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Peter Pratt, StimulatingBroadband.com Requesting Inspection of Records

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Released: September 27, 2011

Federal Communications Commission

FCC 11-142

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

Peter J. Pratt,
)
FOIA Control No. 2011-084
StimulatingBroadband.com
)
)

On Request for Inspection of Records
)

MEMORANDUM OPINION AND ORDER

Adopted: September 26, 2011

Released: September 27, 2011

By the Commission:

I.

INTRODUCTION

1.
The Commission has before it an application for review (AFR) filed by Peter J. Pratt
seeking review of a decision of the Office of General Counsel (OGC) denying his Freedom of
Information Act (FOIA) request.1 Pratt's request sought a draft of the Commission's Open Internet
order that FCC staff circulated to the Commissioners on either Tuesday, November 30, 2010, or
Wednesday, December 1, 2010. We agree with OGC that the draft order is quintessentially the type of
deliberative document properly withheld under FOIA Exemption 5.2 We therefore deny the application
for review.

II.

BACKGROUND

2.
On December 3, 2010, Pratt filed a FOIA request seeking the draft of the Open Internet
decision then on circulation to the Commission.3 He noted the Chairman's discussion of the proposal on
circulation in a speech, and the strong public interest in the subject of the then-pending proposal.4 On
January 4, 2011, twelve days after the Commission released the Open Internet Order,5 OGC denied
Pratt's FOIA request based on the deliberative process privilege of FOIA Exemption 5.6
3.
On review, Pratt makes several arguments. He contends that FOIA Exemption 5 is not a
perpetual bar to the release of the circulated draft and that any deliberative process privilege the agency
may have had for the initial draft expired on December 21, 2010, when the Commission adopted the
rulemaking order.7 He asserts the draft initially circulated to the Commissioners is not privileged


1 Letter from Peter J. Pratt, StimulatingBroadband.com to FOIA Officer, FCC (Feb. 3, 2011) (AFR).
2 5 U.S.C. 552(b)(5).
3 FOIA Request of Peter J. Pratt, StimulatingBroadband.com (Dec. 3, 2010) (Request).
4 Id.
5 Preserving the Open Internet, 25 FCC Rcd 17905 (2010) (Open Internet Order).
6 Letter from Joel Kaufman, Associate General Counsel and Chief, Administrative Law Division, Office of General
Counsel to Peter J. Pratt, StimulatingBroadband.com (Jan. 4, 2011) (Decision).
7 AFR at 2. Pratt sought the first circulated draft only, not the various iterations of changes to the original draft
while the item was on circulation. Id. at 1.

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FCC 11-142

because the Commission did not deliberate prior to its circulation.8 He also asserts that withholding of
the initial draft violates the policy of transparency embodied in President Obama's Memorandum on the
Freedom of Information Act.9 In addition, Pratt claims that "favored media outlets" were aware of the
content of portions of the draft and the Commission would be acting in an "invidious manner" if it
continues to withhold the draft.10 Finally, Pratt asserts that the process that resulted in the Open Internet
Order
could not have been deliberative given that the final version of the decision was circulated shortly
before it was voted at the December 10, 2010 meeting.11 On this basis, Pratt contends that all drafts,
including the initially circulated draft, are ineligible for Exemption 5 protection.

III.

DISCUSSION

4.
Discussion: We affirm OGC's decision to withhold the first draft of the Open Internet
Order circulated on December 1, 2010.12 The scope of FOIA Exemption 5 is well established. As OGC
stated, Exemption 5:
permits the withholding of "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." Incorporated within FOIA
Exemption 5 is the deliberative process privilege, which is meant to
prevent injury to the quality of agency decisions. This privilege may be
invoked for reasons that include encouraging open, frank discussions on
matters of policy between subordinates and superiors; protecting against
premature disclosure of proposed policies before they are actually
adopted; and preventing the public confusion that might result from an
agency's release of reasons and rationales that were not in fact
ultimately the grounds for an agency's action.13
5.
We agree with OGC's explanation of why the circulated draft should be withheld under
FOIA Exemption 5:
The FCC Commissioners rely upon the expert advice of the agency's
attorneys, economists, and other career staff to supplement their own
review of the law and the public record. Draft Commission decisions
go through many revisions and layers of review before they become
final. It is a collaborative process during which the Commissioners,
their personal advisors, and other agency staff converse frankly about
the general concepts in a draft decision as well as the details of its
language. To release draft decisions would impinge upon the open,
frank discussions of policy needed for the Commission to do its work
and create confusion in the minds of the public by suggesting rationales


8 AFR at 3.
9 AFR at 2, referring to Freedom of Information Act, 74 Fed. Reg. 4683 (Jan. 21, 2009) (FOIA Memorandum).
10 AFR at 2.
11 Pratt relies, without citation, on the supposedly "widely quoted" remarks of former Commissioner Baker, who
dissented from the Open Internet Order, that she had insufficient time to deliberate on the final draft before the
vote.
12 Decision, supra.
13 Id. at 1, citing NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151 (1975), and Coastal States Gas Corp. v. Dep't
of Energy
, 617 F.2d 854, 866 (D.C. Cir. 1980).
2

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FCC 11-142

that were not adopted by the Commission. Draft decisions are therefore
withheld under FOIA Exemption 5. This practice is consistent with
longstanding Commission policy . . . . The Commission's final
decisions are the only authoritative statements of agency position, and
they are available to the public.14
6.
Pratt's arguments do not cast doubt on OGC's reasoning. First, the underlying objective
of the deliberative process exemption, protecting the quality of agency decision-making, remains
relevant even after the Commission's December 21, 2010 vote to adopt the Open Internet Order.15
Withholding the initial draft protects the integrity of the decision-making process by ensuring that the
Commissioners are judged by what they decided, not by the deliberative path they followed in the course
of making up their minds.16 Further, withholding the draft decision even after a final decision is made is
necessary to ensure that Commission staff will continue to feel free to give the Commissioners their best
and most candid advice, without fear that their personal views will later face public scrutiny. Because
Exemption 5 protects staff advice, Pratt's argument that the deliberative process exemption does not
apply to the first draft received by the Commissioners is erroneous and all drafts circulated to the
Commissioners qualify as pre-decisional, deliberative material eligible to be withheld pursuant to the
deliberative process exemption regardless of how long a particular draft remains on circulation.17
7.
OGC's decision is not, as Pratt claims, contrary to President Obama's FOIA
Memorandum.18 While the FOIA Memorandum provides that all agencies "should adopt a presumption
in favor of disclosure," it expressly "does not create any right or benefit, substantive or procedural,
enforceable at law or equity by any party."19 OGC considered discretionary release of the draft,20 and
determined that discretionary release would cause the harms described above. The FOIA Memorandum
requires no more.
8.
Finally, Pratt's suggestion that Commission staff leaked portions of the draft to selected
media outlets is entirely unsupported. The record of this proceeding contains no evidence indicating that
such release of pre-decisional drafts of the Open Internet Order actually occurred, much less ones


14 Decision at 1-2, citing John Dunbar, The Associate Press, 23 FCC Rcd 9850 (2008); Bill McConnell, 16 FCC
Rcd 17412 (2001); Norcom Communications, Inc., 14 FCC Rcd 8055 (1999); and Arthur Firstenberg, FOIA
Control No. 98-67, FCC 98-287 (Nov. 4, 1998).
15 See, e.g., Coastal States, 617 F.2d at 866 (a record does not lose Exemption 5 protection once the deliberative
process is at an end unless the materials have been expressly adopted or incorporated into a decision).
16 Jordan v. U.S. Dep't of Justice, 591 F.2d 753, 772-73 (D.C. Cir. 1978) (en banc); The Shinnecock Indian Nation
v. Kempthorne,
652 F.Supp. 2d 345, 360 (D. N.Y. 2009).
17 Given that Pratt's FOIA request "is limited to the first draft, and is not intended as a request for other drafts or
iterations," AFR at 1, he fails to explain how the opportunity that individual Commissioners ultimately had to
deliberate over the final draft would affect the eligibility of the first draft (or any previously circulated version) for
the deliberative process exemption.
18 74 Fed. Reg. 4683 ("All agencies should adopt a presumption in favor of disclosure, in order to renew their
commitment to the principles embodied in FOIA, and to usher in a new era of open government.").
19 Id. at 4683; see Yonemoto v. Dep't of Veteran's Affairs, Civ. No. 06-00378 BMK (D. Haw. 2009), at *8 (2009
WL 5033597) (no enforceable rights created by the FOIA Memorandum); see also Kahn v. Federal Motor Carrier
Safety Administration,
648 F.Supp.2d 31, 37-38 (D.D.C. 2009) (rejecting the argument that Obama's FOIA policy
alters the application of a federal statute).
20 Decision at 2.
3

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FCC 11-142

authorized by the Commission. Pratt's bare allegations thus cannot serve to overcome the deliberative
process privilege.21
9.
IT IS ORDERED that the application for review filed on February 3, 2011, by Peter J.
Pratt IS DENIED. Pratt may seek judicial review of this action pursuant to 5 U.S.C. 552(a)(4)(B).22
10.
The officials responsible for this action are the following Commissioners: Chairman
Genachowski and Commissioners Copps, McDowell, and Clyburn.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary


21 Maximum Service Television, Inc., 25 FCC Rcd 11098, 11102 n.43 (2010) (FOIA proceeding is not the
appropriate venue to raise issue of misconduct); Warren Havens, 24 FCC Rcd 12308, 12312 & n.37 (2009)
("Havens's unsubstantiated allegations of misconduct or mistreatment by Commission staff provide no basis to
avoid application of Exemption 5.").
22 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 Pratt's right to pursue litigation.
Pratt 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
4

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