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William J. Kirsch

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Released: October 26, 2012

Federal Communications Commission

FCC 12-133

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

William J. Kirsch
)
FOIA Control Nos. 2011-552, 2012-176,
)
and 2012-241
On Requests for Inspection of Records
)

MEMORANDUM OPINION AND ORDER

Adopted: October 25, 2012

Released: October 26, 2012

By the Commission:

I.

INTRODUCTION

1. This Memorandum Opinion and Order denies three applications for review (AFRs)
filed by William J. Kirsch.1 Mr. Kirsch seeks review of decisions by the Office of Managing
Director (OMD) and the International Bureau (IB)2 responding to his Freedom of Information
Act (FOIA) requests3 for records, asserting that the searches performed by Commission staff in
each of these three cases should have yielded particular documents or types of documents that he
expressly identifies. In Decision 1, OMD provided Mr. Kirsch, a former Commission employee
assigned to IB, documents responsive to his Request 1 for information related to his 1998
employment transfer to the International Telecommunication Union (ITU),4 and in Decisions 2
and 3, IB informed Mr. Kirsch that the searches performed in response to his Requests 2 and 3,
each of which related to his work experiences at the ITU subsequent to his transfer, did not
locate any responsive documents. As explained below, we find that the searches performed in
response to Mr. Kirsch’s Requests 1-3 were reasonable under the FOIA and we deny his AFRs.


1 See Review of Freedom of Information Action & Freedom of Information Act Request, filed November 16, 2011,
by William J. Kirsch (AFR 1); Review of Freedom of Information Action and Privacy Act Correction Request, filed
March 13, 2012, by William J. Kirsch (AFR 2); Freedom of Information Act (FOIA) and Privacy Act Appeal, filed
May 4, 2012, by William J. Kirsch (AFR 3).
2 See Letter from Bonita Tingley, Chief Human Capital Officer, OMD to William J. Kirsch (October 24, 2011)
(Decision 1); Letter from Sarah Van Valzah, Associate Bureau Chief for Management, Admin Office, IB (March 8,
2012) (Decision 2); Letter from Narda Jones, Division Chief, SAND, IB (April 13, 2012) (Decision 3).
3 See Freedom of Information Act Request, filed September 1, 2011, by William J. Kirsch (FOIA No. 2011-552)
(Request 1); Freedom of Information Act and Privacy Act Request, filed February 9, 2012, by William J. Kirsch
(FOIA No. 2012-176) (Request 2); Freedom of Information Act and Privacy Act Request, filed March 29, 2012, by
William J. Kirsch (FOIA No. 2012-241) (Request 3).
4 The ITU is the United Nations specialized agency for information and communication technologies. Among other
things, the ITU allocates global radio spectrum and satellite orbits and develops the technical standards that ensure
networks and technologies seamlessly interconnect. See http://www.itu.int/en/about/Pages/overview.aspx (retrieved
July 30, 2012). The FCC serves as a technical advisor to the Department of State for ITU meetings and conferences.

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FCC 12-133

II.

BACKGROUND

2.

FOIA No. 2011-552.

In Request 1, Mr. Kirsch sought “any and all documents or
correspondence associated with [his] transfer to the International Telecommunication Union.”5
The request was assigned to the OMD, the Office responsible for personnel and position
management. OMD conducted a search of its files for responsive materials. In addition, OMD
coordinated with IB, where Mr Kirsch worked prior to his transfer to the ITU and where Bureau
staff searched their files for responsive materials, and with the Office of General Counsel
(OGC).6
3. In response to Request 1, OMD located and provided Mr. Kirsch with two pages of
information drawn from its electronic records database, showing that Mr. Kirsch transferred from
the FCC to the State Department on June 13, 1998.7 Under FOIA Exemption 6, OMD redacted
personal identifying information, including Mr. Kirsch’s social security number, date of birth,
veteran’s preference and leave, because disclosure of that information to the public would
constitute a clearly unwarranted invasion of personal privacy.8
4.

FOIA No. 2012-176.

Mr. Kirsch’s Request 2 sought “any and all information
concerning [his] successful work as Secretary of the Credentials Committee and Secretary of the
Editorial Committee at the ITU Plenipotentiary Conference (Minneapolis 1998).”9 The request
was assigned to IB, the Bureau responsible, among other things, for development and articulation
of international telecommunications policies, and for representing the Commission on
international telecommunications matters at both domestic and international conferences and
meetings.10 IB, coordinating with OGC, conducted a search of its files and Mr. Kirsch’s
personnel folder for responsive materials and informed Mr. Kirsch that the search did not locate
any documents responsive to his request.11
5.

FOIA No. 2012-241.

Mr. Kirsch’s Request 3 sought “any information concerning
Article 2 of the Convention of the [ITU],” the provision on eligibility for re-election, and “the
role of the elected officials on the internal ITU administrative coordinating committee.”12 The
request also sought “any information concerning nonfeasance, malfeasance or misfeasance by
any ITU elected official” and “any FCC information concerning the migration of international


5 See Request 1.
6 OMD staff sent Mr. Kirsch a letter asking for clarification of his request and providing contact information, and
received no response. See Letter from Lois D. Jones, Human Resource Specialist, OMD to William J. Kirsch (dated
October 12, 2011). OMD staff also attempted to contact Mr. Kirsch by telephone, but was unable to reach him.
OMD therefore responded to Mr. Kirsch based on its best understanding of the information sought in his FOIA
request.
7 See Decision 1.
8 Id.; see 5 U.S.C. § 552(b)(6). OMD further advised that, if Mr. Kirsch wished to have an unredacted version of
these records, he should file a request under the Privacy Act and the Commission’s implementing regulations. See
47 C.F.R. §§ 0.554 – 0.556 (procedures for an individual to obtain their own records).
9 See Request 2.
10 See 47 C.F.R. § 0.51.
11 See Decision 2.
12 See Request 3.
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telecommunications-related activities to other international forums in light of the failed World
Summit on the Information Society.”13 This request also was assigned to IB. IB, coordinating
with OGC, conducted a search of Commission records and informed Mr. Kirsch that the search
did not locate any documents responsive to his request.14

III.

APPLICATIONS FOR REVIEW

6. Mr. Kirsch’s AFRs ask the Commission to review the decisions in all three of his
FOIA requests. In each case Mr. Kirsch identifies a specific document, or type of document, that
he claims was not provided in response to his FOIA requests. His statements to this effect thus
amount to a claim that the search for records was inadequate. In AFR 1, Mr. Kirsch states that
Decision 1 “does not provide a copy of then Chairman Kennard’s September 1998 letter
authorizing [Mr. Kirsch’s] ‘transfer,’” or “any reference to [his] request(s) to Chairman
Genachowski for reemployment or payment of annual leave.”15 In AFR 2, Mr. Kirsch indicates
that Decision 2 does not include “the ‘Constitution and Convention of the International
Telecommunication Union (Geneva 1992) as amended by the … Plenipotentiary Conference
(Minneapolis 1998) …’ referenced in Senate Executive Report 110-28 (September 23, 2008).”16
He states that Decision 2 should have included “[his] successful work as Secretary of the
Editorial Committee responsible for the Final Acts (Minneapolis 1998)” and that “FCC
representatives participated at the ITU Plenipotentiary Conference (Minneapolis 1998) and
should have retained copies of the various documents, including cables, associated with
credentials for a number of member states, including for the Former Yugoslav Republic of
Macedonia, and elections, including for Secretary-General and ITU Council.”17 Mr. Kirsch
further requests in AFR 2, “[u]nder the recent FOIA law … that any classified cables be
declassified and provided to [him].”18 Mr. Kirsch’s AFR 2 also states that Decision 1 “fails to
include, inter alia, career tenure, reemployment rights or accrued annual and sick leave.”19 In
AFR 3, Mr. Kirsch states that Decision 3 “d[oes] not include In Re Kirsch, ILO Administrative
Judgment 2022 in which the [ITU] failed to comply with its own Staff Regulations and Staff
Rules” or “other examples of harassment, intimidation and abuse or ‘mobbing’ by ITU elected
and other officials, including the ILO Administrative Judgments concerning the former Dutch
Chief of Personnel.”20
7. In addition, Mr. Kirsch states in AFR 1 that Decision 1 contained “unwarranted
disclosure of personal information, including [his] personal salary history,”21 and thus “violates
the Privacy Act and relevant case law.”22 Mr. Kirsch also states his “concern that [Decision 1]


13 Id.
14 See Decision 3. IB indicated that Mr. Kirsch may find it more helpful to contact the ITU. Id.
15 See AFR 1.
16 Id.
17 See AFR 2.
18 Id.
19 See AFR 2.
20 See AFR 3.
21 See AFR 1.
22 Id.
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and the referral to the Chief Human Capital Officer may represent retaliation by the Commission
for my opposition to the fundamentally flawed World Trade Organization Basic
Telecommunications Services Agreement for which [he] was relieved of primary FCC staff
responsibility,” such that Decision 1 may be a “bad faith response” to his Request 1.23 In AFR 2
and AFR 3, Mr. Kirsch also requests that his personnel records be corrected to reflect: a) that he
transferred from the Commission to the ITU and not, as indicated in the records provided to him
in Decision 1, the State Department;24 and b) his “‘separation’ from July 27, 2011.”25

IV.

DISCUSSION

8. We deny Mr. Kirsch’s AFRs. Mr. Kirsch’s AFRs essentially claim that the searches
conducted in response to his initial FOIA Requests were inadequate because they did not yield
particular documents or types of documents that he identifies or describes in his AFRs. Under
the FOIA, an agency must conduct a search that is “reasonably calculated to uncover all relevant
documents.”26 The reasonableness of an agency’s search depends upon the facts of each case.27
Specifically, the adequacy of a search under the FOIA is determined by a test of
reasonableness,28 which depends, in part, on the requester’s description of the records sought29
and how the search was conducted in light of the scope of the request.30 The mere inability to
locate requested documents does not render a search inadequate.31 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.32
9. We are satisfied that the documents provided to Mr. Kirsch represent all of the
responsive records that were located in response to Requests 1-3, pursuant to searches of
Commission files conducted by OMD and IB that were reasonably calculated to uncover all


23 Id.
24 See AFR 2.
25 See AFR 3. Although Mr. Kirsch’s AFR 3 contains no further explanation of what he means by his “‘separation’
from July 27, 2011,” a copy of a memo from him to H. Toure (presumably Dr. Hamadoun Touré, Secretary-General
of the ITU since January 2007) and attached to AFR 3, indicates that he may be referring to the date of his
resignation from employment. See AFR 3 at Attachment (Memo from W. Kirsch to H. Toure (dated May 21, 2011)
(“Please amend my July 1999 resignation offer to take effect July 27, 2011”)). In a memorandum to FCC staff on
September 12, 2012, among other things, Mr. Kirsch requests correction of his personnel records in accordance with
his previous correspondence with the FCC, including Requests 1 and 3. Memorandum from William J. Kirsch to
Leslie Smith, FCC (dated September 12, 2012).
26 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)).
27 See Weisberg v. U.S. Dep’t of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984).
28 See Weisberg, 705 F.2d at 1351.
29 See 5 U.S.C. § 552(a)(3)(A) (requiring that a FOIA request “reasonably describe[] . . . records [sought]”).
30 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.”).
31 See Iturralde v. Comptroller of the Currency, 315 F.3d 311, 315 (D.C. Cir. 2003).
32 Id.
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relevant documents. The record indicates that OMD and IB conducted diligent searches for
relevant records in their offices. OMD searched its files for personnel records for Mr. Kirsch,
and located his official personnel folder (OPF). IB searched for records related to the 1998
Minneapolis ITU Plenipotentiary Conference. In addition, both offices talked to staff
knowledgeable about personnel records and the ITU, or who knew Mr. Kirsch, to determine
whether any responsive records existed and if so where they could be found. These searches
were “reasonably calculated to uncover all relevant documents,”33 and thus were adequate to
satisfy the agency’s obligation under the FOIA. In response to Mr. Kirsch’s AFRs, IB staff
again searched their files and did not locate any of the documents, or types of documents, that he
identifies.34 Moreover, in response to Mr. Kirsch’s reference in AFR 1 to “a copy of then
Chairman Kennard’s September 1998 letter authorizing [his] ‘transfer’” from FCC employment,
OMD staff extended their search to the former Chairman’s files, and were unable to locate any
document meeting Mr. Kirsch’s description. In sum, the methods used by the Commission to
carry out the search were clearly appropriate. We find that the documents referenced in Mr.
Kirsch’s AFRs regarding Request 1, other than the 1998 Kennard letter discussed above, are
outside the scope of his initial Request 1, which sought “any and all documents or
correspondence associated with [his] transfer to the International Telecommunication Union.”35
Mr. Kirsch’s “request(s) to Chairman Genachowski for reemployment or payment of annual
leave” referenced in AFR 1,36 and personnel information referenced in AFR 2, “inter alia, career
tenure, reemployment rights or accrued annual and sick leave,” are neither expressly contained
or referenced in his Request 1, nor evidently related to his employment transfer. 37 Because an
AFR may not raise issues on which staff was not afforded an opportunity to pass, we therefore
reject these particular references by Mr. Kirsch as any basis for seeking review of Decision 1.38
10. We also reject Mr. Kirsch’s reference to Decision 1 personnel-related information in
AFR 2 on a separate and independent ground that it is untimely insofar as it requests review of


33 See Weisberg, 705 F.2d at 1351.
34 A number of the documents referenced in Mr. Kirsch’s AFRs are publicly available. The ITU Constitution as
currently amended, including the 1998 Minneapolis amendments referenced in AFR 2, is available online at
http://www.itu.int/council/groups/stakeholders/Background-Documents/final-acts.doc (retrieved July 25, 2012).
Senate Executive Report 110-228, referenced in AFR 2, is available online at http://www.gpo.gov/fdsys/pkg/CRPT-
110erpt28/html/CRPT-110erpt28.htm (retrieved July 25, 2012). Neither of these documents mentions Mr. Kirsch or
any activities that can be directly attributed to him, based on the information presented in Request 2. We also note
that the ILO decision referenced in AFR 3 is available at http://www.ilo.org/dyn/triblex/triblexmain.fullText?
p_lang=fr&p_judgment_no=2022&p_language_code=EN (retrieved July 24, 2012).
35 See Request 1. As noted previously, OMD sought to clarify the scope of this request and received no response.
See supra n.6.
36 As Mr. Kirsch requests, we will treat his reference to these requests to Chairman Genachowski as a new FOIA
request. See AFR 1. Mr. Kirsch’s request for fee waiver will be addressed by appropriate staff in the context of this
new FOIA request.
37 See AFR 2. The two pages of information drawn from OMD’s database that OMD provided to Mr. Kirsch in
response to Request 1 were responsive because they showed that Mr. Kirsch transferred from the FCC to the State
Department on June 13, 1998. See para. 3 supra. The personal identifying information that OMD redacted from
this document, including Mr. Kirsch’s leave information, was not itself responsive to the request.
38 See 47 C.F.R. § 1.115(c) (“No application for review will be granted if it relies on questions of fact or law upon
which the designated authority has been afforded no opportunity to pass”).
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Decision 1.39 Moreover, to the extent that Mr. Kirsch’s statement in AFR 2 that Decision 1 did
not provide “accrued annual and sick leave” can be read to complain that OMD improperly
redacted this information in its response to Request 1,40 we disagree. Had OMD released this
personal information pursuant to Mr. Kirsch’s FOIA request, it would have been in the public
domain. The redactions were made to protect Mr. Kirsch’s personal privacy. If he wishes to
obtain an unredacted copy of his OPF that would not be publicly available with his personal
information, he may do so pursuant to the Privacy Act and the Commission’s implementing
regulations.41 Mr. Kirsch’s requests to amend his personnel records will be addressed separately,
in accordance with our Privacy Act implementing regulations.42 A FOIA proceeding is not the
appropriate avenue for seeking correction of personnel records.
11. We also reject Mr. Kirsch’s claim that Decision 1 contains “unwarranted disclosure
of personal information, including [his] personal salary history” and thus “violates the Privacy
Act and relevant case law.”43 The information contained in Decision 1, including information
pertaining to Mr. Kirsch’s salary at the time of his transfer to the State Department, was
disclosed fully in accordance with the FOIA and the Privacy Act, government-wide personnel
regulations, and the Commission’s implementing regulations. As OMD stated in Decision 1,
personal-identifying information was redacted from the responsive documents provided to Mr.
Kirsch pursuant to FOIA Exemption 6.44 Mr. Kirsch’s salary at the time of his transfer, however,
was not redacted.45 This information, as well as his salary history throughout his Federal
employment, is among the information in his personnel records that is publicly available.46
Thus, disclosure of this information does not violate the Privacy Act.47
12. In addition, we find nothing indicating that Decision 1 constitutes “retaliation”
against Mr. Kirsch for any reason or is a “bad faith” response to his Request 1.48 As indicated
above, Decision 1 reflects that an adequate search was performed by Commission staff and
responsive documents were located and provided to Mr. Kirsch, fully in accordance with the
FOIA and the Commission’s rules. Mr. Kirsch’s claims of “retaliation” and “bad faith” are


39 See 47 C.F.R. § 1.115(d) (establishing 30-day time limit from date of public notice for filing application for
review of action taken on delegated authority).
40 As noted in para. 3 supra, OMD provided Mr. Kirsch two pages of information drawn from its electronic
database, showing that Mr. Kirsch transferred from the FCC to the State Department on June 13, 1998. OMD
redacted all personal identifying information from this document, including Mr. Kirsch’s leave information. See id.
41 See 5 U.S.C. § 552a; 47 C.F.R. §§ 0.554 – 0.556. To obtain a copy of his OPF, Mr. Kirsch should contact the
Associate Managing Director—Human Resources Management, 445 12th Street, SW., Washington, D.C. 20554.
42 See 47 C.F.R. §§ 0.556, 0.557.
43 AFR 1.
44 5 U.S.C. § 552(b)(6).
45 Decision 1, Attachment.
46 See 5 C.F.R. § 293.311(a)(4) (“Present and past annual salary rates (including performance awards or bonuses,
incentive awards, merit pay amount, Meritorious or Distinguished Executive Ranks, and allowances and
differentials)” among information in personnel records for most Federal employees that is available to the public).
47 Further, even if the Commission had inadvertently released Privacy Act protected information about Mr. Kirsch to
Mr. Kirsch, there would be no cognizable harm to Mr. Kirsch.
48 See AFR 1.
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unsupported, and we therefore reject them as speculative, conclusory, and without merit.
13. We find that the documents referenced in Mr. Kirsch’s AFR 2 regarding Request 2
are outside the scope of his initial Request in that they do not clearly refer to Mr. Kirsch or what
he terms his “successful work” as Secretary of the Credentials Committee and Secretary of the
Editorial Committee at the ITU Plenipotentiary Conference.49 For the same reason discussed
above in the context of AFR 1, i.e., because an AFR may not raise issues on which staff was not
afforded an opportunity to pass, we deny this aspect of AFR 2. Finally, AFR 3 faults the
Commission for not locating “In Re Kirsch, ILO Administrative Judgment 2022 in which the
[ITU] purportedly failed to comply with its own Staff Regulations and Staff Rules” or “other
examples of harassment, intimidation and abuse or ‘mobbing’ by ITU elected and other officials,
including the ILO Administrative Judgments concerning the former Dutch Chief of Personnel.”
Mr. Kirsch provides no reason why the Commission should have copies of these documents
pertaining to outside entities. It was not surprising that the International Bureau failed to find
them after conducting a reasonable search. We accordingly deny AFR 3.

V.

ORDERING CLAUSES

14. ACCORDINGLY, IT IS ORDERED that the applications for review filed by William
J. Kirsch ARE DENIED. Mr. Kirsch may seek judicial review of this action pursuant to 5
U.S.C. § 552(a)(4)(B).50


49 A number of the documents referenced in Mr. Kirsch’s AFRs 2 and 3 are publicly available. The ITU
Constitution as currently amended, including the 1998 Minneapolis amendments referenced in AFR 2, is available
online at http://www.itu.int/council/groups/stakeholders/Background-Documents/final-acts.doc (retrieved July 25,
2012). Senate Executive Report 110-228, referenced in AFR 2, is available online at http://www.gpo.gov/fdsys/pkg/
CRPT-110erpt28/html/CRPT-110erpt28.htm (retrieved July 25, 2012). We also note that the ILO decision
referenced in AFR 3 is available at http://www.ilo.org/dyn/triblex/triblexmain.fullText?plang=fr&p_judgment
_no=2022&p_language_code=EN (retrieved July 24, 2012).
50 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 Mr. Kirsch’s right to pursue litigation.
Mr. Kirsch 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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15. The officials responsible for this action are the following: Chairman Julius
Genachowski and Commissioners Robert McDowell, Mignon Clyburn, Jessica Rosenworcel, and
Ajit Pai.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
8

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