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  Federal Communications Commission Washington, D.C. 20554 November 7, 2014 VIA ELECTRONIC MAIL Jason Leopold Re: Freedom oflnformation Act Request Control No. 2014-400 Dear Mr. Leopold: This letter is a further response to your Freedom of Information Act (FOIA) request, identified by FCC Control No. 2014-400, which, as revised, seeks records of internal and external communications involving Commission personnel and regarding open Internet/net neutrality during the period February 1, 2014 to May 15, 2014, excluding any publicly available records. As discussed more fully below, we are further granting your request in part and denying it in part by providing you with an additional 406 pages of documents in response to your request. We have redacted certain information in these documents that is not responsive to your request or that falls within the scope ofFOIA Exemptions 4, 5 and 6. 1 Also in this response, we are denying your request in part by determining to withhold additional documents in their entirety, based on FOIA Exemptions 4, 5 and 6? In making this determination, Commission staff reviewed approximately 4,600 separate records, including approximately 3,000 emails, of varying size identified as responsive to your request. In addition to emails, these records comprise internal drafts, memoranda, charts, outlines, notes, outside publications and filings in Commission dockets. We are still processing an additional set of records and will attempt to provide you with a final response to your request by November 14, 2014. Discussion FOIA Exemption 4 Exemption 4 to the FOIA applies to trade secrets and commercial or financial information obtained from a person and privileged or confidentia1. 3 Pursuant to Exemption 4, we have redacted from the attached, or are withholding in their entirety, copyrighted or otherwise 1 5 U.S.C. §§ 552(b)(4), 552(b)(5) and 552(b)(6). 2 Id 3 5 u.s.c. §§ 552(b)(4).  proprietary materials relating to the topic of open Internet. Also pursuant to Exemption 4, we have redacted from certain meeting schedulers access codes and call-in numbers issued by the Commission's telecommunications provider. We find that these materials constitute commercial or financial information the release of which would cause competitive harm to the parties creating them. FOIA Exemption 5 FOIA Exemption 5 protects from disclosure 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. 4 Determining availability by law is governed by whether or not the documents or information are normally privileged in the civil discovery context 5 Exemption 5 therefore covers communications that are protected by legal privileges, such as the attorney-client privilege, attorney work-product privilege, or communications reflecting the agency's deliberative process (e.g., internal recommendations and drafts of agency decisions). 6 Records of internal communications are privileged in the civil discovery context under the deliberative-process privilege to the extent that they reflect pre-decisional, deliberative discussions that lead to a formal decision, where disclosure of such information would harm the deliberative process. 7 The records, and portions of records, that we are withholding on the basis of Exemption 5 include inter and intra-agency drafts, emails, outlines, memoranda, charts, outlines, notes and other documents that reflect the agency's deliberative process in connection with the open Internet rulemaking. We conclude that release of these records would have the effect of inhibiting the free exchange of ideas within the agency that the deliberative process privilege is designed to protect 8 Consequently, we find that these records fall within the scope of the deliberative-process privilege and are exempt from disclosure under FOIA Exemption 5. We are withholding them on that basis. FOIA Exemption 6 Exemption 6 to the FOIA permits the Commission to withhold information in order to protect individuals' personal privacy. 9 Pursuant to this exemption, we have redacted from the attached records individual contact information, including personal telephone numbers and email addresses. We have also redacted certain names and statements of a personal or business nature that are unrelated to open Internet or GN Docket 14-28. We find that there are substantial 4 5 u.s.c. § 552(b)(5). 5 NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975); see FTCv. Grolier Inc., 462 U.S. 19,26 (1983); Martin v. Office of Special Counsel, 8 I 9 F.2d I I 8 I (D.C. Cir. I 987); see also Attorney General Memorandum for Heads of All Federal Departments and Agencies Regarding the Freedom of Information Act (Oct. 12, 2001), reprinted in FOIA Post (posted I 0/I 5/0 I) (highlighting importance of protecting privileged information). 6 d. 7 See e.g. Nat' Wildlife Fed'n v. U.S. ForestServ., 861 F.2d I I 14, I I 19 (9th Cir. 1988) ( [T]he ultimate objective of exemption 5 is to safeguard the deliberative process, not the paperwork generated in the course of that process. ); Schell v. HHS, 843 F.2d 933, 940 (6th Cir. 1988) ( Because Exemption 5 is concerned with protecting the deliberative process itself, comts now focus less on the material sought and more on the effect of the material's release. ). 8 See, e.g., Kiddv. DOJ, 362 F. Supp. 2d 291,296 (D.D.C. 2005). 9 5 U.S.C. § 552(b)(6) (Exemption 6 protects records if their disclosure would constitute a clearly unwananted invasion of personal privacy ). 2  privacy interests at stake in connection with this information and that releasing it would not serve the public interest. We therefore find that the disclosure of this information would constitute an unwarranted invasion of personal privacy and we are withholding it on that basis. 10 Segregation/Review for Discretionary Release The redactions made to the records released to you are consistent with our responsibility under the FOIA to review records to determine if any portions can be further segregated and released. 11 We have determined that no additional materials may be segregated and released. Finally, we have reviewed the withheld documents, and portions of documents, to determine if discretionary release of any of them is appropriate. 12 Even when particular information falls within the scope of a FOIA exemption, federal agencies generally are afforded the discretion to release the information on public interest grounds. 13 Based on our review, we do not discern any overriding public interest in releasing the material that we have determined is exempt from disclosure under FOIA Exemptions 4, 5, and 6, given the substantial competitive harm, harm to the integrity of the Commission's processes, or harm to the privacy interests at stake, respectively, that would result from release of those records. 14 Pursuant to Section 0.461(j) ofthe Commission's rules, you may file an application for review of this decision with the Commission's Office of General Counsel within 30 days ofthe date of this letter. I 5 Any such application must contain Review of Freedom of Information Act Action in its caption and on the transmitting envelope,I 6 and should reference FOIA Control Number 2014-400. Sincerely, Wireline Competition Bureau Federal Communications Commission IO See Moore·v. Bush, 601 F. Supp. 2d 6, 13-14 (D.D.C. 2009) and Electronic Frontier Foundation, 26 FCC Red 13812, 13816, n. 13 (201 I) (personal email addresses and telephone numbers redacted pursuant to Exemption 6). II 5 USC§ 552(b). IZ See Memorandum for the Heads of Executive Departments and Agencies, Freedom of nformation Act, 74 FR 4683 (2009) (President Obama's memorandum concerning the FOIA); The Freedom of nformation Act (FOJA), available at <http://www.usdoj.gov/ag/foia-memo-march2009.pdt> (Attorney General Holder's FOIA Memo). See also Reporters comm. For Freedom ofthe Press, 489 U.S. 749,773 (1989) ( the purpose [ofFOIA] ... is not fostered by disclosure of information about private citizens that is accumulated in various governmental files but that reveals little or nothing about an agency's own conduct ). I3 Examination of Current Policy Concerning the Treatment of Confidential Information Submitted to the Commission, 13 FCC Red 24816, 24818 (1998), citing Chrysler Corp., 441 U.S. 28 I, 292-94 (1979). I4 See Warren Havens, 24 FCC Red 12308, 12319 22 (2009) (declining to make discretionary release of material exempt under deliberative process privilege); see also L. Lloyd Morgan, 26 Red 13823, 13826 (201 1). I5 See 47 C.F.R. § 0.4610). IG d. 3  cc: FOIA Officer, FCC 4


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