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Requesting for Inspection of Records and Expedited Processing.

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Released: September 30, 2011

Federal Communications Commission

FCC 11-143

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
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ELECTRONIC FRONTIER
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FOIA Control No. 2010-485
FOUNDATION
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On Request for Inspection of Records
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On Request for Expedited Processing
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MEMORANDUM OPINION AND ORDER

Adopted: September 29, 2011

Released: September 30, 2011

By the Commission:

I. INTRODUCTION

1. By this Memorandum Opinion and Order, we deny an Application for Review (AFR) filed by
Electronic Frontier Foundation (EFF)1 seeking review of a decision of the Office of General Counsel
(OGC)2 that granted in part and denied in part its Freedom of Information Act (FOIA) request3 for records
reflecting discussions between FCC officials and representatives of telecommunications, cable, and
Internet companies and organizations relating to potential broadband Internet legislation and regulation.4
We find that OGC correctly determined that certain handwritten personal notes do not constitute agency
records; that the agency records not disclosed are deliberative materials that fall within FOIA Exemption
5; and that there are no segregable portions of those records that could be released. We also find that
EFF's AFR regarding expedited processing of the Request is moot.5

II. BACKGROUND

2. EFF's Request seeks all records from June 17, 2010 to July 6 or 7, 20106 that reflect discussions
between FCC officials and representatives of telecommunications, cable, and Internet companies and
organizations concerning (1) potential legislation on broadband Internet regulation, including but not
limited to potential amendments to the Communications Act; (2) potential FCC reclassification of
broadband Internet connectivity services as "telecommunications services" subject to regulation under


1 See Review of Freedom of Information Action, filed September 15, 2010, by EFF (AFR).
2 See Letter from Ann Bushmiller, Deputy Associate General Counsel to EFF (Aug. 18, 2010) (Decision).
3 See E-mail from Marcia Hoffman EFF to FOIA@fcc.gov (July 6, 2010) (Request).
4 Id.at 2.
5 See E-mail from Marcia Hoffman EFF to FOIA@fcc.gov (July 26, 2010) (Expedited Processing AFR); Letter
from Joel Kaufman, Associate General Counsel to EFF (July 20, 2010) (Expedited Processing Decision).
6 The Request, dated July 6, 2010, seeks all responsive records from June 17, 2010 "to the present." Request at 2.
The Request was received on July 7, 2010 and the search was conducted for records dated from June 17, 2010
through July 7, 2010. Decision at 1. See 47 C.F.R. 0.461(f)(6).

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FCC 11-143

Title II of the Communications Act; and (3) the application of ex parte rules to any meetings between
FCC officials and representatives of telecommunications, cable, and Internet companies and
organizations.7 EFF's Request included a request for expedited processing, arguing that that there was an
"urgency to inform the public about an actual or alleged Federal Government activity" and that the
request is "made by a person primarily engaged in disseminating information."8
3. OGC denied the request for expedited processing on the grounds that the request failed to explain
how there was an urgent need for the release of the requested records.9 A search of the files of the FCC
officials involved in the discussions referenced in the Request identified: (1) handwritten personal notes
of FCC staff; (2) emails among FCC staff; and (3) various draft documents. OGC found that the
handwritten notes of FCC staff were intended solely for the personal use of the staff members who
created them and thus did not constitute "agency records" subject to the FOIA.10 OGC determined that
emails among FCC staff, portions of email chains that were communications among FCC staff, and draft
documents concerning the subjects of EFF's Request are exempt from disclosure pursuant to the
deliberative process privilege of FOIA Exemption 5.11 As required by the FOIA, OGC reviewed the
records subject to Exemption 5 to determine if segregable portions of those records could be released and
determined that the release of a number of the emails (or portions thereof) would not harm any of the
interests protected by FOIA Exemption 5.12 Those records and others not falling into any of the three
categories set out above were produced.13

III. APPLICATIONS FOR REVIEW

4. EFF filed two AFRs. The first sought review of the denial of its request for expedited processing
because, EFF argued, "expedited processing requests should be granted when documents are relevant to
the debate on imminent or pending legislation."14 In the second AFR, EFF questions whether handwritten
notes were properly classified as non-agency records. EFF contends that even if documents are used
solely for personal convenience, they may nonetheless be considered agency records subject to disclosure
pursuant to the FOIA if they show "indicia of agency record-keeping."15 EFF also states that it believes
that OGC is applying Exemption 5 "too broadly" regarding predecisional materials. EFF argues that the
Commission bears the burden of establishing that agency records are predecisional or deliberative,16 and
that each document should be reviewed to determine whether given its age, contact and character it can be
released without harming an interest protected by FOIA Exemption 5.17 Finally, EFF questions whether


7 Request at 2.
8 Request at 2 (citing 47 C.F.R. 0.461(h)(3)(ii)).
9 Expedited Processing Decision at 1.
10 Decision at 1-2.
11 Id. at 2-3.
12 Id. at 2.
13 Pursuant to FOIA Exemption 6, 5 U.S.C. 552(b)(6), OGC redacted personal email addresses and telephone
numbers from agency records (emails and ex parte letters) produced pursuant to the Request. Decision at 2.
14 Expedited Processing AFR at 2.
15 AFR at 2 (citing Washington Post v. U.S. Dep't of State, 632 F. Supp. 607, 616 (D.D.C. 1986)).
16 AFR at 2 (citing Arthur Anderson & Co. v. IRS, 679 F.2d 254, 258 (D.C. Cir. 1982)).
17 Id. at 3 (citing OIP Guidance: President Obama's FOIA Memorandum and Attorney General Holder's FOIA
Guidelines: Creating a New Era of Open Government
(Apr. 17, 2009)).
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FCC 11-143

one draft document was properly withheld under FOIA Exemption 5, pointing to disclosed records that
reference a document that "appears to have been shared" with a non-agency employee.18

IV. DISCUSSION

6. None of EFF's arguments warrant a result different than that reached by OGC. We disagree with
EFF's contention that the handwritten notes located during the FOIA search are agency records subject to
disclosure. The determination whether records are agency records subject to disclosure under the FOIA
or are personal records physically maintained by agency employees but not subject to disclosure is to be
based on "the totality of the circumstances surrounding the creation, maintenance and use of the
[record]."19 This is the test OGC used when it determined that the records were created by staff members
for their personal use, were not distributed to other staff and were subject to disposal at the creator's
discretion.20 EFF does not take issue with any of these factual determinations. OGC did not, as EFF
suggests, find that the handwritten records were personal records because they are handwritten.
7. EFF argues that in some circumstances handwritten notes "may constitute agency records if they
show `indicia of agency record-keeping.'"21 The argument misses the mark in this instance because the
handwritten notes at issue here bear no indicia of agency record-keeping. The documents in the
Washington Post case, cited by EFF, were compiled by Department of State employees as part of daily
work routine and placed into agency files accessible to members of the Secretary of State's staff.22 In
fact, the court contrasted the records at issue in that case with "personal papers created solely for the
personal use and convenience of the author [and which] are not encompassed by the FOIA."23 The
handwritten notes EFF seeks fall in the latter category and we affirm OGC's determination that those
notes do not constitute agency records and therefore are not subject to disclosure under the FOIA.24
8. EFF contends that in determining which records were to be released in response to the Request
the FCC applied FOIA Exemption 5 "too broadly"25 to predecisional materials. We disagree. Exemption
5 encompasses a deliberative process privilege intended to "prevent injury to the quality of agency
decisions."26 To fall within the scope of this privilege the agency records must meet two criteria they


18 AFR at 2.
19 Bureau of Nat'l Affairs v. U.S. Dep't of Justice, 742 F.2d 1484, 1492-93 (D.C. Cir. 1984); see also Consumer
Fed'n of Am.
, 455 F.3d 283, 287-88 (D.C. Cir. 2006)
20 Decision at 1.
21 AFR at 2 (quoting Washington Post, 632 F. Supp. at 616).
22 Id. at 613.
23 Id. at 616.
24 See Judicial Watch, Inc. v. Clinton, 880 F. Supp. 1, 11 (D.D.C. 1995) ("Even [agency] staff notes containing
substantive information ordinarily need not be disclosed unless they are intended for distribution through normal
agency channels or can be said to be within the `control or dominion' of an agency") (citing American Fed'n of
Gov't Employees, Local 2782 v. U.S.Dep't of Commerce
, 632 F.Supp. 1272, 1277 (D.D.C. 1986), aff'd, 907 F.2d
203 (D.C. Cir. 1990)); Bloomberg L.P. v. SEC, 357 F. Supp. 2d 156, 167 (D.D.C. 2004) (meeting notes created by
SEC Chairman's Chief of Staff were personal records not subject to disclosure under the FOIA).
25 AFR at 3.
26 NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151 (1975); see also Judicial Watch, Inc. v. Dep't of Energy, 412
F.3d 125, 129 (D.C. Cir. 2005) ("[T]he quality of administrative decision-making would be seriously undermined if
agencies were forced to `operate in a fishbowl' because the full and frank exchange of ideas on legal or policy
matters would be impossible") (quoting Tax Analysts v. IRS, 117 F.3d 607, 617 (D.C. Cir. 1997)).
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FCC 11-143

must be both predecisional and deliberative.27 To be predecisional the record in question must have been
generated before the adoption of an agency policy, and to be deliberative the record must "reflect the
give-and-take of the consultative process."28 We have reviewed the records withheld by OGC under
Exemption 5 and find that they were properly withheld. The records are predecisional because they were
created in connection with staff discussions concerning the then-pending open Internet proceeding.29 The
records are deliberative in that they reflect ongoing staff discussions within the agency, which are the core
of the consultative process. Finally, EFF points out that the deliberative process privilege will not apply
if the documents in question have been adopted as the Commission position on an issue or used by the
Commission in its dealings with the public.30 Here, however, the withheld documents were not used in
this fashion.
9. EFF also argues that one of the documents withheld under Exemption 5 should have been
disclosed because it appears to have been shared with a non-agency employee not acting in a formal role
on behalf of the agency and therefore ceased to be an intra-agency communication to which Exemption 5
is applicable.31 The document at issue was sent by an agency employee to his FCC email account from
the personal email account of his spouse to which he has access on a home computer, but the document
was never released to his spouse. In contrast, the cases cited by EFF involve intentional releases by a
federal agency to attorneys engaged in settlement negotiations with the agency32 and to non-agency
personnel attending a symposium.33 In both of those cases the material was intentionally released by the
agency to the recipient for use by the recipient in connection with agency business. Here, the spouse of
the FCC employee was not a participant in the proceeding and, even if she theoretically could have
accessed it, she would have had no reason to read it. In any event, inadvertent disclosure of material by
an agency does not result in the waiver of a FOIA exemption.34 Thus, even if the state of facts set forth
above was construed as a disclosure to non-agency personnel, the disclosure under these circumstances
was inadvertent and that Exemption 5 remains applicable.
10. As did OGC, we have examined the agency records at issue here to determine whether any
additional portions could be segregated and released, or whether any of the records should be released in
the exercise of our discretion under the FOIA.35 We can discern no additional non-exempt material that
can be reasonably segregated from the withheld records, beyond the material released by OGC in


27 See Judicial Watch, 412 F.3d at 129; Senate of the Commonwealth of Puerto Rico v. U.S. Dep't of Justice, 823
F.2d 574, 585 (D.C. Cir. 1987).
28 Senate of the Commonwealth of Puerto Rico, 823 F.2d at 585; see also Coastal States Gas Corp. v. Dep't of
Energy
, 617 F.2d 854, 866 (D.C. Cir. 1980).
29 See Preserving the Open Internet et al., Notice of Proposed Rulemaking, 24 FCC Rcd 13064 (2009).
30 AFR at 2 (citing Coastal States Gas Corp., 617 F.2d at 866.
31 AFR at 2 (citing Cnty of Madison v. U. S. Dep't of Justice, 641 F.2d 1036, 1040-41 (1st Cir. 1981)); Leadership
Conference. on Civil Rights v. Gonzales
, 404 F. Supp. 2d 246, 255 (D.D.C. 2005).
32 Cnty of Madison, 641 F.2d at 1040-41.
33 Leadership Conference, 404 F.Supp.2d at 255.
34 Garside v. Webster, 733 F. Supp.1142, 1147 (S.D. Ohio 1989); Anderson v. U.S. Dep't of Treasury, No. 98-1112,
1999 WL 282784 at *4 (W.D.Tenn. Mar. 24, 1999); see also, Billington v. U.S. Dep't of Justice, 69 F.Supp. 2d 128,
137 (D.D.C. 1999); Scott v. PPG Indus., Inc., 142 F.R.D. 291, 294 (N.D.W.Va. 1992).
35 See President's Memorandum for the Heads of Executive Departments and Agencies, Freedom of Information
Act,
74 Fed.Reg. 4683 (2009); Attorney General's Memorandum for Heads of Executive Departments and Agencies
Concerning the Freedom of Information Act
(Mar. 19, 2009) (available at http://www.usdoj.gov/ag/foia-memo-
march2009.pdf).
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FCC 11-143

response to the Request.36 Pursuant to the discretion which the FOIA affords the Commission we have
determined that the email header blocks (i.e. the "from," "to" and "subject" lines) from exempt email
records should be released to EFF. We exercise our discretion to release the email header blocks because
withholding them is not necessary to "prevent injury to the quality of agency decisions."37 Release of
additional exempt records (beyond the email address headers) would likely inhibit the full and frank
exchange of ideas essential to robust agency decision making.38
11. Because all non-exempt records responsive to EFF's Request have already been produced,
EFF's appeal of the denial of expedited processing of its Request is moot.39

V. ORDERING CLAUSE

12. IT IS ORDERED that EFF's Application for Review of Denial of Expedited Processing IS
DISMISSED AS MOOT AND EFF'S Application for Review is GRANTED in part and DENIED in part.
EFF may seek judicial review of this action pursuant to 5 U.S.C. 552(a)(4)(B).40
13. The following officials are responsible for this action: Chairman Genachowski and
Commissioners Copps, McDowell, and Clyburn.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary


36 See Mead Data Central, Inc. v. U.S. Dep't of the Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977).
37 NLRB v. Sears, Roebuck & Co., 421 U.S. at 151.
38 See Tax Analysts v. IRS, 117 F.3d at 617.
39 See Landmark Legal Found. v. EPA, 272 F.Supp. 2d 59, 62-63 (D.D.C. 2003); Hornbostel v. U.S. Dep't of
Interior
, 305 F. Supp. 2d 21, 28 (D.D.C. 2004).
40 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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