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COMPTEL Request for Inspection of Records

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Released: June 19, 2012

Federal Communications Commission

FCC 12-64

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

COMPTEL
)
FOIA Control No. 2007-265
)
Request for Inspection of Records
)

MEMORANDUM OPINION AND ORDER

Adopted: June 18, 2012

Released: June 19, 2012

By the Commission:
1.
By this memorandum opinion and order, we grant in part and deny in part an application
for review filed by CompTel on November 9, 2011 (AFR). CompTel seeks review of a decision of the
Enforcement Bureau (EB) that granted in part and denied in part a Freedom of Information Act (FOIA)
request by CompTel.1 On April 16, 2007, CompTel requested:
[a]ll internal FCC emails, memoranda, and other strictly internal documents from FCC
Case file no. EB-04-IH-0342 referenced in the Supplemental Declaration of Judy
Lancaster filed in the United States District Court for the District of Columbia in Civil
Action 06-1718-HHK on April 13, 2007. COMPTEL also requests all correspondence
with any third party contained in FCC Case file no. EB-04-IH-0342.2
2.
In responding to CompTel’s FOIA request, EB ruled that it would disclose 193 pages of
responsive documents, but redact portions that were exempt from disclosure under FOIA Exemptions 4,
5, 6, and 7(C).3 As discussed below, we find that EB was correct in determining it should disclose non-
exempt information in the documents, and in declining to disclose information protected from disclosure
in accord with the FOIA. We also find that some material EB withheld should be disclosed as described
below. We otherwise deny the application for review.4

I.

BACKGROUND

3.
The procedural posture in this matter is complicated. On December 16, 2004, EB issued
a consent decree terminating its investigation into the compliance of SBC Communications, Inc. (SBC),
now named AT&T Inc. (AT&T), with section 254 of the Communications Act, as amended (the Act), and


1 See Letter from Judy Lancaster, EB, to Mary C. Albert, CompTel, and Teri Hoskins, AT&T (Nov. 1, 2011) (2011
FOIA Decision
).
2 E-FOIA request from Jonathan Lee/COMPTEL (Apr. 16, 2007).
3 2011 FOIA Decision, citing 5 U.S.C.A. §§ 552(b)(4), (5), (6) and (7)(C).
4 Some of the documents provided to CompTel contained erroneous redactions. Specifically, on certain documents
the names of certain FCC staff and certain factual information identifying a related and now dated investigation
were to have been disclosed but were not released as a result of a processing error by staff making the redactions.
Corrected documents will be provided to CompTel.

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the Commission’s implementing rules.5 CompTel filed a FOIA request on April 4, 2005, seeking “[a]ll
pleadings and correspondence contained in File No. EB-04-IH-0342 [i.e., the investigation of SBC].”6 In
opposing release of the requested documents, SBC for the first time requested confidential treatment of its
submissions in that investigation.7
4.
EB granted in part and denied in part SBC’s request for confidential treatment, and,
accordingly, granted in part and denied in part CompTel’s 2005 FOIA request.8 EB determined that
certain information in SBC’s submissions should be treated as confidential, including “costs and pricing
data, its billing and payment dates, and identifying information of SBC’s staff, contractors, and the
representatives of its contractors and customers.” According to EB, such information, if released, was
“likely to substantially harm SBC’s competitive position,” and was therefore exempt from disclosure
under FOIA Exemption 4.9 EB also determined that this information was not in the public domain.10 In
addition, EB determined that the names of individuals identified in SBC’s submission should be withheld
from release to protect personal privacy under FOIA Exemptions 6 and 7(C).11 EB also ruled that SBC
itself, as a corporate entity, did not possess personal privacy interests protected under the FOIA.12
Finally, pursuant to Exemption 5, EB found it should withhold from release drafts of EB pleadings and
correspondence, and internal memoranda and e-mails discussing the SBC investigation, which EB
determined would disclose the Commission’s deliberative process.13 Both parties filed applications for
review14 of EB’s decisions before any responsive materials were released.15
5.
On October 5, 2006, CompTel filed a civil action in the United States District Court for
the District of Columbia, seeking a judicial order compelling production of the records withheld by EB.16


5 SBC Communications Inc., Order, 19 FCC Rcd 24014 (Enf. Bur. 2004).
6 E-FOIA request from Mary C. Albert, CompTel/ALTS (Apr. 4, 2005).
7 Letter from Jim Lamoureux, SBC Services, Inc. to Judy Lancaster, EB (May 27, 2005). CompTel opposed SBC’s
request for confidentiality. Letter from Mary C. Albert, CompTel, to Judy Lancaster, EB (Jun. 28, 2005).
8 Letter from William H. Davenport, EB to Jim Lamoureux, SBC Services, Inc. and Mary C. Albert, CompTel (Aug.
5, 2005) (2005 FOIA Decision).
9 2005 FOIA Decision at 5. See 5 U.S.C. § 552(b)(4). Exemption 4 covers “trade secrets and commercial or
financial information obtained from a person and privileged or confidential.”
10 2005 FOIA Decision at 5. Specifically, EB found that 47 C.F.R. § 54.501(d)(3), which states that service
providers’ records of rates charged and discounts allowed shall be made available for public inspection, did not
require the disclosure of all pricing data in SBC’s submissions.
11 2005 FOIA Decision at 5-6, citing 5 U.S.C. §§ 552(b)(7)(C) (“records compiled for law enforcement purposes but
only to the extent . . . [that] could reasonably be expected to constitute an unwarranted invasion of personal
privacy”) and 552(b)(6) (“personnel and medical and similar files the disclosure of which would constitute a clearly
unwarranted invasion of personal privacy”).
12 2005 FOIA Decision at 6.
13 Id. at 6, citing 5 U.S.C. § 552(b)(5) (“inter-agency or intra-agency memorandums or letters which would not be
available by law to a party other than an agency in litigation with the agency”).
14 Letter from Mary C. Albert to Samuel Feder (Sept. 6, 2005); Letter from Jim Lamoureux, SBC Services, Inc., to
Samuel Feder, [then] Acting General Counsel (Aug. 19, 2005).
15 See 47 C.F.R. §§ 0.459(g), 0.461(i)(4) & (j).
16 CompTel v. FCC, Civil Action 06-01718 (HHK) (D.D.C. filed Oct. 5, 2006). The FOIA permits such actions
where the agency does not act on a FOIA request or appeal within the statutory time period. See 5 U.S.C. §
552(a)(6)(C)(i)(agency’s failure to comply with statutory time period deemed to exhaust administrative remedies).
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AT&T intervened in CompTel’s action to argue a “reverse FOIA” claim. In the summary judgment
pleading cycle, CompTel disputed the government’s position that CompTel had agreed with EB to limit
the scope of its 2005 FOIA request to exclude certain classes of internal and third party communications.
In order to address any argument that it had failed to seek the records at issue, CompTel filed another
FOIA request with the Commission in 2007 (which is the FOIA request that is the subject of the AFR we
address in this Order).17 On March 5, 2008, the court stayed the case.18 The court concluded that it could
not address AT&T’s “reverse FOIA” claim that certain records at issue should be withheld from
disclosure because AT&T’s claim could only be reviewed pursuant to the Administrative Procedure Act
after final Commission action.19 The court concluded further that the interests of judicial economy and
efficiency would be served by staying CompTel’s action until the Commission ruled on AT&T’s
administrative appeal.
6.
On September 9, 2008, the Commission denied the Application for Review that AT&T
had filed to oppose release of information that EB had determined to disclose. The Commission rejected
AT&T’s argument that it should withhold all of the documents SBC had submitted in response to EB’s
inquiry because AT&T as a corporate entity had a personal privacy interest protected under the FOIA.20
AT&T sought review of the Commission’s decision in the United States Court of Appeals for the Third
Circuit, which granted AT&T’s petition and remanded the matter back to the Commission.21 The
Commission sought review of the Third Circuit’s decision in the Supreme Court, which granted certiorari.
On March 1, 2011, the Supreme Court agreed with the Commission that corporations do not have
personal privacy interests for purposes of FOIA.22 On June 17, 2011, the District Court lifted its stay of
the related proceedings before it at the request of CompTel.23
7.
Because CompTel’s 2007 FOIA request implicated the same claims of personal privacy
that were being disputed before the full Commission, the Third Circuit, and the Supreme Court, EB
responded to that request after the Supreme Court’s decision, on November 1, 2011. In its decision, EB
ruled that it would disclose to CompTel 193 pages of responsive documents, but redacted portions that
were exempt from disclosure under FOIA Exemptions 4 (protecting sensitive commercial information), 5
(protecting deliberative process material), 6 (protecting personal privacy interests), and 7(C) (providing
heightened protection for personal privacy interests in law enforcement records).24
8.
On November 9, 2011, CompTel filed the instant AFR challenging EB’s 2011 FOIA
Decision. CompTel argues that EB erred in failing to provide CompTel with a Vaughn Index of
information withheld.25 CompTel also argues that all emails and documents exchanged between EB and
SBC/AT&T must be produced because they were not kept solely within the Commission and thus cannot
be protected by FOIA Exemption 5; that drafts of documents cannot be withheld pursuant to Exemption 5
because EB did not demonstrate to CompTel that such documents were kept within the Commission; that


17 AFR at 4.
18 CompTel v. FCC, Civil Action 06-01718 (HHK) (D.D.C. Mar. 5, 2008).
19 See generally Chrysler Corp. v. Brown, 441 U.S. 281 (1979) (discussing reverse FOIA requests).
20 SBC Communications, Inc., Memorandum Opinion and Order, 23 FCC Rcd 13704 (2008).
21 AT&T Inc. v. FCC, 582 F.3d 490 (3d Cir. 2009), rev’d, 131 S.Ct. 1177 (2011).
22 FCC v. AT&T Inc., 131 S.Ct. 1177 (2011).
23 CompTel v. FCC, Civil Action 06-01718 (HHK) (D.D.C. Jun. 17, 2011).
24 2011 FOIA Decision, citing 5 U.S.C.A. §§ 552(b)(4), (5), (6) and (7)(C).
25 AFR at 4.
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EB cannot withhold names of FCC or SBC/AT&T staff under Exemption 6 because EB does not explain
why it is not also withholding other FCC staff names; that EB cannot withhold the names of FCC or
SBC/AT&T staff from disclosure under Exemption 7(C) because the documents were not compiled for
law enforcement purposes and because EB did not establish why such disclosure would be an
unwarranted invasion of privacy; that EB cannot withhold SBC/AT&T staff names pursuant to
Exemption 4 because names do not constitute trade secrets or commercial information; and that EB
cannot withhold draft documents and correspondence between SBC/AT&T and EB under Exemption 4
because it would be irrational for EB to conclude that a company would provide sensitive trade secret or
confidential commercial information in settlement discussions or consent decrees. CompTel further
argues that EB did not demonstrate that it properly could withhold certain information from emails post-
dating the consent decree. Finally, CompTel argues that EB erred in withholding draft memoranda
discussing possible courses of action in another investigation and that EB must produce any segregable
factual information contained in those memoranda. AT&T filed a response to the AFR disagreeing with
CompTel’s claims but also arguing that the Commission should not rule on the merits of CompTel’s
appeal until the pending district court litigation regarding CompTel’s earlier FOIA request for related
material in the same case file is resolved.26

II.

DISCUSSION

9.
As an initial matter, we do not agree with AT&T that we should wait to address the
merits of CompTel’s challenge to EB’s initial determinations in response to CompTel’s 2007 FOIA
request until resolution of the litigation regarding CompTel’s 2005 FOIA request. To support its position
that we should delay ruling on this AFR until the district court has resolved the issues before it, AT&T
notes that CompTel has stated that its purposes in filing the FOIA request and the AFR at issue were
related to the on-going litigation involving its 2005 FOIA request. As discussed above, the Supreme
Court resolved the issue regarding disclosure that affected processing of both the 2005 and the 2007
FOIA requests. Accordingly, EB processed the 2007 request that is the subject of this AFR. The 2007
FOIA request is a properly filed request that is separate from the 2005 request for purposes of agency
processing of FOIA requests, even though the requestor is the same and has stated its purposes for filing
the 2007 request relate to that district court litigation. The identity and purpose of a FOIA requestor are
not relevant considerations in agency determinations to disclose or withhold information pursuant to a
properly filed FOIA request.27 Therefore, we will rule on the issues CompTel raises with respect to EB’s
initial determinations in response to the 2007 FOIA request. Accordingly, we now turn to the merits of
CompTel’s arguments.
10.
Vaughn Index. CompTel is wrong that EB erred by failing to provide CompTel with a
“Vaughn Index”28 of information withheld. A Vaughn Index is not required when an agency withholds
information in the FOIA context, and we do not customarily prepare one.29 An agency need only provide
“a sufficiently detailed description of what it is refusing to produce and why so that the requestor and the
court can have a fair idea what the agency is refusing to produce and why.”30 This may be accomplished


26 Letter from Geoffrey M. Klineberg, Counsel for AT&T, to Austin Schlick, General Counsel (Nov. 23, 2011).
27 Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 771 (1989); Swan v. SEC, 96 F.3d
498, 499-500 (D.C. Cir. 1996); Ebling v. Dep’t of Justice, 796 F.Supp.2d 52, 62-63 (D.D.C. 2011).
28 See Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973).
29 Bangoura v. Dep’t of the Army, 607 F.Supp.2d 134, 143-44, n.8 (“Defendant was under no obligation to provide
Plaintiff with a Vaughn Index before [the civil action was filed]”.) (D.D.C. 2009); Schwarz v. U.S. Dep’t of
Treasury
, 131 F. Supp.2d 142, 147 (D.D.C. 2000).
30 Wireless Consumer Alliance, 20 FCC Rcd at 3878, quoting Fiduccia v. U.S. Dep’t of Justice, 185 F.3d 1035, 1042
(9th Cir. 1999).
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without a detailed index of the records, as was done here. We find no error by EB in not providing
CompTel with a Vaughn Index.
11.
Exemption 6. FOIA Exemption 6 provides that agencies are to withhold information in
“personnel and medical files and similar files the disclosure of which would constitute a clearly
unwarranted invasion of personal privacy.”31 CompTel argues that EB erred in withholding identifying
information about certain FCC staff and SBC/AT&T staff under Exemption 6 because EB does not
explain why it disclosed certain names and not others and because EB does not explain how such
disclosure could be an unwarranted invasion of privacy. Neither of these arguments has merit. First, the
FOIA does not require that agencies provide requestors with justifications for decisions to release
information in response to their FOIA requests. Nor does the discretionary release of some material
create an obligation to release other material even assuming for the sake of argument it is of like nature.32
Moreover, EB was correct in concluding that the redacted information identifying certain individuals falls
within the scope of Exemption 6. Files “similar” to personnel and medical files are broadly defined for
purposes of Exemption 6,33 and investigative case files have been considered to be such “similar files”
from which names and other personally identifying information should be withheld.34 While Exemption
7(C) provides more explicit protection for personal information in the responsive documents because this
FOIA request involves investigative case files, EB is correct that this information is also protected under
Exemption 6.35 Here the names and information at issue that have been redacted identify private
individuals and government employees. While the personal privacy interest protected by FOIA is clearest
when individuals are targets, subjects or witnesses in investigations, disclosure of even innocent
association with an investigation into wrongdoing can subject an individual to annoyance, harassment, or
embarrassment by association.36 Furthermore, the individual’s protected privacy interest in his or her
own personal information exists even when the information “is not of an embarrassing or intimate
nature.”37 And though the more severe concerns such as physical harm or “the disclosure of particularly
embarrassing private details” that arise from associating individuals with criminal investigations may not


31 5 U.S.C. § 552(b)(6). The personal privacy interests of individuals are protected under FOIA Exemption 6 and
Exemption 7 (C). See FCC v. AT&T Inc., 113 S.Ct. at 1184-85. But, as the Supreme Court held in AT&T, the
reverse FOIA case described above, even though “person” is defined to include corporations, they do not have the
“personal” privacy interests of individuals that are protected under FOIA Exemption 7(C). Id. at 1185.
32 See, e.g., Williams & Connelly v. SEC, 662 F.3d 1240, 1245 (D.C. Cir. 2011); Mobil Oil Corp. v. EPA, 879 F.2d
698, 701 (9th Cir. 1989); Salisbury v. United States, 690 F.2d 966, 971 (D.C. Cir. 1982).
33 Dep’t of State v. Washington Post Co., 456 U.S. 595, 599-602 (1982) (holding Exemption 6 was not intended to
be limited to a “narrow class of files containing only a discrete kind of personal information” but rather was
intended to protect personal information in government records when disclosure was sought).
34 See, e.g., Lahr v. NTSB, et al, 569 F.3d 964, 973-979 (9th Cir. 2009) (Lahr) (finding redaction of the names of FBI
agents and witnesses in investigation files proper under Exemption 6); Wood v. FBI, 432 F.3d 78, 85-87 (2nd Cir.
2005) (holding names of government investigators and third parties as well as subjects of administrative
investigation may be withheld); Appleton v. FDA, 451 F.Supp. 2d 129, 145-46 (D.D.C. 2006) (Appleton) (upholding
redaction of the names of drug company employees and information identifying interviewees and other individuals
in investigation files pursuant to Exemption 6); Concepcion v. FBI, 606 F.Supp.2d 14, 35-39 (D.D.C. 2009)
(upholding redaction of the names of third parties in investigative files under Exemption 6).
35 Whether the information identifying a regulated company’s personnel and their assignments is commercially
sensitive and thus exempt from disclosure under FOIA Exemption 4 is a more difficult question, but because
Exemptions 6 and 7(C) clearly apply, it is not one we need to address in this instance.
36 See Lahr, 569 F.3d at 975-79 (holding Exemption 6 protected information identifying eyewitnesses and FBI
agents in records relating to investigation into airline crash).
37 Appleton, 451 F.Supp. 2d at 115.
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exist in the regulatory enforcement context, identifying individuals with an EB investigation still can lead
to unwanted exposure and contacts from third parties that would constitute clearly unwarranted invasions
of privacy.38
12.
Exemption 7(C). Exemption 7(C) provides for withholding “records compiled for law
enforcement purposes but only to the extent . . . [that disclosure] could reasonably be expected to
constitute an unwarranted invasion of personal privacy.”39 CompTel argues incorrectly that the
documents in question cannot be withheld under Exemption 7(C) because they were not compiled for law
enforcement purposes. CompTel specifically requested material from the case file for an EB
investigation into allegations that a company violated the Act and our rules. EB’s investigations can
result in enforcement actions by the Commission under the Act, including monetary forfeitures and
license revocations, and can be referred to the Commission’s Office of Inspector General and the
Department of Justice for other civil or criminal investigation and prosecution. Thus courts have found
that the case files of the Commission’s regulatory investigations, such as the one at hand, are compiled for
the purposes of law enforcement.40
13.
Under Exemption 7(C), the Commission will withhold information identifying
individuals if disclosure might result in an unwarranted invasion of personal privacy and the public
interest in the information does not outweigh that privacy interest.41 In applying this test, we look at the
privacy interests of those individuals who are company personnel and are subjects or witnesses in an
investigation or have work assignments relating to representing their company in the investigation. As
discussed above, these individuals have protected personal privacy interests under Exemptions 6 and 7(C)
that are implicated when they are associated with an EB investigation into corporate wrong-doing. The
privacy interests of these individuals are to be weighed against the knowledge about the workings of
government that may be gained from disclosure, not knowledge about the workings of a company or its
employees.42 Even if the privacy interests are more minimal for those who represent a company rather
than those who are identified as subjects or witnesses in an investigation, we see nothing in this case to
suggest that information identifying company personnel and their work assignments would illuminate
anything about the workings of the government. An individual employee of a regulated company has a
privacy interest of some degree in not having his or her employment and work assignments made public,
especially when that could associate the individual with an investigation into potential wrong-doing. As
the U.S. Court of Appeals for the D.C. Circuit has said, “even a modest privacy interest [] outweighs
nothing.”43 We therefore agree with EB that information from the case file identifying the company’s
employees can be protected under Exemption 7(C).
14.
Previously, however, EB publicly identified certain SBC/AT&T employees in the
consent decree and in its 2005 FOIA Decision.44 We find that withholding from the responsive
documents before us the information identifying the SBC/AT&T employees already publicly disclosed by


38 Lahr, 569 F.3d at 975-79.
39 5 U.S.C. § 552(b)(7)(C).
40 See Kay v. FCC, 867 F.Supp. 11, 17 (D.D.C. 1994); Kay v. FCC, 976 F.Supp. 23, 37 (D.D.C. 1997), aff’d per
curium
, 172 F. 3d 919 (D.C. Cir. 1998).
41 Nat’l Ass’n of Broadcasters, Memorandum Opinion and Order, 24 FCC Rcd 12320, 12326-27 (2009).
42 Nat’l Ass’n of Retired Fed. Employees v. Horner, 879 F.2d 873 (D.C. Cir. 1989).
43 Id. at 879.
44 We note that SBC/AT&T negotiated and signed the consent decree without objecting to the public disclosure of
the identifying information; similarly SBC/AT&T responded to the 2005 FOIA Decision but did not object to or
seek remediation of the public disclosure of its employees.
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EB will not protect their privacy and direct EB to disclose such information in the responsive documents.
The names of other SBC/AT&T employees may be withheld as discussed above.
15.
CompTel also argues EB erred in withholding the names of certain FCC staff. EB
intentionally withheld the names or other identifying information of staff level Commission employees in
the responsive documents under Exemptions 6 and 7(C), but intended to disclose the identifying
information for management level FCC staff.45 Government employees generally have limited privacy
interests in their government employment and their work assignments, but those interests are heightened
in law enforcement matters, as here, where Exemption 7(C) is applied. Courts have upheld redaction of
government employees’ names contained in law enforcement files when those employees are involved in
the conduct of the investigation.46 EB’s position that disclosure of Commission management level
employees is less likely to result an unwarranted invasion of privacy than disclosure of staff level
employees involved in an investigation is reasonable and accords with the decisions of courts that have
addressed the same issue under FOIA.47 Management level staff in EB, as elsewhere in the Commission,
are publicly identified as such on our website and in other publicly available documents. The connection
of any specific staff level employee to any one investigation, however, is not readily apparent. We find
that disclosure of such a connection in this case could reasonably be expected to cause an unwarranted
intrusion of personal privacy for staff level employees that outweighs the public interest in releasing their
names.48 We therefore uphold EB’s withholding of information identifying staff level employees, as
opposed to management level employees, with one exception. As with certain SBC/AT&T employees,
EB publicly disclosed the identity of a staff level employee involved in the conduct of the investigation in
the consent decree and in the 2005 FOIA Decision. We therefore find that withholding from the
responsive documents before us the name of that FCC staff level employee will not protect his privacy
and direct EB to disclose such information in the responsive documents. The names and identifying
information of other staff level employees may be withheld as discussed above.49
16.
Exemption 5. Exemption 5 protects “inter-agency or intra-agency memorandums or
letters which would not be available by law to a party other than an agency in litigation with the
agency.”50 CompTel objects to the withholding of information from certain documents that post-date the
consent decree in the underlying investigation because, it argues, EB “has failed to meet its burden of


45 As noted above, there were errors in final conforming redactions in the FOIA response provided to CompTel,
including mistaken redaction of some management level employees, which will be corrected.
46 See, e.g., Concepcion v. FBI, 606 F.Supp.2d at 38-39; Amusco v. Dep’t of Justice, 600 F.Supp.2d 78, 97, (D.D.C.
2009); Singh v. FBI, 574 F.Supp.2d 32, 48-49 (D.D.C. 2008).
47 See, e.g., Families for Freedom v. U.S. Customs & Border Protection, 2011 WL 6780896 at 10, ---- F.Supp.2d ---
(S.D.N.Y. 2011) (directing disclosure of the identities of “higher ranking officials such as chief of staff, deputy chief
of staff and division chief,” but permitting redaction for lower level staff involved in law enforcement activities).
48 Commission staff level employees in these situations often act as investigators and as support staff for
investigation functions.
49 CompTel also identifies as problematic the redactions in Document 30, a one-page email between Commission
and USAC staff regarding an analysis of rules. The body of the email was redacted and EB identified Exemptions 5,
6, and 7(C) on the redaction. CompTel correctly argues that an analysis of the rules could not reasonably be
expected to cause an unwarranted invasion of privacy. We reviewed the document. The body of the email
contained identifying information for the USAC staff member which is protected by Exemptions 6 and 7(C); the
remaining text of the email is the work product produced at the direction of the EB attorney in anticipation of
litigation and protected by Exemption 5. See, e.g., Judicial Watch v. Dep’t of Justice, 432 F.3d 366, 369 (D.C. Cir.
2005) (explaining that Exemption 5 incorporates the work product doctrine, which protects material prepared in
anticipation of litigation by a party or its attorney or agent).
50 5 U.S.C. § 552(b)(5).
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showing that the Exemption [5] does indeed protect” the information in certain documents that post-date
the consent decree and were provided in redacted form.51 Exemption 5 provides that deliberative pre-
decisional documents may be withheld from release.52 Responsive material that documents or explains a
past agency decision is not protected under Exemption 5; responsive material that post-dates a particular
decision, however, may be deliberative and pre-decisional as to other matters and thus protected under
Exemption 5.53 The documents at issue are emails between Commission staff and between Commission
staff and Department of Justice staff discussing issues relating to referral, sharing of documents, and
possible courses of action that can be pursued by either agency.54 We have reviewed the information
withheld. That information does not document or explain past Commission decisions, but instead
discusses issues relating to whether matters could be referred to, and associated documents shared with,
the Department of Justice; coordination with respect to other investigations and prosecutions involving
similar or related issues; possible courses of action that could be pursued; and related deliberative
observation and analysis.55 The material is deliberative and pre-decisional and thus squarely protected
from disclosure under Exemption 5.
17.
CompTel also argues that EB erred in withholding the information in certain documents,
such as drafts of the consent decree and emails exchanged with SBC/AT&T, because the information was
shared with SBC/AT&T and thus is not exempt under Exemption 5.56 CompTel states that the
Commission cannot justify EB’s redactions and withholding because these are “settlement” documents
and “[t]here is no settlement privilege under Exemption 5.”57 However, Commission precedent permits
the withholding of material relating to settlement discussions pursuant to Exemption 5.58 We see nothing
in the facts before us that would support reversing our precedent in this matter.


51 AFR at 9.
52 See, e.g., NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151 (1975)
53 See id. at 152-154; City of Va. Beach v. Dep’t of Commerce, 995 F.2d 1247, 1254-56 (4th Cir. 1993) (emphasizing
the importance of the context of documents for determining whether responsive material is deliberative and pre-
decisional even if it relates to and discusses past decisions or actions).
54 AFR at 9.
55 There is some additional factual information in the emails relating to another investigation that is now dated and
can be released. In addition, certain additional management level staff names also will be disclosed by EB’s
redaction corrections. The redacted substantive information, however, is deliberative and pre-decisional.
56 CompTel also argued that EB did not demonstrate that the documents withheld under Exemption 5 were kept
confidential. CompTel provides no evidence that any documents withheld were provided to anyone other than SBC.
Moreover, we see no indication that the documents withheld were shared with anyone outside the Commission
except for the documents exchanged with SBC in settlement discussions and one document exchanged between SBC
and EB under Exemption 5 that was not a “settlement” document. That latter document is a copy of a company
response to an EB Letter of Inquiry (LOI) with the handwritten notations of FCC staff. A “clean” copy of the LOI
response, without FCC staff annotations, was also in the file and was provided to CompTel in response to its 2005
FOIA request, redacted only for certain discrete commercial information protected under Exemption 4. Because
even the placement of redactions on the document could indicate the deliberative analysis of the staff, which is
protected under Exemption 5, we agree with EB that the document can be protected under Exemption 5 and the
information in it need not be segregated and redacted in order to provide the releasable information twice.
57 AFR at 7.
58 Nat’l Ass’n of Broadcasters, 24 FCC Rcd at 12321-22; Wireless Consumer Alliance, 20 FCC Rcd at 3888, n.55
(withholding draft consent decrees exchanged between the parties under both Exemptions 4 and 5 and noting the
recognition of a settlement privilege in civil litigation in Goodyear Tire & Rubber Co. v. Chiles Power Supply Inc.,
332 F.3d 976 (6th Cir. 2003)).
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18.
CompTel also objects to EB’s withholding copies of EB memoranda “summarizing
issues in another E-rate matter and discussing possible courses of action, with handwriting and edits.”59
CompTel argues, inter alia, that a summary of issues is likely to be factual rather than deliberative and
that any statements of facts in EB’s memoranda or elsewhere must be produced.60 We have reviewed the
memoranda. They constitute the work product of EB attorneys prepared in anticipation of the
administrative litigation that may ensue from enforcement investigations, as well as potential federal court
litigation challenging such enforcement actions. As the U.S. Court of Appeals for the D.C. Circuit has
found, the inclusion of factual material in attorney work product reflects the work product of selecting
relevant facts rendering the whole work product protected under the FOIA.61 EB was correct in
withholding the substantive portions of the memoranda in their entirety.
19.
Exemption 4. Exemption 4 covers “trade secrets and commercial or financial
information obtained from a person and privileged or confidential.”62 CompTel argues that information in
settlement documents and exchanges cannot be withheld under Exemption 4 because it would be
irrational for a company to provide sensitive trade secrets or confidential commercial information in
settlement discussions of consent decrees.63 The Commission previously has protected confidential
commercial information provided in settlement documents under Exemption 4.64 Here, EB withheld,
pursuant to Exemption 4 as well as Exemption 5, a copy of a draft consent decree with proposed edits by
SBC/AT&T and notations by FCC Staff, a draft compliance plan proffered by SBC, and portions of a
short related email. The final consent decree and compliance plan agreed to by both parties are publicly
available and not at issue here.65 The non-public drafts and associated email were submitted voluntarily
for the purpose of settling the Commission’s enforcement action.66 When addressing the coverage of
Exemption 4 for voluntarily submitted confidential information, we look at whether the material is of a
kind that would not customarily be released to the public.67 Material provided and exchanged in
settlement negotiations is not customarily released to the public by the provider or other parties.
Moreover, commercially sensitive information can be withheld under the FOIA even when it is
involuntarily submitted, if disclosure would impair the government’s ability to obtain such information in
the future or harm the competitive position of the submitting party.68 Disclosure of settlement discussion
material could harm the commercial interests of submitting parties and is very likely to impair the
Commission’s ability to carry out settlement negotiations efficiently, contrary to the public interest in
conserving scarce government resources and in encouraging settlement negotiations.69 Thus, the material


59 AFR at 11.
60 Id.
61 Judicial Watch v. Dep’t of Justice, 432 F.3d at 371.
62 5 U.S.C. § 552(b)(4).
63 AFR at 8.
64 See, e.g., Nat’l Ass’n of Broadcasters, 24 FCC Rcd at 12321-22; Wireless Consumer Alliance, 20 FCC Rcd at
3874.
65 See http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-04-3893A1.pdf and
http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-04-3893A2.pdf.
66 EB noted on the redacted documents that these settlement documents were also protected by Exemption 5.
67 See Critical Mass Energy Project v. NRC, 975 F.2d 871, 880 (D.C. Cir. 1992).
68 See Nat’l Parks & Conservation Ass’n v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974).
69 Accord M/A-Com Information Systems v. HHS, 656 F. Supp 691, 692-92 (D.D.C. 1986) (addressing settlement
negotiation information, including proposed compliance measures, and finding “it is in the public interest to
(continued …)
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FCC 12-64
at issue could be withheld even if it were deemed to be involuntarily submitted. We see no reason to set
aside EB’s determination to withhold these documents.
20.
Fee Issue. Finally, we address a related administrative matter. In its FOIA request,
CompTel committed to pay $100 for search, review and duplication costs and the parties did not
otherwise address the related fee.70 In the 2011 FOIA Decision, EB determined the FOIA fee in this
matter thus would be $100.71 On November 12, 2011, the Revenue & Receivables Operations Group of
the Commission’s Office of Managing Director invoiced CompTel for the fee as determined by EB on
November 1, 2011. On December 19, 2011, 48 days after the date of the fee determination, CompTel
sent a letter to the Revenue & Receivables Operations Group discussing CompTel’s view that EB should
have determined the fee to be $15.81 and enclosing a check in that amount. However, CompTel did not
appeal EB’s FOIA fee determination in the instant AFR, nor did it file an application for review on the fee
determination during the 30-day time period for appeal under Rule 0.461.72 Accordingly, any further
releases to CompTel pursuant to this order are stayed until CompTel pays the remainder of the $100
owed.73

III.

ORDERING CLAUSES

21.
IT IS ORDERED that CompTel’s application for review IS GRANTED to the extent
indicated above and is otherwise DENIED. If AT&T does not seek a judicial stay within ten (10)
working days of the date of release of this memorandum opinion and order, we direct EB to produce to
CompTel the corrected redacted records as modified above upon payment by CompTel of the FOIA fee it
owes. See 47 C.F.R. § 0.461(i)(4).
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
(continued from previous page)


encourage settlement negotiation in matters of this kind and it would impair the ability of [the agency] to carry out
its governmental duties if disclosure of this kind of material under FOIA were required. Thus, while the commercial
interest may be slight, it should be protected under the exemption.”).
70 E-FOIA request from Jonathan Lee/COMPTEL (Apr. 16, 2007).
71 2011 FOIA Decision at 2.
72 47 C.F.R. § 0.461(j) (“an application for review of an initial action on a request for inspection of records, a fee
determination (see § 0.467 through § 0.470), or a fee reduction or waiver decision (see § 0.470(e)) may be filed only
by the person who made the request. The application shall be filed within 30 calendar days after the date of the
written ruling by the custodian of records.”).
73 Although we do not rule on the merits of the arguments in CompTel’s December 19, 2011 letter to the Revenue &
Receivables Operations Group, given the independent procedural reasons for denying the requested relief, we note
that the Commission rejected a similar argument for fee discount when it was made by another applicant. See
Warren Havens, Jimmy Stobaugh, et al.
, Memorandum Opinion and Order, 24 FCC Rcd 12308, 12312, n.30 (2009)
(explaining the December 31, 2007 FOIA amendment on fees did not apply to fees for requests submitted before the
amendment became effective).
10

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