Privacy exceptionalism and confidentiality versus the public interest in uncovering universal service fraud

Communication Law and Policy

Volumn 20, Issue 2, 2015, Pages 149-190

  Cramer, Benjamin W ^a  

^a PENNSYLVANIA STATE UNIVERSITY   (United States)

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EID: 84928470803     PISSN: 10811680     EISSN: None     Source Type: Journal    
DOI: 10.1080/10811680.2015.1023157     Document Type: Article

References (233)

1. See ROBERT W. CRANDALL & LEONARD WAVERMAN, WHO PAYS FOR UNIVERSAL SERVICE?: WHEN TELEPHONE SUBSIDIES BECOME TRANSPARENT 5-9 (2000); MILTON L. MUELLER JR., UNIVERSAL SERVICE: COMPETITION, INTERCONNECTION, AND MONOPOLY IN THE MAKING OF THE AMERICAN TELEPHONE SYSTEM 4-10 (1997).
2. See MUELLER, supra note 1, at 166-71. The FCC manages the universal service program per the Telecommunications Act of 1996, Pub. L. 104-104, 110 Stat. 56, 47 U.S.C. § 254 (1996).
3. 842 F. Supp. 2d 65 (D.D.C. 2012).
4. 5 U.S.C. § 552 (2002).
5. 5 U.S.C. § 552(b)(4); 5 U.S.C. § 552(b)(6) (2002).
6. The FOIA includes a provision that allows the requester of documents to contest an agency rejection in court, as a form of appeal that prevents the government employees who control documents from gaining toomuch power over the disclosure process. 5U.S.C. § 552(a)(4)(B) (2002).
7. Skybridge, 842 F. Supp. 2d at 71.
8. Id. at 83-84.
9. The concept of “privacy exceptionalism” in FOIA privacy disputes was first developed, though not under that particular name, in Michael Hoefges, Martin E. Halstuk & Bill F. Chamberlin, Privacy Rights Versus FOIA Disclosure Policy: The “Uses and Effects” Double Standard in Access to Personally Identifiable Information in Government Records, 12 WM. & MARY BILL RTS J. 1 (2003). “Privacy exceptionalism” in this context was first named in Martin E. Halstuk, Benjamin W. Cramer & Michael D. Todd, Public Interest . . . what Public Interest? How the Rehnquist Court Created the FOIA Privacy Exceptionalism Doctrine, paper presented at the Association for Education in Journalism and Mass Communication annual conference, Chicago, IL, Aug. 12, 2012. For a modified version of the conference paper, in which “privacy exceptionalism” was further defined, see Martin E. Halstuk, Benjamin W. Cramer & Michael D. Todd, Tipping the Scales: How the U.S. Supreme Court Eviscerated Freedom of Information in Favor of Privacy, in TRANSPARENCY 2.0: DIGITAL DATA AND PRIVACY IN AWIREDWORLD 16, 20-24 (Charles N. Davis & David Cuillier, eds., 2014).
10. See Claire Milne, Stages of Universal Service Policy, 22TELECOMM. POL’Y 775, 775-76 (1998).
11. Thomas I. Emerson, Toward a General Theory of the First Amendment, 72 YALE L.J. 877, 883 (1963).
12. See Marlin Blizinsky, Questions for Outlining a Universal Service Policy, in MAKING UNIVERSAL SERVICE POLICY: ENHANCING THE PROCESS THROUGH MULTIDISCIPLINARY EVALUATION 59, 60 (Barbara A. Cherry, Steven S. Wildman & Allen S. Hammond IV eds., 1999).
13. See Marlin Blizinsky & Jorge Reina Schement, Rethinking Universal Service:What’s on the Menu, in MAKING UNIVERSAL SERVICE POLICY, id. at 71-75.
14. Universal service can be considered part of a safety net for citizens who may not have access to affordable telecommunications service. In the United States, the FCC is not specifically required to make service available for all citizens, but it has been instructed by Congress per the Communications Act of 1934 and the Telecommunications Act of 1996 to uphold “the public interest, convenience, and necessity” engendered by a functional and robust telecommunications network. This, in turn, is the inspiration for many regulatory programs in the public interest, including the universal service regime described herein. For an analysis of the strengths and weaknesses of the public interest standard in telecommunications regulation, see Erwin G. Krasnow & Jack N. Goodman, The Public Interest Standard: The Search for the Holy Grail, 50 FED. COMM. L.J. 605, 624-30 (1997).
15. MUELLER, supra note 1, at 4.
16. See id. at 34-37. The expansion of competition got off to a slow start due to Bell’s control of his patents, which he used to suppress potential competitors until the late 1880s.
17. See id. at 96.
18. See ROB FRIEDEN, WINNING THE SILICON SWEEPSTAKES: CAN THE UNITED STATES COMPETE IN GLOBAL TELECOMMUNICATIONS? 110 (2010).
19. See MUELLER, supra note 1, at 129.
20. See CRANDALL&WAVERMAN, supra note 1, at 6.
21. See MUELLER, supra note 1, at 130-31.
22. See CRANDALL&WAVERMAN, supra note 1, at 6.
23. See MUELLER, supra note 1, at 136-37.
24. See id. at 150.
25. 47 U.S.C. § 151 (1934, amended 1996).
26. See Carol Weinhaus, Robert K. Lock, Harry Albright, Mark Jamison, Fred Hedemark, Dan Harris & Sandra Makeeff, Overview of Universal Service, in MAKING UNIVERSAL SERVICE POLICY, supra note 12, at 111, 112-16.
27. See Barbara A. Cherry & Steven S. Wildman, Review of Federal Universal Service Policy in the United States, in MAKING UNIVERSAL SERVICE POLICY, supra note 12, at 167, 168-69.
28. See FRIEDEN, supra note 17, at 113-14.
29. See CRANDALL&WAVERMAN, supra note 1, at 6; FRIEDEN, supra note 17, at 110.
30. See FRIEDEN, supra note 17, at 111. The phenomenon of expensive long-distance calls and cheap local calls is the most common method of cross-subsidization for achieving universal service in the United States, with telephone customers effectively paying for a subsidy with one type of call while receiving a subsidy for the other type of call. However, how and why this happened was not disclosed to the typical customer.
31. 47 U.S.C. §§ 254(b)(1)-254(b)(4) (1996).
32. See FRIEDEN, supra note 17, at 112. The FCC provides a “low estimate” of $2.96 and a “high estimate” of $3.62 per household per month. Federal Communications Commission, Universal Service Monitoring Report: 2012, CC Docket No. 98-202 (2012), available at http://hraunfoss.fcc.gov/edocs public/attachmatch/DOC-319744A1.pdf (last visited Jan. 17, 2015), at 1.17.
33. See CRANDALL&WAVERMAN, supra note 1, at 129-30.
34. 47 U.S.C. §§ 254(b)(1)-254(b)(4) (1996).
35. See James McConnaughey, Universal Service and the National Information Infrastructure (NII): Making the Grade on the Information Superhighway, in MAKING UNIVERSAL SERVICE POLICY, supra note 12, at 189, 191-94. Meanwhile, the FCC is saddled with regulatory classifications that were codified in the Telecommunications Act of 1996, each with its own level of regulation. For example, landline telephones have been classified as a “telecommunications service” which carries stronger public-interest regulations, while cable modem Internet service has been classified as an “information service” which carries much less regulation. The Commission must assign each regulated telecommunications technology to one (and only one) of these existing regulatory classifications as codified in 1996, despite the fact that since then, many of the technologies have converged. For instance, the “Voice over Internet Protocol” service offered by Skype has components of both telecommunications service and information service. This pattern of inflexible regulatory classification restricts the ability of the Commission to add older public interest justifications to its regulation of newer technologies, resulting in a disconnect between phone and Internet regulation (among others) that has become technologically untenable in more modern times. For an analysis of this pattern as caused by outdated statutory strictures, see generally Rob Frieden, What Do Pizza Delivery and Information Services Have in Common? Lessons from Recent Judicial and Regulatory Struggles with Convergence, 32 RUTGERS COMPUTER & TECH. L.J. 247 (2006).
36. For some critiques, see generally Lynne Holt & Mary Galligan, Mapping the Field: Retrospective of the Federal Universal Service Programs, 37 TELECOMM. POL’Y 773 (2013); Thomas Hazlett & Scott J. Wallsten, Unrepentant Policy Failure: Universal Service Subsidies in Voice and Broadband, Arlington Economics White Paper (2013), http://works.bepress.com/cgi/viewcontent.cgi?article=1153&context=scott wallsten (last visited Jan. 17, 2015).
37. Federal Communications Commission, In the Matter of Connect America Fund et al., WC Docket No. 10-90 et al., FCC 11-161, Nov. 18, 2011.
38. See Jon Brodkin, Verizon Would End “Century of Regulation” by Killing Wireline Phone, Says NY AG, ARSTECHNICA, Jul. 5, 2013, http://tinyurl.com/oqwspnm (last visited Jan. 17, 2015). The companies have also begun to complain about the responsibilities of collecting and managing so much universal service money in the form of fees charged to their customers. See Martin Kaste, Is It the End of the Line for the Landline?, NATIONAL PUBLIC RADIO, Nov. 18, 2013, http://www.npr.org/blogs/alltechconsidered/ 2013/11/18/246001725/have-we-reached-the-end-of-the-landline (last visited Jan. 17, 2015).
39. This is the path (an overhaul as opposed to minor incremental changes as before) recommended by Scott Wallsten, Thomas Hazlett and other economists. See Hazlett & Wallsten, supra note 35, at 52; Scott Wallsten, The Universal Service Fund: What Do High-Cost Subsidies Subsidize?, Technology Policy Institute White Paper, Feb. 2011, http://www.techpolicyinstitute.org/files/wallsten%20universal service money trail final.pdf (last visited Jan. 17, 2015), at 16.
40. Federal Communications Commission, Universal Service, http://transition.fcc.gov/wcb/tapd/universalservice/ (last visited Jan. 17, 2015).
41. Customers of prepaid cellular service plans also (indirectly) pay a universal service fee but not in the form of a regular monthly charge, which does not conform to the business model of that type of service. Instead, a percentage of the service plan charges paid by these customers is forwarded by each company to the USAC.
42. Federal Communications Commission, Universal Service Monitoring Report: 2014 (2014), http://transition.fcc.gov/DailyReleases/DailyBusiness/2014/db1204/DOC-330829A1.pdf (last visited Jan. 17, 2015), at 10.
43. Id. at 16. This figure is based on the portion of company revenues extending directly from telephone services billed to customers (about $70 billion based on previous-year figures) minus a variety of exemptions that are permitted per regulation.
44. Id. Note that Softbank Corporation acquired what is actually one of the largest telecommunications carriers, Sprint Nextel, in 2013. The previous year’s FCC Universal Service report noted that the revenues of the top five firms have made up at least 70% of the total since 2009. Federal Communications Commission, Universal Service Monitoring Report: 2013 (2013), http://transition.fcc.gov/Bureaus/Common Carrier/Reports/FCC-State Link/Monitor/2013 Monitoring Report.pdf (last visited Jan. 17, 2015), at Table 1.6.
45. See Eli M. Noam, Fundamental Instability:Why Telecom Is Becoming a Cyclical and Oligopolistic Industry, 18 INFO. ECON. & POL’Y 272, 279-80 (2006).
46. See supra note 37 and accompanying text.
47. Federal Communications Commission, supra note 41, at 20.
48. See Latoya Livingston, Top Economists Decry “Waste, Fraud, and Mismanagement” of the Universal Service Fund’s High Cost Fund, Minority Media & Telecom Council, Oct. 16, 2013, http://broadbandandsocialjustice.org/2013/10/top-economists-decrywaste-fraud-and-mismanagement-of-the-universal-service-funds-high-cost-fund/ (last visited Jan. 17, 2015). The cited article lists $64 billion from 1998 to 2012; the grand total mentioned in the main text adds the amount that has since been confirmed for 2013. See supra note 46 and accompanying text.
49. See Hazlett & Wallsten, supra note 35, at 2.
50. Jordan Malter, Who Gets Rich Off “Free” Government Phones, CNNMONEY, Oct. 26, 2012, http://money.cnn.com/2012/10/26/technology/mobile/tracfone-free-phones/index.html?iid=EL (last visited Jan. 17, 2015).
51. See Livingston, supra note 48.
52. See David Goldman, The Hidden 17% Tax: Your Cell Phone Bill, CNN MONEY, Jul. 10, 2013, http://money.cnn.com/2013/07/10/technology/mobile/wireless-taxes/ (last visited Jan. 17, 2015). Goldman calculates that 5.82% of the average monthly cellular bill goes to the Universal Service Fund. The “17%” in the article title refers to all taxes and fees.
53. Wallsten, supra note 38, at 3.
54. Paul Davidson, Greg Toppo & Jayne O’Donnell, Fraud, Waste Mar Plan to Wire Schools to Net, USA TODAY, Jun. 8, 2004, available at http://usatoday30.usatoday.com/money/industries/technology/2004-06-08-schools-net x.htm (last visited Jan. 17, 2015).
55. Congress of the United States, Congressional Budget Office, FINANCING UNIVERSAL TELEPHONE SERVICE 3 (2005), available at http://www.cbo.gov/sites/default/files/03-28-telephone.pdf (last visited Jan. 17, 2015).
56. See FRIEDEN, supra note 17, at 115-16.
57. See id. at 116-18. The only exception to this trend is the E-Rate program to provide advanced telecommunications services to schools and libraries. See supra note 27 and accompanying text. For further discussion of the effects of outdated technological regulations, see supra note 34.
58. See CRANDALL & WAVERMAN, supra note 1, at 125-26; FRIEDEN, supra note 17, at 118.
59. The FCC has been aware of USF fraud for several years, taking action against particular transgressions, but without being able to formulate a viable plan for combating it overall. See, e.g., Federal Communications Commission, In the Matter of OCMC, Inc. – Apparent Liability for Forfeiture, File No. EB-04-IH-0454, FCC 05- 157, Aug. 12, 2005; Federal Communications Commission, In the Matter of Telecom Management, Inc. – Apparent Liability for Forfeiture, File No. EB-04-IH-0587, FCC 05-156, Aug. 12, 2005. See also FRIEDEN, supra note 17, at 119-20. In 2013, Congress called for updated data on USF fraud and waste in the interests of possibly reforming the program. See Press Release, U.S. House of Representatives, Energy & Commerce Committee, Bipartisan Committee Leaders Request Updated Data on Universal Service Fund (Aug. 2, 2013), available at http://energycommerce.house.gov/press-release/bipartisan-committee-leaders-request-updated-data-universal-service-fund (last visited Jan. 17, 2015).
60. Spencer E. Ante, Millions Improperly Claimed U.S. Phone Subsidies, WALL STREET J., Feb. 11, 2013, available at http://online.wsj.com/news/articles/SB10001424127887323511804578296001368122888 (last visited Jan. 17, 2015). Note that the figure of $2.2 billion used in the cited article was a projected and unofficial figure at the time; the true figure for the year was later confirmed as $1.6 billion, which in turn was a slight decrease from the previous year. See Federal Communications Commission, Universal Service Monitoring Report: 2013, supra note 43, at Table 1.9.
61. See Zachary Pleat, Fox Continues Falsely Claiming Low-Income Phone Program Is Taxpayer Funded, Media Matters for America, Aug. 27, 2013, http://mediamatters.org/ blog/2013/08/27/fox-continues-falsely-claiming-low-income-phone/195618 (last visited Jan. 17, 2015). Political opponents of the universal service program are also prone to mischaracterizing each telephone customer’s contribution to theUniversal Service Fund as a “tax” when it is really a fee – an accusation that also has political impact. See also Malter, supra note 50.
62. See Brendan Sasso, GOP Senator Accuses the FCC of Missing “Obamaphone” Fraud, THE HILL, Aug. 15, 2013, http://thehill.com/blogs/hillicon-valley/technology/317225-sen-sessions-accuses-fcc-of-lax-oversight-of-obamaphone-program (last visited Jan. 17, 2015).
63. See Johna Till Johnson, Universal Service Fraud: Bailouts for Billionaires, NETWORK WORLD, Mar. 7, 2005, http://www.networkworld.com/columnists/2005/030705johnson.html (last visited Jan. 17, 2015).
64. See id.
65. See Andrew Walden, Sandwich Isles Communications: Political Connections Pay Off, HAWAI’I FREE PRESS, Jun. 16, 2009, available at http://www.hawaiifreepress.com/ArticlesMain/tabid/56/ID/821/Sandwich-Isles-Communications-Political-Connections-Pay-Off.aspx (last visited Jan. 17, 2015). It should be noted that Walden’s article incorrectly refers to the Universal Service Fund as a “tax,” and its allegations of political connections between various company leaders and Michael Powell are speculative.
66. See Harvey Averch & Leland L. Johnson, Behavior of the Firm Under Regulatory Constraint, 52 AM. ECON. REV. 1052, 1059-67 (1962).
67. See Todd Oppenheimer, The Internet School Scam, THE NATION, Jan. 29, 2004, available at http://www.thenation.com/article/internet-school-scam (last visited Jan. 17, 2015). Oppenheimer compared this episode to the story of “$640 toilet seats famously sold to the Pentagon by military contractors.” Id. See also Thomas W. Hazlett, “Universal Service” Telephone Subsidies: What Does $7 Billion Buy?, White Paper, http:// heartland.org/sites/all/modules/custom/heartland migration/files/pdfs/19520.pdf (last visited Jan. 17, 2015), at 53-54. This paper was originally written on behalf of The Seniors Coalition. See The Seniors Coalition, http://www.senior.org/ (last visited Jan. 23, 2015).
68. See Former School Officials Plead Guilty to E-Rate Fraud, Funds for Learning, May 26, 2011, http://www.fundsforlearning.com/news/2011/05/former-school-officialsplead-guilty-e-rate-fraud (last visited Jan. 17, 2015).
69. See Karl Bode, Yet Another Major FCC E-Rate Scandal Emerges: Millions Going to Orthodox Schools – Where Nobody Can Use Internet, DSL REPORTS, Feb. 20, 2013, http://www.dslreports.com/shownews/Yet-Another-Major-FCC-ERate-Scandal-Emerges-123180 (last visited Jan. 17, 2015)
70. Julie Wiener & Hella Winston, Haredi Schools Reap Millions in Federal Tech Funds, THE JEWISH WEEK, http://www.thejewishweek.com/node/29623/29623 (last visited Jan. 17, 2015).
71. See Hazlett, supra note 67, at 69.
72. See Leichtman Research Group, Research Notes 1Q 2006, http://www.leichtmanresearch.com/research/notes03 2006.pdf (last visited Jan. 17, 2015), at 7.
73. See Esther Shein, Mobile Networks Penetrate 90% ofWorld’s Population, INFO.WEEK, Oct. 9, 2010, http://www.informationweek.com/mobile/mobile-networks-penetrate-90–of-worlds-population/d/d-id/1093445? (last visited Jan. 17, 2015).
74. See Hazlett & Wallsten, supra note 35, at 52.
75. See Hazlett, supra note 67, at 69. Traditionally, the remaining 5% was made up of households that were simply unreachable by wired networks, plus a small percentage of people who simply chose to remain disconnected from telephone service for economic or social reasons. In more recent years, this population also includes newer households who have never attempted to obtain landline telephone service because of the availability of other options. See Jorge Reina Schement & Scott C. Forbes, Identifying Temporary and Permanent Gaps in Universal Service, 16 THE INFO. SOC’Y 117, 124 (2000); Angela G. Calvo, Universal Service Policies in the Context of National Broadband Plans, OECD Digital Economy Papers No. 203 (2012), http://www.oecd-ilibrary.org/docserver/download/5k94gz19flq4.pdf?expires=1418775000&id=id&accname=guest&checksum=8C87F7574A783439FDBB-82CD885E57A5 (last visited Jan. 17, 2015), at 15-16.
76. See Hazlett & Wallsten, supra note 35, at 54.
77. 5 U.S.C. § 552 (2002). See http://www.fcc.gov/guides/how-determine-whatinformation-subject-foia-requests (last visited Jan. 17, 2015).
78. Id. Federal Communications Commission, How to Determine What Information is Subject to FOIA Requests, http://www.fcc.gov/guides/how-determine-whatinformation-subject-foia-requests (last visited Jan. 17, 2015). FOIA Exemption 6, 5 U.S.C. § 552(b)(6) (2002), applies to personally identifiable information and will be discussed later in this article. The “Privacy Act” referenced in the passage is the Privacy Act of 1974, 5 U.S.C. § 552a, Pub. L. 93–579, 88 Stat. 1896 (1974), a statute that operates similarly to FOIA Exemption 6. The act governs the disclosure of government documents containing personally identifiable information without the written consent of a named person. Unlike the FOIA, the Privacy Act is mostly targeted at intra-governmental data practices. Meanwhile, the FOIA requires all federal agencies to institute internal procedures to comply with the Act and to make those procedures visible to the public, hence the FCC web page described here. 5 U.S.C. §§ 552(a)(1)-552(a)(2) (2002).
79. 842 F. Supp. 2d 65, at 69 (D.C.D.C. 2012).
80. Id. at 69-70.
81. Id. at 70.
82. Id. at 71-72.
83. Id. at 70.
84. See infra notes 130-31 and accompanying text.
85. 842 F. Supp. 2d, at 71.
86. Per the FOIA, an agency must “determine within twenty days . . . after the receipt of any such request whether to comply with such request and shall immediately notify the person making such request of such determination and the reasons therefore, and of the right of such person to appeal to the head of the agency any adverse determination.” The agency must do the same for appeal requests in the same number of days. 5 U.S.C. § 552(a)(6)(A)(i) (2002). The reason for the multi-month delay cannot be found in the relevant FCC documentation, though it is known from the court ruling that the Commission was inquiring with Skybridge’s competitors about whether they would object to the release of the requested documents. Skybridge, 842 F. Supp. 2d, at 70-71.
87. Id. at 70-71.
88. Id. at 72.
89. Id. at 70-71, 72. This determination, with minor variations, was made for both of Skybridge’s FOIA requests: the one on Nov. 28, 2008, concerning the first three competitors, and the one on Dec. 4, 2008, concerning the fourth competitor.
90. 5 U.S.C. § 552(b)(4) (2002). This exemption to the Freedom of Information Act is discussed in detail infra.
91. The Freedom of Information Act mandates this process as a form of administrative relief, before taking a withholding dispute to court. 5 U.S.C. § 552(a)(6)(A)(ii) (2002).
92. 842 F. Supp. 2d at 71.
93. The reason for this second multi-month delay also cannot be determined from the relevant FCC documentation.
94. Federal Communications Commission, In the Matter of Skybridge Spectrum Foundation, On Requests for Inspection of Records and for Confidential Treatment, FOIA Control Nos. 2009-089 & 2009-136, Memorandum Report and Order, 25 F.C.C. Recd. 11064, Aug. 3, 2010.
95. Id. at 11067.
96. Id. at 11069.
97. Id. at 11067.
98. Id. Per the Freedom of Information Act, the requester is not required to even make such claims while requesting documents from a government agency, much less substantiate those claims at the time of the request. See infra notes 130-31 and accompanying text.
99. See 25 F.C.C. Recd. at 11069. The text quoted here pertains to Skybridge’s administrative appeal of the partial denial of its first FOIA request. With minor variations, the same determinations were made concerning the second Skybridge administrative appeal. Id. at 11070-71.
100. Id. at 11072.
101. 5 U.S.C. § 552(b)(6). This exemption to the Freedom of Information Act is discussed in detail later in this article.
102. 842 F. Supp. 2d 65, 74-75 (D.C.D.C. 2012).
103. Id. at 84-85.
104. Id. at 76.
105. Id. at 76-77.
106. Id. at 77.
107. Id. at 74.
108. Id. at 78. See also Perry v. Block, 684 F.2d 121, 125 (D.C. Cir. 1982) (ruling that “however fitful or delayed the release of information under the FOIA may be, once all requested records are surrendered, federal courts have no further statutory function to perform”).
109. Id. at 78.
110. Id. at 84-85. The saga was not quite over. Later in 2012, MCLM requested a review of the FCC’s decision to disclose to Skybridge the particular documents that actually were released under the FOIA requests. The FCC denied the request. Federal Communications Commission, In the Matter of Skybridge Spectrum Foundation, FOIA Control No. 2012-190, On Request for Inspection of Records, Memorandum Opinion and Order, FCC 12-113, Sept. 14, 2012.
111. 842 F. Supp. 2d at 80.
112. McDonnell Douglas Corp. v. Nat’l Aeronautics & Space Admin., 180 F.3d 303, 304 (D.C. Cir. 1999).
113. 842 F. Supp. 2d at 81-82. In this passage, “PSI” refers to the company Paging Systems, Inc.
114. Id. at 82.
115. Id. (emphasis in original).
116. Id. at 82-83. Recall that under the FOIA, Skybridge was not required to describe why the requested documents were important. See infra notes 130-31 and accompanying text.
117. Id. at 83 n.7 (citing SafeCard Services Inc. v. Securities & Exchange Commission, 926 F.2d 1197, 1205 (D.C. Cir. 1991)).
118. “Privacy exceptionalism” is discussed at infra notes 199-212 and accompanying text.
119. 842 F. Supp. 2d at 83 (citing Dep’t of State v. Washington Post Co., 456 U.S. 595, 602 (1982)). That case will be discussed in detail at infra notes 177-189 and accompanying text.
120. Id. at 84.
121. The court also avoided this question as irrelevant to the FOIA procedures at issue in the case.
122. 5 U.S.C. § 552 (2002). Congress revised FOIA in 1974, 1976, 1978, 1984, 1986, 1996 and 2002. For a history, see The National Security Archive, FOIA Legislative History, http://www2.gwu.edu/~nsarchiv/nsa/foialeghistory/legistfoia.htm (last visited Jan. 17, 2015).
123. S. REP. NO. 89-813 (1965).
124. H.R. REP. NO. 89-1497 (1966); S. REP. NO. 89-813 (1965). See also Hoefges, Halstuk & Chamberlin, supra note 9, at 9-10.
125. 5 U.S.C. § 552(f) (2002).
126. 5 U.S.C. § 552(a)(3) (2002).
127. See Durns v. Bureau of Prisons, 804 F.2d 701, 706 (D.C. Cir. 1986) (reasoning that personal need or the public’s curiosity have no relevance for a citizen’s right to request documents under the FOIA); Forsham v. Califano, 587 F.2d 1128, 1134 (D.C. Cir. 1978) (ruling that “Congress granted the scholar and the scoundrel equal rights of access to agency records”).
128. 5 U.S.C. § 552(a)(4)(B)(b) (2002), confirmed in Nat’l Labor Relations Bd. v. Robbins Tire & Rubber Co., 437 U.S. 214, 235-36 (1977).
129. 5 U.S.C. §§ 552(b)(1)-552(b)(9) (2002).
130. 5 U.S.C. § 552(b)(4) (2002).
131. 5 U.S.C. § 552(b)(6) (2002).
132. For a summary, see Benjamin W. Cramer, “The Nation’s Broadband Success Story”: The Secrecy of FCC Broadband Infrastructure Statistics, 31 HASTINGS COMM. & ENT. L.J. 339, 357-64 (2009).
133. 5 U.S.C. § 552(b)(4) (2002).
134. See Charles N. Davis, A Dangerous Precedent: The Influence of Critical Mass III on Exemption 4 of the Federal Freedom of Information Act, 5 COMM. LAW & POL’Y 183, 188 (2000)
135. Samuel L. Zimmerman, Understanding Confidentiality: Program Effectiveness and the Freedom of Information Act Exemption 4, 53 WM. & MARY L. REV. 1087, 1114 (2012).
136. See, e.g., Getman v. Nat’l Labor Relations Bd., 450 F.2d 670 (D.C. Cir. 1971); Sterling Drug Inc. v. Fed. Trade Comm’n, 450 F.2d 698 (D.C. Cir 1971); Grumman Aircraft Eng’g Corp. v. Renegotiation Bd., 425 F.2d 578 (D.C. Cir. 1970); Consumers Union of the U.S. Inc. v. Veterans Admin., 301 F. Supp 796 (D.N.Y. 1969).
137. 498 F.2d 765 (D.C. Cir. 1974).
138. Id. at 766.
139. Id. at 770.
140. See Cramer, supra note 136, at 359.
141. 498 F.2d at 766-67 (FOIA Exemption 4 “is necessary to protect the confidentiality of information which is obtained by the Government through questionnaires or other inquiries, but which would customarily not be released to the public by the person from whom it was obtained.”). Here the court referenced the original congressional debates during the formulation of Exemption 4. See S. REP. No. 89-813 (1965). The intent of Congress for the meaning of Exemption 4 was also discussed in Sterling Drug Inc. v. Fed. Trade Comm’n, 450 F.2d 698 (D.C. Cir. 1971), and Grumman Aircraft Eng’g Corp. v. Renegotiation Bd., 425 F.2d 578 (D.C. Cir. 1970), though this was not the question before the court in those cases.
142. See Cramer, supra note 136, at 360.
143. 975 F.2d 871 (D.C. Cir. 1992). This case is known as “Critical Mass III” due tomultiple appeals, remands and summary judgments all related to the same FOIA denial by the NRC. The Critical Mass Energy Project, now defunct, was an effort undertaken by consumer advocate Ralph Nader to increase the transparency of government licensing of nuclear power plants. The effort has since been taken up by Nader’s advocacy group Public Citizen. See Public Citizen, Critical Mass Energy Program, http://www.citizen.org/cmep/energyenviro nuclear/ (last visited Jan. 17, 2015).
144. Id. at 874.
145. Critical Mass Energy Project v. Nuclear Regulatory Comm’n, 644 F. Supp. 344, 346- 47 (D.D.C. 1986).
146. For a history, see Cramer, supra note 136, at 361 n.117.
147. Critical Mass III, 975 F.2d at 875.
148. Id. at 878 (emphasis added). The “reliability” of information collected by government is not mentioned in the National Parks ruling.
149. Id. at 878-79.
150. Id. at 878 (emphasis added). The “availability” of information collected by government is also not mentioned in the National Parks ruling.
151. See Cramer, supra note 136, at 362.
152. See Rena Steinzor, “Democracies Die Behind Closed Doors”: The Homeland Security Act and Corporate Accountability, 12 KANSAS J. OF L. & PUB. POL’Y 641, 653 (2003). A similar concern was voiced in a dissent to the Critical Mass III decision by future Supreme Court Justice Ruth Bader Ginsburg, who lamented that the new test would likely inspire agency and business abuse of the phrase “customarily not [to] be released to the public.” Critical Mass III, 975 F.2d at 883 (Ginsburg, J., dissenting).
153. See, e.g., Davis, supra note 138; Rocco J. Maffei, The Impact on FOIA after Critical Mass, 22 PUB. CONTRACT L.J. 757 (1993); Scott Raber, Reinventing a Less Vigorous Freedom of Information Act: The Aftermath of Critical Mass Energy Project v. Nuclear Regulatory Commission, 1994 ANNUAL SURVEY OF AMERICAN L. 79 (1994); G. Branch Taylor, The Critical Mass Decision: A Dangerous Blow to Exemption 4 Litigation, 2 COMMLAW CONSPECTUS 133 (1994).
154. See Cramer, supra note 136, at 362.
155. The present analysis concerns only FOIA Exemption 6. Note that FOIA Exemption 7(C) is also relevant for privacy in that it allows the withholding of documents pertaining to a law enforcement investigation in which the persons named in the documents could face harm from the disclosure of their identities, or that disclosure could hamper the investigation. 5 U.S.C. § 552(b)(7)(c) (2002). That exemption often comes up in privacy-related disputes over FOIA denials, and is often invoked by government agencies in conjunction with Exemption 6. However, Exemption 7(C) was not relevant in the Skybridge case analyzed in this article.
156. 5 U.S.C. § 552(b)(6) (2002). Congress wrote the exemption to include “personal and medical files” but noted that these were onlymeant to be examples of possible categories, and were not meant to exclude other categories of information. H.R. REP. NO. 89-1497 (1966), at 1.
157. H.R. REP. NO. 89-1497 (1966), at 32.
158. S. REP. NO. 89-813 (1965), at 44.
159. See Hoefges, Halstuk & Chamberlin, supra note 9, at 13.
160. See generally Martin E. Halstuk & Charles N. Davis, The Public Interest Be Damned: Lower Court Treatment of the Reporters Committee “Central Purpose” Reformulation, 54 ADMIN. L. REV. 983; Halstuk, Cramer & Todd, Tipping the Scales, supra note 9.
161. See Reporters Committee for Freedom of the Press, About Us, http://rcfp.org/about (last visited Jan. 17, 2015).
162. Dep’t of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989). This case will be discussed at infra notes 190-198 and accompanying text.
163. See REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, REPORT ON RESPONSES AND NON-RESPONSE OF THE EXECUTIVE AND JUDICIAL BRANCHES TO CONGRESS’ FINDING THAT THE FOI ACT SERVES “ANY PURPOSE” 2-3 (1998).
164. 425 U.S. 352 (1976).
165. Id. at 354-55.
166. Rose v. Dep’t of the Air Force, 495 F.2d 261, 263 (2nd Cir. 1974). See also 5 U.S.C. § 552(b)(2) (2002).
167. Id. at 266-68.
168. 425 U.S. at 376-77. The documents qualified for the “similar files” category under Exemption 6 because they pertained to “the discipline of cadet personnel” and included “privacy values” like other personnel files.
169. Id. at 380-81.
170. Id. at 361.
171. Id. at 382.
172. Hoefges, Halstuk & Chamberlin, supra note 9, at 18.
173. 456 U.S. 595 (1982).
174. Id. at 596-97.
175. Washington Post Co. v. Dep’t of State, 501 F. Supp. 1152 (D.D.C. 1980).
176. Washington Post Co. v. Dep’t of State, 647 F.2d 197, 198 (D.C. Cir. 1981).
177. Id. at 198-99. Here the court cited a precedent in which it ruled that similar information regarding the naturalization process for a new U.S. citizen also did not qualify for withholding under FOIA Exemption 6. Simpson v. Vance, 648 F.2d 10 (D.C. Cir. 1980).
178. See Hoefges, Halstuk & Chamberlin, supra note 9, at 18.
179. 456 U.S. at 600-01.
180. Id. at 600.
181. Id. at 603 n.5.
182. See Lillian R. Be Vier, Information about Individuals in the Hands of Government: Some Reflections on Mechanisms for Privacy Protection, 4 WM. & MARY BILL OF RTS. J. 455, 490 (1995).
183. U.S. DEPARTMENT OF JUSTICE, FREEDOM OF INFORMATION ACT GUIDE & PRIVACY ACT OVERVIEW 325-27 (2002).
184. Fed. Labor Relations Auth. v. Dep’t of Veterans Affairs, 958 F.2d 303, 310 (2nd Cir. 1992).
185. 489 U.S. 749 (1989).
186. Id. at 780. See also supra note 158.
187. See Hoefges, Halstuk & Chamberlin, supra note 9, at 26.
188. 489 U.S. at 763.
189. Id. at 763-64.
190. Hoefges, Halstuk & Chamberlin, supra note 9, at 23.
191. 489 U.S. at 772-73.
192. Id. at 774 (emphasis added).
193. See Halstuk & Davis, supra note 163, at 995. The authors condemn this development as “an alarming instance of judicial activism, with the Supreme Court having rewritten legislation in order to constrict the ambit of the FOIA’s statutory purpose.” Id. Note that in subsequent cases, the concept has been dubbed both “central purpose” and “core purpose”.
194. Id. at 995-99. The most notable examples have involved labor relations, because federal agencies collect information from employers about labor union membership, and this is considered valuable information by other unions (for recruitment) and supporters of unions (to investigate employer compliance with labor laws). This has resulted in an increase in FOIA requests for such information, many of which are denied by agencies under the FOIA privacy exemptions. See id. at 997-98. The “central purpose” or “core purpose” test for the privacy interest in the requested documents has been conducted in Fed. Labor Relations Auth. v. Dep’t of Defense, 997 F. 2d 545, 548 (11th Cir. 1992); Fed. Labor Relations Auth. v. Dep’t of the Navy, 975 F.2d 348, 354-55 (7th Cir. 1992); Fed. Labor Relations Auth. v. Dep’t of Veterans Affairs, 958 F.2d 503, 511-12 (2nd Cir. 1992); Fed. Labor Relations Auth. v. Dep’t of the Navy, 941 F.2d 49, 56-57 (1st Cir. 1991); Reed v. Nat’l Labor Relations Bd., 927 F. 2d 1249, 1251 (D.C. Cir. 1991); Fed. Labor Relations Auth. v. Dep’t of the Treasury, 884 F.2d 1446, 1453 (D.C. Cir. 1989). The central purpose test, which apparently was meant to be applied only to privacy disputes per Reporters Committee, has also been applied by courts in a few FOIA dispute cases that involved exemptions other that the two concerning privacy. For an analysis, see Christopher P. Beall, The Exaltation of Privacy Doctrines over Public Information Law, 45 DUKE L. J. 1249, 1273 (1996).
195. See REPORTERS COMMITTEE, supra note 166, at 2-3. The organization also criticizes the Supreme Court for instituting a “narrow and crabbed” interpretation of congressional intent toward the FOIA, without input from the legislative or executive branches. Id. at 10.
196. Dep’t of Defense v. Fed. Labor Relations Authority, 510 U.S. 487, 505 (1994) (Ginsburg, J., concurring in the judgment).
197. See, e.g., Hoefges, Halstuk & Chamberlin, supra note 9, at 23; Halstuk & Davis, supra note 163, at 995.
198. See Robert Gellman, Public Records – Access, Privacy, and Public Policy: ADiscussion Paper, 12 GOVT. INFO. Q. 391, 391 (1995).
199. By 2000, Exemption 6 had become by far the most commonly used exemption at federal agencies to justify FOIA denials. See DEPARTMENT OF JUSTICE, FREEDOM OF INFORMATION ACT (FOIA) REPORT FOR FISCAL YEAR 2000, http://www.justice.gov/oip/annual report/2000/00contents.htm (last visited Jan. 17, 2015), at sec. V. In 2013, the most recent year forwhich figures were available at the time of writing, Exemption 6was the second-most used exemption, having been surpassed by the other privacy-related exemption, Exemption 7(C). See DEPARTMENT OF JUSTICE, FREEDOM OF INFORMATION ACT ANNUAL REPORT: FISCAL YEAR 2013, http://www.justice.gov/sites/default/files/oip/legacy/2014/07/23/oip-foia-fy13.pdf (last visited Jan. 17, 2015), at sec. V.B.(3).
200. See supra notes 130-31 and accompanying text.
201. See Hoefges, Halstuk & Chamberlin, supra note 9, at 25, 57
202. Dep’t of State v. Ray, 502 U.S. 164, 179 (1991). This case involved information about Haitian refugees who had fled to the United States in the 1980s, a period of great strife in Haiti, only to be deported back to their home country. Supporters of these persons feared that they would be persecuted by the Haitian regime upon their return, and sought documents containing the names of deportees and related information from the Department of State. The agency denied the request under FOIA Exemption 6 because individual persons were named in the documents, and disclosure would apparently violate their privacy.
203. Id. at 178.
204. Dep’t of Defense v. Fed. Labor Relations Auth., 510 U.S. 487, 497 (1994) (emphasis added; some internal quotation marks omitted). This case involved a FOIA request by a labor union for documents containing the addresses, phone numbers, and like information of union members, to be used in organizing activities. The request was denied per FOIA Exemption 6. The quoted statement was repeated by the Supreme Court in 1997, with that ruling italicizing the word “only” for emphasis. Bibles v. Oregon Natural Desert Ass’n, 519 U.S. 355, 355-56 (1997). In that case, an environmental advocacy group requested documents containing the addresses of persons who received a Bureau of Land Management newsletter. This request was also rejected per FOIA Exemption 6.
205. See Hoefges, Halstuk & Chamberlin, supra note 9, at 39. That statement was made in a 2003 article; more recent research has found that the trend is holding true with a few very minor exceptions. See Halstuk, Cramer & Todd, Tipping the Scales, supra note 9, at 24-26. Supreme Court Justice Sandra Day O’Connor, in a concurring opinion to Department of Defense v. Federal Labor Relations Authority, lamented that the central purpose doctrine presented a “restrictive definition” of the public interest in access to documents, which does not appear in the previous legislative history of the FOIA. Nonetheless, O’Connor concurred with its use in the instant case and concluded rather weakly that Congress could amend the FOIA if it disagreed with the effects of the Reporters Committee ruling. 510 U.S. 487, 505, 508-09 (1994) (O’Connor, J., concurring).
206. See Hoefges, Halstuk & Chamberlin, supra note 9, at 55. See also S. REP. NO. 89-813 (1965), at 3.
207. Id. at 63.
208. See supra notes 155-56 and accompanying text.
209. 842 F. Supp. 2d 65, 70 (D.D.C. 2012).
210. 5 U.S.C. § 552(b)(4) (2002).
211. The documents relevant to Exemption 4 are S. REP. NO. 89-813 (1965); H.R. REP. NO. 89-1497 (1966); H.R. REP. NO. 95-1382 (1978).
212. See supra notes 130-31 and accompanying text.
213. 703 F.3d 724, 731 (4th Cir. 2013).
214. For historical coverage of how this basic philosophy influenced the Freedom of Information Act and similar laws, see Ann Florini, Whither Transparency?, in THE RIGHT TO KNOW: TRANSPARENCY IN AN OPEN WORLD, 337, 342 (Ann Florini ed., 2007); Joseph E. Stiglitz, Foreword, in THE RIGHT TO KNOW, id.
215. While this is an unresolved issue in American law, other countries (particularly in Europe) are adding the acts of private businesses to their transparency and anticorruption laws. See generally Ann Florini, The Battle over Transparency, in THE RIGHT TO KNOW, supra note 219.
216. 48 C.F.R. § 52.203-13(b)(3)(i) (2012). This is within a group of rules known as Federal Acquisition Regulations, often abbreviated as “FAR.”
217. See generally Hoefges, Halstuk & Chamberlin, supra note 9; Halstuk, Cramer & Todd, Tipping the Scales, supra note 9; Halstuk & Davis, supra note 163.
218. 48 § C.F.R. 52.203-13(b)(3)(ii) (2012).
219. See supra notes 155-56 and accompanying text.
220. See supra note 146 and accompanying text.
221. Skybridge, 842 F. Supp. 2d 65, 80-81 (D.D.C. 2012).
222. Id. at 81-82.
223. 47 C.F.R. § 54.713 (2013).
224. See supra note 222 and accompanying text.
225. See supra note 151 and accompanying text.
226. 842 F. Supp. 2d at 83-84.
227. See generally Hoefges, Halstuk & Chamberlin, supra note 9; Halstuk, Cramer & Todd, supra note 163; Halstuk & Davis, supra note 163.
228. 842 F. Supp. 2d at 70. It should be noted that Skybridge eventually received some documents with this type of information redacted, but only after the FCC changed its mind about its original denial decision, and after the court battle had begun. Id. at 74.
229. 489 U.S. 749, 774 (1989).
230. See supra note 198 and accompanying text.
231. 842 F. Supp. 2d at 83. Curiously, the district court did not cite the original Supreme Court precedent (Reporters Committee) but instead cited a lower court ruling in which that precedent appeared, Consumers’ Checkbook Center for the Study of Services v. Department of Health & Human Services, 554 F.3d 1046, 1051 (D.C. Cir. 2009). That ruling used the term “core purpose” (of the FOIA) which is equivalent to the term “central purpose” as used in Reporters Committee.
232. For trade secrets, see supra notes 138, 216 and accompanying text. For privacy, see supra notes 161-62 and accompanying text.
233. See supra notes 197-98 and accompanying text.