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Ted Hudacko

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Released: December 21, 2012

Federal Communications Commission

FCC 12-158

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

TED HUDACKO
)
FOIA Control No. 2012-071
)
On Request for Inspection of Records
)
)

In the Matter of
)
)

THE UNIVERSITY OF SAN FRANCISCO
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and CLASSICAL PUBLIC RADIO
)
NETWORKS, LLC
)
)

On Request for Confidential Treatment
)

MEMORANDUM OPINION AND ORDER

Adopted: December 18, 2012

Released: December 21, 2012

By the Commission:

I.

INTRODUCTION

1.
This Order affirms the Media Bureau’s (Bureau’s) decision on a Freedom of
Information Act (FOIA) request filed by Ted Hudacko.1 Specifically, the University of San
Francisco (University) has filed an Application for Review challenging the Bureau’s decision to
release a “privilege log” submitted by the University in response to a Letter of Inquiry (LOI) from
the Bureau.2 We find that the privilege log is an agency record subject to the FOIA, and that the
University did not demonstrate that the log is a confidential attorney-client communication that
can be withheld under FOIA Exemption 4. We therefore affirm the Bureau’s decision.

II.

BACKGROUND

2.
On November 19, 2011, Hudacko filed a FOIA request seeking unredacted
versions of documents submitted by the University and CPRN (Classical Public Radio Networks,
LLC) in response to an LOI issued by the Bureau. The LOI concerned the University’s and
CPRN’s application for consent to assign the license for noncommercial educational (NCE) FM


1 See letter from Michael S. Perko, Chief, Office of Communications and Industry Information, Media
Bureau, FCC, to Ted Hudacko (Feb. 9, 2012) (Bureau Decision).
2 See Application for Review of Mr. Ted Hudacko Freedom of Information Act Action, by the University
of San Francisco (Feb. 24, 2012) (AFR).

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station KUSF(FM), San Francisco, California (the Station)3 from the University to CPRN
(Assignment Application).4 Among other documents, Hudacko sought access to the privilege log
that the University submitted with a request for confidentiality as part of its response to the LOI.5
3.
On February 9, 2012, the Bureau granted in part and denied in part Hudacko’s
FOIA request. The Bureau found, inter alia, that the University’s privilege log, which identified
and described documents that the University withheld pursuant to the attorney-client privilege
from its LOI response, should be released.6 The Bureau found that the “privilege log itself does
not contain confidential information”7 but, instead, “is merely a summary of facts submitted in
lieu of the materials that [the University] has retained based on its claim of privilege.”8 Stating
that “[d]ocuments like this are not normally shielded from disclosure[,]”9 the Bureau compared a
privilege log to the Vaughn index in the FOIA context.10



3 The Bureau issued the LOI and initiated an investigation into the proposed transaction in response to
petitions to deny the assignment filed by Hudacko and Friends of KUSF and an untimely petition to deny
filed by Loren Dobson, which the Bureau treated as an informal objection under Section 73.3587 of the
Commission’s rules, 47 C.F.R. § 73.3587. The LOI requested the parties’ responses regarding: (1)
monthly payments for program time in apparent violation of Section 73.503(c) of the Commission’s rules,
47 C.F.R. § 73.503(c) (which forbids such payments to NCE radio stations unless they are limited to
reimbursement of operating expenses); and (2) the parties' apparently false certifications that the transaction
complied with the Commission’s rules and policies.
4 On June 7, 2012, the Bureau granted the Assignment Application and denied all the petitions to deny and
informal objections opposing the grant of that application, including Hudacko's petition to deny. See
University of San Francisco (Assignor) and Classical Public Radio Network LLC (Assignee) for Consent to
Assignment of License Station KUSF(FM)
, San Francisco, CA, File No. BALED-20 1101 25ACE; see also
letter to Alan Korn, Esq., et al., from Peter H. Doyle, Chief, Audio Division, Media Bureau, FCC, at 1-2
(Media Bur. June 7, 2012) (available at http://licensing.fcc.gov/cgi-bin/prod/cdbs/forms/prod/
getimportletter_exh.cgi?import_letter_id=34273). At the same time, the Bureau approved a Consent
Decree entered into by the Bureau, the University, and CPRN regarding the alleged violations discussed in
footnote 5 above. See University of San Francisco (Assignor) and Classical Public Radio Network LLC
(Assignee) for Consent to Assignment of License
-Station KUSF(FM), San Francisco, CA, Order, 27 FCC
Rcd 5674 (Media Bur. June 7, 2012) (Consent Decree). Hudacko has sought review of these two actions.
See Hudacko Application for Review, File No. BALED-20 1101 25ACE (July 2, 2012).
5 Hudacko FOIA Request at 2-3. Hudacko also requested salary information for the University and CPRN
employees, and the University’s and CPRN’s donor and underwriting documentation. See id.
6 Bureau Decision at 5. The Bureau also found that the employee salary information and donor and
underwriting documentation, see supra n.7, for the most part fell within FOIA Exemptions 4 and 6 and
should not be released. See Bureau Decision at 3-4. In addition, the Bureau found that other materials
sought by Hudacko were not within the agency’s possession and control and thus were not subject to
production under the FOIA. See id. at 2. These decisions are not at issue here.
7 Id. at 5.
8 Id.
9 Id.
10 See id. (citing Amnesty International USA v. CIA, 728 F. Supp 2d 479, 519 (S.D.N.Y. 2010) (comparing
the requirements of the privilege log to the requirements of a Vaughn index); Sharkey v. FDA, 250 Fed.
Appx. 284, 286 n.2 (11th Cir. 2007) (comparing function of Vaughn index in FOIA context to function of
privilege log in civil discovery)). Under Vaughn v. Rosen, 484 F.2d 820, 827 (D.C. Cir. 1973), agencies
are required to prepare an itemized index correlating each withheld document (or portion) with a specific
FOIA exemption and the relevant part of the agency's nondisclosure justification.
2

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III.

APPLICATION FOR REVIEW

4.
The University filed an Application for Review challenging the Bureau’s
decision to release the privilege log and Hudacko filed a reply.11 First, the University contends
that “its privilege log is more akin to a private record than the ‘agency records’ to which FOIA
applies.”12 It cites the Commission’s 2010 Skybridge Spectrum Foundation decision for the
proposition that “[t]he core purpose of FOIA is to illuminate the operations and activities of the
government and not that of private entities, whose records happen to be in government
custody.”13 The University also asserts that the Bureau’s suggestion that a privilege log was
analogous to a Vaughn index was misplaced, because a Vaughn index “details agency records,
which are presumptively subject to disclosure under FOIA,”14 while the instant privilege log
“describes private records which are not.”15
5.
Second, the University alleges that the privilege log is protected by the attorney-
client privilege. The University maintains that producing its “privilege log would grant Hudacko
information about [the University’s] correspondence with its attorneys . . . . [where t]he
underlying documents are not subject to FOIA[.]”16 It states that Hudacko is “simply not legally
entitled [to information about privileged correspondence].”17
6.
Third, the University argues that because “a Vaughn index is a tool for judicial
review”18 and is “not typically provided at the administrative level[,]”19 the University should not
have to produce its privilege log at the administrative level.20 Rather, it maintains that “there are
no grounds for disclosing the University’s listing of its privileged and confidential
communications . . . until the proceeding to which that listing pertains is before a reviewing
court.”21

IV.

DISCUSSION

7.
We agree with the Bureau’s decision that the privilege log should be released in
its entirety to Hudacko. We do not find any of the University’s arguments to be persuasive.
8.
First, we find that the privilege log is an agency record. Under the FOIA, the
Commission must disclose reasonably described agency records requested by any person, unless
the records contain information that fits within one of the nine exemptions from disclosure
provided in the Act.22 Agency records are documents which are (1) either created or obtained by


11 See letter from Ted Hudacko to Marlene H. Dortch, Secretary, FCC (Mar. 1, 2011).
12 AFR at 2.
13 Id. (quoting Skybridge Spectrum Foundation, 25 FCC Rcd 11064, 11069 (2010) (Skybridge Spectrum
Foundation
)).
14 Id.
15 Id.
16 Id. at 3.
17 Id.
18 Id. at 4 (quoting Almira Capital Corp., 11 FCC Rcd 6710, n.4 (1996)).
19 Id.
20 Id.
21 Id.
22 See 5 U.S.C. § 552(b).
3

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FCC 12-158

an agency, and (2) are under agency control at the time of the FOIA request.23 More specifically,
courts have found that documents submitted to an agency at an agency’s request are agency
records under FOIA.24 Because the privilege log, which was submitted by the University to the
Bureau in response to the LOI, was in the control of the Commission at the time Hudacko filed
his FOIA request, the privilege log is clearly an agency record within the meaning of the FOIA.
Accordingly, we disagree with the University’s assertion that the privilege log is a private
document not subject to the FOIA.25 We would also note that differences cited by the University
between the documents described in a Vaughn index and a privilege log are not relevant to the
analysis of whether the privilege log is an agency record subject to the FOIA given that the
privilege log was submitted by the University to the Bureau in response to the LOI and was in the
Commission’s possession at the time of Hudacko’s FOIA request.
9.
Second, we find that the privilege log is not protected by the attorney-client
privilege. Exemption 4 of the FOIA protects from disclosure “trade secrets and commercial or
financial information obtained from a person [that is] privileged or confidential”26 and has been
construed to protect from disclosure confidential communications between an attorney and client
obtaining legal advice.27 Under our rules, those seeking to withhold information from public
inspection must explain why the information is privileged.28 Here, the University provides no
explanation as to how disclosure of the privilege log might breach the attorney-client privilege.
The University does not explain how a summary of facts provided to the Bureau retained any


23 See Dept. of Justice v. Tax Analysts, 492 U.S. 136, 144-45 (1989).
24 See RCA Global Communications, Inc. v. FCC, 524 F. Supp. 579, 583 (D.Del. 1981) (finding
documents produced by regulated communications company in response to an FCC investigatory subpoena
were agency records for purposes of the FOIA) and Teich v. Food and Drug Administration, 751 F.Supp.
243, 247-49 (D.D.C. 1990) (finding summary of consumer complaints which was submitted to the Food
and Drug Administration (FDA) upon request became an agency record within the meaning of the FOIA
once it was filed with the FDA where the complaint summary was drafted at the specific request of the
agency in the legitimate conduct of its official duties); cf. FCC v. AT&T, 131 S.Ct. 1177 (2011) (upholding
FCC Order granting competitors’ FOIA requests for documents FCC obtained from petitioner during
course of an FCC investigation).
25 We note that the University’s reliance on the Skybridge Spectrum Foundation decision, see supra para. 4,
is misplaced. In Skybridge Spectrum Foundation, the Commission rejected Skybridge Spectrum
Foundation's argument that FOIA Exemption 4, which applies trade secrets and confidential commercial or
financial information, see 5 U.S.C. § 552(b)(4), does not protect allegedly fraudulent information. See
Skybridge Spectrum Foundation
at 11069. In finding that the submitting party’s interest in protecting
confidential information outweighed the public interest in disclosure, the Commission noted that “the core
purpose of the FOIA is to illuminate the operations and activities of the government and not that of private
entities, whose records happen to be in government custody.” Id. Significantly, the issue in Skybridge was
not whether the documents were agency records, but whether Exemption 4 applied. Here, as discussed
above, the documents at issue are clearly agency records subject to FOIA, and no FOIA exemption is
applicable.
26 5 U.S.C. § 552(b)(4).
27 See Miller, Anderson, Nash, Yerke & Wiener v. DOE, 499 F. Supp. 767, 771 (D. Or. 1980). (legal advice
memorandum prepared for a utility company by its attorney qualified for protection under Exemption 4 as
subject to the attorney-client privilege and could be withheld as “confidential.”)
28 See 47 C.F.R. § 0.459(b)(3) (requests that information be withheld from public inspection as privileged
shall include an “[e]xplanation of the degree to which the information . . . is privileged”) and 47 C.F.R §
0.459(c) (“[c]asual requests” that information be withheld from public inspection “that do not comply with
the requirements of paragraph[ ] . . . (b) of this section will not be considered”).
4

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privilege that might have existed between the University and its attorneys.29 Indeed, the very
purpose of the privilege log, which was produced to the Bureau in lieu of documents that might
have compromised the attorney-client privilege, was to avoid producing material subject to the
attorney-client privilege. Nor does it appear that the University prepared the privilege log for the
purpose of securing legal advice; rather, the University compiled and submitted the privilege log
to the Bureau instead of providing the documents described in the log itself. As such, the
privilege log does not constitute legal advice protectable under the attorney-client privilege that
would be exempt from disclosure under FOIA Exemption 4.
10.
Finally, we reject the University’s argument that if the privilege log is like a
Vaughn index, it can only be released upon an order of a court, as Vaughn indices are prepared
and released by court order. The fact that an agency need not provide a Vaughn index until it is
ordered to do so by a court has no bearing on the issue of whether the privilege log here should be
released. As noted above, the pertinent issues are whether the privilege log is an agency record
and whether the University can withhold the log as a confidential attorney-client communication
under Exemption 4.
11.
Because the privilege log is an agency record and because the University has not
demonstrated that the log is a confidential attorney-client communication subject to FOIA
Exemption 4, we affirm the Bureau’s decision that the privilege log should be released in its
entirety to Hudacko. We therefore deny the University’s Application for Review.

V.

ORDERING CLAUSES

12.
IT IS ORDERED that University of San Francisco’s and Classical Public Radio
Networks, LLC’s request for confidential treatment is DENIED.
13.
IT IS FURTHER ORDERED that the Application for Review filed by University
of San Francisco IS DENIED. University of San Francisco may seek judicial review of this
action pursuant to 5 U.S.C. §552(a)(4)(B). 30 If University of San Francisco does not seek a


29 See Upjohn Co. v. U.S., 449 U.S. 383, 395 (1981) (the protection of the attorney-client privilege extends
only to communications and not the underlying facts).
30 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
Hudacko’s right to pursue litigation. Hudacko 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
5

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judicial stay within ten (10) working days of the date of release of this memorandum opinion and
order, we direct the Media Bureau to produce the privilege log to Mr. Hudacko.31
14.
The following officials are responsible for this action: Chairman Genachowski
and Commissioners McDowell, Clyburn, Rosenworcel, and Pai.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary


31 See 47 C.F.R. § 0.461(i)(4).
6

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