 7(F), for example, p ro te c ts information gathered pursuant to a law enforcement in v e s tig a tio n that, if released, "could reasonably be expected to e n d a n g e r the life or physical safety of any individual." 5 U.S.C. § 5 5 2 (b )( 7 )( F ) (emphasis added). Yet, Congress, in Exemption 7(C), d id not refer to "the privacy of any individual" or some variant th e re o f ; it used the phrase "personal privacy." T h e FCC and CompTel's text-based arguments to the c o n tra ry are unconvincing. They cite Supreme Court case law for th e proposition that, whenever possible, statutory words should be in ter p re ted "in their ordinary, everyday senses." Malat v. Riddell, 3 8 3 U.S. 569, 571 (1966). The ordinary meaning of "person" is h u m a n being, so, the argument concludes, "personal" must in c o rp o ra te this ordinary meaning. This argument is unpersuasive. It fails to take into account that "person" ­ the root from which the s ta t u t o r y word at issue is derived ­ is a defined term. See B is k u p s k i v. Att'y Gen., 503 F.3d 274, 280 (3d Cir. 2007) ("If, as h e re , `a statute includes an explicit definition, we must follow that d ef in itio n , even if it varies from that term's ordinary meaning.'" (q u o tin g Stenberg v. Carhart, 530 U.S. 914, 942 (2000))). T h e FCC and CompTel next argue that FOIA's other uses o f the phrase "personal privacy" indicate that the phrase does not e n c o m p a s s corporations. They point to Exemption 6, which shields fro m mandatory disclosure "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted in v a sio n of personal privacy," 5 U.S.C. § 552(b)(6), and observe th a t courts have held that this exemption applies only to individuals a n d not to corporations. Thus, the FCC and CompTel argue, the p h r a s e "personal privacy" in Exemption 6 applies only to 11

in d iv id u a ls , and therefore "personal privacy" in Exemption 7(C) a p p lie s only to individuals, as well. This argument is flawed. S u p p o s e (though we express no opinion on the issue) that E x em p tio n 6 applies only to individuals (and not to corporations). T h is does not mean that each and every component phrase in that ex em p tio n , taken on its own, limits Exemption 6 to individuals. It m e a n s only that some language in that exemption does so. The p h ra se "personnel and medical files" serves this function. It limits E x e m p tio n 6 to individuals because only individuals (and not c o rp o ra tio n s ) may be the subjects of such files. Therefore, nothing n e c e s s a rily can be gleaned about the scope of "personal privacy," b e c a u s e Exemption 6 would apply only to individuals even if " p e r s o n a l privacy," taken on its own, encompasses corporations. T h u s , we hold that FOIA's text unambiguously indicates th a t a corporation may have a "personal privacy" interest within the m e a n in g of Exemption 7(C). This, for us, ends the matter. Rubin, 4 4 9 U.S. at 429-30. We need not consider the parties' arguments c o n c e r n in g statutory purpose,5 relevant (but non-binding) case

Nevertheless, we note that interpreting "personal privacy" ac co rd in g to its plain textual meaning serves Exemption 7(C)'s p u rp o s e of providing broad protection to entities involved in law e n f o rc e m e n t investigations in order to encourage cooperation with f e d e ra l regulators. Corporations, like human beings, are routinely in v o lv e d in law enforcement investigations. Corporations, like h u m a n beings, face public embarrassment, harassment, and stigma b e c a u se of that involvement. Reading "personal privacy" to e x c lu d e corporations would disserve Exemption 7(C)'s purpose of e n c o u ra g in g corporations ­ like human beings ­ to cooperate and b e forthcoming in such investigations. Finally on this topic, "[t]he b est evidence of th[e] purpose [of a statutory text] is the statutory te x t adopted by both Houses of Congress and submitted to the P r e sid e n t." W. Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 98 (1 9 9 1 ), superseded by statute on other grounds, Civil Rights Act of 1 9 9 1 , Pub. L. No. 102-166, 105 Stat. 1071 (1991). That text, we h a v e explained, demonstrates that a corporation may have "p erso n al privacy" within the meaning of Exemption 7(C). 12

5

la w ,6 and legislative history.7
6

The Court of Appeals for the District of Columbia Circuit c a s e s discussed by the parties ­ Multi Ag Media LLC v. D ep artm en t of Agriculture, 515 F.3d 1224 (D.C. Cir. 2008), J u d ic ia l Watch, Inc. v. FDA, 449 F.3d 141 (D.C. Cir. 2006), and W a sh in g to n Post, 863 F.2d 96 ­ do not impugn our textual a n a lys is . The court in Multi Ag Media suggested that "personal p riv a c y" within the meaning of Exemption 6 extends to individuals o n l y. But it appears to have inferred this conclusion from its o b s e rv a tio n that Congress's main purpose in enacting Exemption 6 was to protect individuals (and not necessarily corporations). See 5 1 5 F.3d at 1228. We do not believe that inferring the statute's m e a n in g merely from evidence of the enacting Congress's chief p u rp o s e is analytically appropriate: "`the fact that a statute can be a p p lie d in situations not expressly anticipated by Congress does not d e m o n s tra te ambiguity. It demonstrates breadth.'" PGA Tour, Inc. v . Martin, 532 U.S. 661, 689 (2001) (quoting Pa. Dep't of Corr. v. Y e sk e y, 524 U.S. 206, 212 (1988) (quotation marks omitted)). The Ju d icia l Watch court, in applying Exemption 6, considered only in d iv id u a ls ' privacy interests in balancing "personal privacy" a g a in s t the need for public disclosure. Yet the court's description o f the parties' arguments indicates that the FDA (the federal a g e n c y holding the documents in that case), in its attempt to resist d is c lo s u re , only cited individual privacy interests in the first place. S e e 449 F.3d at 152-53. Thus, the court never had the occasion to p a s s on whether "personal privacy" encompasses corporate p riv a c y. Finally, the court in Washington Post noted that E x e m p ti o n 7(C) concerns only "intimate" details, including " m a r ita l status, legitimacy of children, identity of fathers of c h ild re n , medical condition, welfare payments, alcoholic c o n su m p tio n , family fights, and reputation." 863 F.2d at 100. But a corporation, too, has a strong interest in protecting its reputation. In any event, to the extent that these cases can be read to c o n f lic t with our textual analysis, we decline to follow them. We decline the FCC and CompTel's invitation to examine th e legislative history of Exemption 7(C) because we find the text o f FOIA to be unambiguous. See In re Mehta, 310 F.3d 308, 311 13
7

V. A T & T next argues that, as a matter of law, the invasion of p e rs o n a l privacy caused by the release of the documents the c o m p a n y submitted to the FCC could reasonably be expected to be " u n w a rra n t e d " within the meaning of Exemption 7(C). We d is a g re e . A T & T made this argument to the FCC during the a d m in is tra tiv e proceedings, but because the FCC held that " p e rs o n a l privacy" does not apply to corporations, the FCC did not h av e occasion to discuss whether a potential invasion of AT&T's " p e rs o n a l privacy" would be "unwarranted." Therefore, there is no d e c is io n on this issue to review. " [ U ]n d e r settled principles of administrative law, when a c o u rt reviewing agency action determines that an agency made an e rro r of law, the court's inquiry is at an end: the case must be r e m a n d e d to the agency for further action consistent with the c o rre c te d legal standards." N.C. Fisheries Ass'n, Inc. v. Gutierrez, 5 5 0 F.3d 16, 20 (D.C. Cir. 2008) (quoting PPG Indus. v. United S tate s, 52 F.3d 363, 365 (D.C. Cir. 1995)). AT&T attempts to a v o id this bedrock principle by noting that "when [a FOIA] request s e e k s no `official information' about a Government agency, but m e re ly records that the Government happens to be storing," g ra n tin g that request would, as a matter of law, constitute a "clearly u n w a rra n te d " invasion of personal privacy within the meaning of E x e m p tio n 7(C), Reporters Comm., 489 U.S. at 780, so remand w o u ld be unnecessary. AT&T argues that none of the AT&T

(3d Cir. 2002) ("We look to the text of a statute to determine c o n g re ss io n a l intent, and look to legislative history only if the text is ambiguous."); see generally Bruesewitz v. Wyeth, Inc., 561 F.3d 2 3 3 , 244 (3d Cir. 2009) ("We have recognized that legislative h is to ry is not without its shortcomings as a tool of interpretation. ` A s a point of fact, there can be multiple legislative intents because h u n d re d s of men and women must vote in favor of a bill in order f o r it to become a law.'") (quoting Morgan v. Gay, 466 F.3d 276, 2 7 8 (3d Cir. 2006)). 14

re c o rd s that CompTel wants disclosed contains "official in f o rm atio n " about the FCC or otherwise pertain to the FCC's c o n d u c t. Rather, AT&T contends that the request is aimed at g a th e rin g information about AT&T, contained in AT&T d o c u m e n ts , that "the Government happens to be storing," id., by v irtu e of the Bureau's investigation. We cannot agree. CompTel's F O IA request does not fit into that narrow category. C o m p T e l has indeed alleged that it seeks "`official in f o rm a tio n ' about a Government agency." Id. For example, in its o p p o s itio n to AT&T's letter-request to block disclosure, CompTel e x p la in s that it seeks information about "the receipt of universal s e rv ic e support [the E-Rate program] for the New London C o n n e c tic u t Public Schools." App. 37. CompTel notes that the F C C "terminated the investigation upon issuing an Order adopting a Consent Decree." App. 37. E-Rate has (at least) two p a rtic ip a n ts : AT&T, which provides services to the local school d istric ts (and bills the Government), and the FCC, which actually a d m in is te rs the entire operation. It stands to reason, then, that d o c u m e n ts in the FCC's investigative file may shed light on the F C C 's administration of E-Rate. This is especially true given that C o m p T e l made (as it was entitled to make) a very broad request for " a ll" the documents in the investigative file, not merely for those lim ite d to, say, employee home addresses, which would be less l ik e l y to provide any insight into the functioning of a federal a g e n c y. 8 W e therefore abide by long-established principles of

Further, determining that each document AT&T submitted to the FCC contains some protected content would be difficult e n o u g h , but FOIA requires more. We would have to be convinced th a t every "reasonably segregable portion" of each document c o n ta in s protected information. 5 U.S.C. § 552(b) (flush language) ( e m p h a s is added). Holding, on the very limited record before us, th a t Exemption 7(C) protects every reasonably segregable jot and tittle of each document that AT&T submitted would be truly e x tra o rd in a ry, and, in our view, not an appropriate course of action f o r a reviewing court to undertake in the first instance. 15

8

a d m in istra tiv e law and will remand the matter to the FCC with in s tru c tio n s to determine, in accordance with our construction of E x emp tio n 7(C), whether disclosure "could reasonably be expected to constitute an unwarranted invasion of personal privacy," § 5 5 2 (b)(7 )(c). V I. F o r the above reasons, we will grant AT&T's petition for re v ie w and remand the matter to the FCC for further proceedings c o n sis te n t with this opinion.

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