Comparative Administrative Law Blog

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March 2011 - Posts

[Cases] The Conseil Constitutionnel on the limits of the privatization of government functions (By guest blogger Thomas Perroud)

It is well-established law in France since at least 1932 that a public authority cannot delegate to private bodies core public functions, such as security for example. The Constitutional Council recently reiterated such a prohibition against Parliament that wanted to pass a bill on videotaping. The bill authorized local government to delegate this function to private entities.

In its decision (Conseil constitutionnel, 10 mars 2011, Loi d'orientation et de programmation pour la performance de la sécurité intérieure, n° 2011-625 DC, available here), the Constitutional Council reiterated the prohibition, holding that:

«Whereas by authorizing any corporate body to put in work surveillance devices beyond the "immediate" accesses of its buildings and installations and by entrusting to private operators the responsibility to exploit systems of videotaping on the public highway and to view the images on behalf of public bodies, the disputed provisions make it possible to invest private individuals with missions of general surveillance of the public highway ("voie publique"); that each one of these provisions makes thus possible the delegation to a private individual of general administrative police powers inherent to the exercise of the "public powers" ("force publique") necessary to the guarantee of rights; that, consequently, [this provision] must be declared contrary with the Constitution». 

To understand fully this judgment one has to consider article 12 of the Declaration of human and civic rights of 26 august 1789 that provides: «To guarantee the Rights of Man and of the Citizen a public force is necessary; this force is therefore established for the benefit of all, and not for the particular use of those to whom it is entrusted». This public force cannot therefore be delegated to private entities.

This is just an application of old case-law. On 17 June 1932, in the case «Ville de Castelnaudary» (available here), the Conseil d'Etat held that:

«Whereas the deliberation quashed by the attacked decree ratifying a subscription made to the "Fédération audoise chasse-pêche-agriculture" for the use of one of the particular guards of this Federation for the intermittent monitoring of the rural properties; that the service of the rural police, by its nature, could be entrusted only to agents placed under the direct authority of the public administration; that by entrusting this service to a federation of private owners, the town council of Castelnaudary exceeded its powers».

Thomas Perroud

[News] Statistics concerning judicial activity in the EU in 2010

The Court of Justice of the European Union issued today a press release (available here) with statistics regarding judicial activity in 2010.

According to this press release, in the entire history of the institution, there have never been so many cases brought before the three courts comprising the Court of Justice of the European Union: 1,406 cases were brought in 2010. That figure reflects the constant increase in the volume of European Union litigation. The document also draws our attention to another trend in 2010: the overall reduction in the duration of proceedings.

More specifically, in 2010 the Court of Justice had 631 new cases brought before it, which constitutes the highest number of cases brought in the Court's history. The situation is identical as regards references for a preliminary ruling. In 2010 the number of references for a preliminary ruling submitted was, for the second year in succession, the highest ever reached, and it exceeded the number in 2009 by 27.4% (385 cases in 2010 compared with 302 cases in 2009). The Court completed 574 cases in 2010, a slight decrease compared with the previous year (588 cases completed in 2009). As far as the duration of proceedings is concerned, the statistics show that in the case of references for a preliminary ruling, the average duration amounted to 16.1 months. A comparative analysis covering the entire period for which the Court has reliable statistical data shows that the average time taken to deal with references for a preliminary ruling reached its shortest in 2010.

With respect to the General Court, the press release highlights the large increase in the number of new cases brought, rising from 568 (in 2009) to 636 (in 2010), a level never reached before. The General Court completed 527 cases; this was, nevertheless, not sufficient to contain the increase in pending cases, which numbered 1,300 as of 31 December 2010. However, the duration of proceedings was reduced by an average of 2.5 months (from 27.2 months in 2009 to 24.7 months in 2010).

 

[Cases] Corporations do not have "personal privacy" for the purposes of Exemption 7(C) of the U.S. Freedom of Information Act

Chief Justice Roberts delivered today the 8-0 decision of the Supreme Court in the case Federal Communications Commission v. AT&T (Justice Kagan took no part in the case). The Court held unanimously that the protection in FOIA against disclosure of law enforcement information on the ground that it would constitute an unwarranted invasion of personal privacy does not extend to corporations. The text of the opinion is available here

The Freedom of Information Act requires federal agencies to make records and documents publicly available upon request, subject to several statutory exemptions. Exemption 7(C) exempts "records or information compiled for law enforcement purposes" that "could reasonably be expected to constitute an unwarranted invasion of personal privacy."

AT&T participated in an FCC-administered program -the E-Rate (or Education-Rate) program- that was created to enhance access for schools and libraries to advanced telecommunications and information services. In August 2004, AT&T voluntarily reported to the FCC that it might have overcharged the Government for services it provided as part of the program. The FCC's Enforcement Bureau launched an investigation. As part of that investigation, AT&T provided the Bureau various documents. CompTel -"a trade association representing some of AT&T's competitors"- submitted a FOIA request seeking "‘[a]ll pleadings and correspondence'" in the Bureau's file on the AT&T investigation. The Bureau concluded that some of the information AT&T had provided should be protected from disclosure under FOIA Exemption 4, which relates to "trade secrets and commercial or financial information." The Bureau also decided to withhold other information under FOIA Exemption 7(C). The FCC agreed with the Bureau, but the Court of Appeals for the Third Circuit did not. The FCC petitioned the Supreme Court for review of the Third Circuit's decision and the Supreme Court today reversed.

AT&T argued that the word "personal" in Exemption 7(C) incorporates the statutory definition of "person," which includes corporations (the Administrative Procedure Act, §551(2), defines "person" to include "an individual, partnership, corporation, association, or public or private organization other than an agency.") However, the Court explained that adjectives do not always reflect the meaning of corresponding nouns. "Person" is a defined term in the statute; "personal" is not. When a statute does not define a term, the Court typically "give[s] the phrase its ordinary meaning" and "personal" ordinarily refers to individuals. In fact, "personal" is often used to mean precisely the opposite of business-related. In the words of Chief Justice Roberts, "certainly, if the chief executive officer of a corporation approached the chief financial officer and said, ‘I have something personal to tell you,' we would not assume the CEO was about to discuss company business."

According to the Court, the meaning of "personal privacy" in Exemption 7(C) is further clarified by two pre-existing FOIA exemptions. Exemption 6, which Congress enacted eight years before Exemption 7(C), covers "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." The Court has regularly referred to Exemption 6 as involving an "individual's right of privacy." In contrast, FOIA Exemption 4, which protects -as already noted- "trade secrets" clearly applies to corporations. So, writes the Chief Justice, at the time Congress enacted Exemption 7(C), it had in place an exemption that plainly covered a corporation's commercial and financial information, and another that we have described as relating to "individuals." The language of Exemption 7(C) tracks the latter.

According to a piece that appeared in today's Washington Post (available here), "the outcome was notable for its unanimity, especially in view of recent criticism from liberal interest groups that the court tilts too far in favor of business."

As Chief Justice Roberts concluded, "[w]e trust that AT&T will not take it personally."