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Electronic Frontier Foundation Request for Inspectrion of Records

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Released: October 20, 2011

Federal Communications Commission

FCC 11-156

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

ELECTRONIC FRONTIER FOUNDATION
)
FOIA Control Nos. 2010-590 and 2011-
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078
On Request for Inspection of Records
)
)

MEMORANDUM OPINION AND ORDER

Adopted: October 19, 2011

Released: October 20, 2011

By the Commission:

I.

INTRODUCTION

1. By this memorandum opinion and order, we deny two applications for review (AFRs)
filed by Electronic Frontier Foundation (EFF).1 EFF seeks review of decisions by the Public
Safety and Homeland Security Bureau (PSHSB) and the Office of General Counsel (OGC)2
responding to its Freedom of Information Act (FOIA) requests for records related to the
Communications Assistance for Law Enforcement Act (CALEA). For the reasons explained
below, we deny the AFRs.

II.

BACKGROUND

2.

FOIA No. 2010-590

. EFF's first FOIA request sought "all agency records created on
or after January 1, 2006 (including but not limited to, electronic records) discussing, concerning,
or reflecting: 1) any communications or discussions with operators of communications systems
or networks, or with equipment manufacturers and vendors, concerning development and needs
related to electronic communications surveillance enabling technology; 2) any communications
or discussions with foreign government representatives or trade groups about trade restrictions or
import or export controls related to electronic communications surveillance-enabling technology;
[and] 3) any briefings, discussions, or other exchanges between FBI officials and members of the
Senate or House of Representatives concerning implementing a requirement for electronic
communications surveillance-enabling technology, including but not limited to, proposed
amendments to the Communications Assistance to Law Enforcement Act (CALEA)."3


1 See Freedom of Information Act Appeal, filed November 23, 2010, by EFF (AFR 1); Freedom of Information Act
Appeal, filed January 28, 2011 (AFR 2).
2 See Letter from Thomas J. Beers, Chief, Policy Division, PSHSB to EFF (Nov. 10, 2010) (Decision 1); Letter from
Joel Kaufman, Associate General Counsel and Chief, Administrative Law Division, OGC to EFF (Dec. 28, 2010)
(Decision 2).
3 See Letter from Jennifer Lynch, Staff Attorney to FOIA Officer (Sept. 28, 2010) (FOIA No. 2010-590).

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FCC 11-156

3.
The request was assigned to PSHSB, the Bureau responsible for developing,
recommending, and administering the agency's policies pertaining to public safety
communications issues, including those pertaining to CALEA. PSHSB conducted a search of its
files for responsive materials. In addition, PSHSB coordinated with OGC, the Office of
Engineering and Technology (OET), and the Wireline Competition Bureau (WCB) and asked
those offices to search their files for responsive materials.
4.
In response to the FOIA Request, PSHSB located and provided EFF with thirteen
pages of e-mails from an industry representative discussing CALEA compliance standards.4
PSHSB redacted a personal telephone number that was unrelated to the subject of the request,
and therefore was not responsive.5 PSHSB explained that it "located no records discussing,
concerning or reflecting any communications or discussions with foreign government
representatives or trade groups about trade restrictions or import or export controls related to
electronic communications surveillance-enabling technology."6 PSHSB further explained that it
"located no records discussing, concerning or reflecting any briefings, discussions or other
exchanges `between FBI officials and the Senate or House of Representatives' concerning
implementing a requirement for electronic communications surveillance-enabling technology,
including but not limited to, proposed amendments to the Communications Assistance to Law
Enforcement Act (CALEA)."7
5.

FOIA No. 2011-078

. EFF's second FOIA request sought "all agency records
created on or after January 1, 2006 (including but not limited to, electronic records) discussing,
concerning, or reflecting any briefings, discussions, or other exchanges between FCC officials
and members of the Senate or House of Representatives or their staff concerning implementing a
requirement for electronic communications surveillance-enabling technology, including, but not
limited to, proposed amendments to . . . CALEA."8
6.
OGC conducted a search of its files for responsive materials. It also asked
PSHSB and the Office of Legislative Affairs (OLA) to search their files for responsive materials.
OGC provided EFF with several unredacted copies of letters and e-mails from 2006 and 2007
between members of Congress, their constituents, and the FCC.9

III.

APPLICATIONS FOR REVIEW

7.
EFF's AFRs essentially ask the agency to conduct repetitive searches of
documents responsive to the requests in FOIAs 2010-590 and 2011-078, even though no such
documents were located during earlier searches by PSHSB, OGC, OLA, OET and WCB.
Ultimately, EFF's AFRs rest on the unsupported assertion that the "FCC has not conducted a


4 See Decision 1.
5 Id. EFF does not appeal this portion of Decision 1.
6 Id. (discussing Item 2 of EFF's first FOIA request).
7 Id. (discussing Item 3 of EFF's first FOIA request).
8 See Letter from Jennifer Lynch, Staff Attorney, EFF to FOIA Officer (Nov. 23, 2010) (FOIA No. 2011-078). The
request essentially paralleled Item 3 of FOIA Request No. 2010-590 but replaced "FBI" with "FCC."
9 See Decision 2; AFR 2.
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FCC 11-156

reasonable search of its records," and EFF's speculation that there are more recent responsive
agency records than those released.10

IV.

DISCUSSION

8.
We deny EFF's AFRs. The documents disclosed to EFF represent all of the
responsive records located by PSHSB, OGC, OLA, OET and WCB pursuant to searches of their
files that were reasonably calculated to uncover all relevant documents. EFF has presented no
specific reason to doubt the adequacy of these searches, to require further searches, or to believe
that other responsive (and non-privileged) documents exist that were not previously produced.
EFF cites Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999), for the
proposition that the FCC must show that it made a good faith effort to conduct a search for the
requested records and cannot limit its search to only one or more places if there are additional
sources that are likely to yield the information requested.11 Under the FOIA, an agency must
conduct a search "reasonably calculated to uncover all relevant documents."12 The
reasonableness of an agency's search depends upon the facts of each case.13 Specifically, the
adequacy of a search under the FOIA is determined by a test of reasonableness,14 which depends,
in part, on how the search was conducted in light of the scope of the request15 and the requester's
description of the records sought.16 The mere inability to locate requested documents does not
render a search inadequate.17 Moreover, the adequacy of a FOIA search is generally not
determined by the fruits of the search, but rather by the appropriateness of the methods used to
carry out the search.18
9.
Here, the five FCC Bureaus and Offices likely to have any responsive materials
(PSHSB, OGC, OLA, OET and WCB) searched their files pertaining to electronic
communications surveillance-enabling technology and proposed amendments to CALEA, and
produced to EFF all records they located that were responsive to EFF's request. We are satisfied
that PSHSB, OGC, OLA, OET and WCB conducted diligent searches for relevant information in
their offices and talked to relevant personnel in an effort to discover whether responsive
materials existed and, if so, where they could be found. These searches were "reasonably


10 See AFR1 at 1; AFR 2 at 1.
11 See AFR1 at 1; AFR 2 at 1.
12 See Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983); Campbell v. U. S. Dep't of Justice,
164 F.3d 20, 27 (D.C. Cir. 1998) (noting that an agency must search "using methods which can be reasonably
expected to produce the information requested") (quoting Oglesby v. U. S. Dep't of the Army, 920 F.2d 57, 68 (D.C.
Cir. 1990)).
13 See Weisberg v. U.S. Dep't of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984).
14 See Weisberg, 705 F.2d at 1351.
15 See, e.g., Meeropol v. Meese, 790 F.2d 942, 956 (D.C. Cir. 1986) ("[A] search need not be perfect, only adequate,
and adequacy is measured by the reasonableness of the effort in light of the specific request.").
16 See 5 U.S.C. 552(a)(3)(A) (requiring that a FOIA request "reasonably describe[] . . . records [sought]").
17 See Iturralde v. Comptroller of the Currency, 315 F.3d 311, 315 (D.C. Cir. 2003).
18 Id.
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FCC 11-156

calculated to uncover all relevant documents,"19 and thus were adequate to satisfy the agency's
obligation under FOIA.
10.
EFF's AFRs are premised, in part, on its speculation that because the FCC is
charged with implementing CALEA compliance,20 further records must exist.21 Additionally,
EFF asserts that the FCC "has likely been involved in the discussions between the White House,
several federal agencies, and members of Congress regarding updating the statute."22 EFF cites
several articles that discuss a task force, including officials from the Justice and Commerce
Departments, the FBI, the National Security Agency, the White House and other agencies,
recently working on draft legislation."23 Those articles, however, do not suggest FCC
involvement in the task force. We find that the Commission's staff discharged their duty under
the FOIA by conducting a thorough and reasonable search of its files related to EFF's two FOIA
requests.

V.

ORDERING CLAUSES

11.
ACCORDINGLY, IT IS ORDERED that the applications for review filed by
Electronic Frontier Foundation ARE DENIED. EFF may seek judicial review of this action,
pursuant to 5 U.S.C. 552(a)(4)(B).24


19 See Weisberg, 705 F.2d at 1351.
20 Congress enacted CALEA in 1994 in response to concerns that emerging technologies such as digital and wireless
communications were making it increasingly difficult for law enforcement agencies to carry out authorized
surveillance. See Pub. L. No. 103-414, 108 Stat. 4279 (1994), codified, as amended, at 47 U.S.C. 1001 et seq.
Under the statute, the industry is generally responsible for setting standards and solutions in consultation with the
Attorney General and other law enforcement agencies. See 47 U.S.C. 1006(a). Unless a party files a petition, the
FCC does not become involved in the process of developing CALEA compliance standards. See 47 U.S.C.
1006(b).
21 See AFR1 at 1; AFR2 at 1.
22 Id.
23Id. (citing e.g., Officials Push to Bolster Law on Wiretapping, available at
http://www.nytimes.com/2010/10/19/us/19wiretap.html; U.S. Tries to Make It Easier to Wiretap the Internet,
available at http://www.nytimes.come/2010/09/27/us/27wiretap.html); AFR1 at 1; AFR2 at 1; FOIA Request No.
2010-590 at 1; FOIA Request No. 2011-078 at 1.
24 We note that as part of the Open Government Act of 2007, the Office of Government Information Services
(OGIS) was created to offer mediation services to resolve disputes between FOIA requesters and Federal agencies as
a non-exclusive alternative to litigation. Using OGIS services does not affect EFF's right to pursue litigation. EFF
may contact OGIS in any of the following ways:
Office of Government Information Services
National Archives and Records Administration
Room 2510
8601 Adelphi Road
College Park, MD 20740-6001
E-mail: ogis@nara.gov
Telephone: 301-837-1996
Facsimile: 301-837-0348
Toll-free: 1-877-684-6448.
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FCC 11-156

12.
The officials responsible for this action are the following: Chairman Genachowski and
Commissioners Copps, McDowell, and Clyburn.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
5

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