Federal Communications Commission

Washington, D.C. 20554

February 9, 2015

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.
In our November 26, 2014 response, we explained that under our rules, we are required to
consult with NTIA, the Department of State and the White House concerning the disposition of
these email exchanges, 1 and that we would provide you with a supplemental response upon
completion of the consultation process
Although we have not completed the consultation process with the Department of State,
we have completed the consultation process with NTIA and the White House. As a result of that
consultation, we are releasing an email exchange among Larry Strickling (Associate
Administrator ofNTIA), Tom Power (Office of Science and Technology Policy (OSTP), White
House), Ross David Edelman (OSTP), and Chairman Wheeler. These records have been
redacted pursuant to FOIA exemptions 5 and 6 which are consistent with those recommended by
NTIA and the White House? We are also releasing an email exchange between Tom Power and
Chairman Wheeler (which includes an email exchange among FCC staff and Chairman Wheeler)
and an email exchange between John Podesta and Chairman Wheeler (which includes an email
exchange among Jeffrey Zients (Executive Office ofthe President (EOP), White House), Jason
Furman (EOP, White House), and Tom Power). These documents also include redactions under
Exemptions 5 and 6 consistent with those recommended by the White House. 3
We redacted material determined to be exempt under FOIA Exemption 5, which applies
to "inter-agency and intra-agency memorandums or letters which would not be available by law
1

See 47 C.F.R. 0.461(f)(2)(i) (consultation with interested other agencies).

See email from Nicholas McQuaid to Joanne Wall (Jan. 29, 2015) (January 29, 2015 White House Email); letter
from Kathy D. Smith, Chief Counsel, NTIA, U.S. Department of Commerce, to Elizabeth Lyle, Assistant General
Counsel, FCC (Dec. 31, 2014).
3
See January 29, 2015 White House Email.
2

to a party other than an agency in litigation with the agency[.]"4 Exemption 5 encompasses the
deliberative process privilege, which is intended to "prevent injury to the quality of agency
decisions." 5 To fall within the scope of the deliberative process privilege encompassed by
Exemption 5, records must be both pre-decisional and deliberative, "[reflecting] the give-andtake of the consultative process." 6 Disclosure ofthis material would chill the deliberative
process and inhibit the frank and open discussions between government employees that are
necessary for agency decision-making. 7
We have also redacted personal email addresses pursuant to FOIA Exemption 6, which
protects from disclosure information that "would constitute a clearly unwarranted invasion of
personal privacy." 8 Among the information redacted pursuant to Exemption 6 is the Chairman's
personal email address, which is identified in the attached by two asterisks (i.e.,"**").
The redactions we have made are consistent with our responsibility under the FOIA to
review responsive records to determine if any segregable portions can be released. 9 We also
reviewed the withheld records to determine if discretionary release of any of the portions being
withheld is appropriate. 10 The material that we have determined is exempt from disclosure under
FOIA Exemption 6 is not appropriate for discretionary release in light of the personal privacy
interests involved. 11 We also do not discern any overriding public interest in releasing the
records that we have determined are exempt from disclosure under FOIA Exemption 5 given the
harm to the integrity of the Commission's processes that would result from release of those
records. 12
We will provide you with a further supplemental response addressing the remaining
documents at issue once we have completed the consultation process with the Department of
State.

5 u.s.c. 552(b)(5).
NLRB v. Sears Roebuck & Co., 421 U.S. 132, 151 (1975).
6
Senate of the Commonwealth ofPuerto Rico v. DOJ, 823 F. 2d 574, 585 (D.C. Cir. 1987).
7
See Coastal States Gas Corp. v. Dep 't ofEnergy, 617 F.2d 854, 866 (D.C. Cir. 1980); L. Lloyd Morgan, 26 FCC
Red 13823, 13826 (20 11) (L. Lloyd Morgan); Rob Evans, 17 FCC Red 15146, 15147 (2002).
8
5 U.S.C. 552(b)(6) (Exemption 6); see also Moore v. Bush, 601 F. Supp. 2d 6, 14 (D.D.C. 2009) and Electronic
Frontier Foundation, 26 FCC Red 13812, 13816, n.13 (2011) (personal email addresses and telephone numbers
redacted pursuant to Exemption 6).
9
5 U.S.C. 552(b) (sentence immediately following exemptions).
10
See Memorandum for the Heads ofExecutive Departments and Agencies, Freedom ofInformation Act, 74 FR
4683 (2009) (President Obama's memorandum concerning the FOIA); The Freedom ofInformation Act (FOIA),
available at <http://www.usdoj.gov/ag/foia-memo-march2009.pdf> (Attorney General Holder's FOIA Memo).
11
See US. Department ofJustice, Office ofInformation Policy, FOIA Post, President Obama's FOIA Memorandum
and Attorney General Holder's FOIA Guidelines Creating a "New Era of Open Government," (2009), available at<
http://www.usdoj.gov/oip/foiapost/2009foiapost8.htm> >(recognizing that discretionary release of records is less
likely when the requirements of Exemption 6 are met for withholding records).
12
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 FCC Red 13823, 13826 (2011).
4

You may file an application for review ofthis decision with the Commission's Office of
General Counsel within 30 days of the date of this letter. 13 Any such application must contain
"Review of Freedom of Information Act Action" in its caption and on the transmitting
envelope, 14 and should reference FOIA Control Number 2014-400.

Chief of Staff
Wireline Competition Bureau
Federal Communications Commission
cc:

FOIA Office, FCC

Chief Counsel, NTIA, U.S. Dep't of Commerce
FOIA Officer, Office of Counsel to the President, The White House

13

See 47 C.F.R. 0.4610).

14

!d.

from:
To:
Subject:
Date:

RE: Stormy weather

Wednesday, May 14, 2014 10:38:17 A1'1

(b){5)

-----Original Message----From: Larry Strickling [mailto:l Stricl<ling@ntio.dor:.gQIL]

Sent: Wednesday, May 14, 2014 10:18 AM

...lllllllllllllllllllllll

Subject: RE: Stormy weather

ina! Messa"""---Fro m:
[ma.lJ.!:Q.
Sent: onday, May 12, 014 :09 AM
To:
Larry Strickling; 'Ross_D_Edelman@
Cc: Ruth Milkman
Subject: Re: Stormy weather
Operators are standing by.
Just let us know when
T

----- Original Message ----From: Power, Tom [maHto:Thomns C Power@ (b) (6)
'
Sent: Sunday, May 11, 2014 10:55 PM
To:. 'Larry StriCkling' <Lstrickling@ntia.doc.gov>; Edelman, R. David
< Ross_D_Edelman@ (b) (6)
Cc: Ruth Milkman
Subject: Stormy weather
Alas, Larry is stranded in Chicago due to weather and will not be back in time for lunch tomorrow. Not
that we would f1ave had much to talk about. We will have to reschedule. Enjoy the week!
Tom

From:
To:

Subject:
Date:

Ruth f.lm:man; loqathAn SaliN; Philip Vt>D'Qo/i Shannon Gilson; Gi9l...S!2!mi Donie! Alvorez

FW: FlNALNCfA

Tuesday, April 29, 2014 6:01:42 Pl>l

-----Original Message-----

From: Power, Torn

Sent: Tuesday, April 29, 2014 04:51 PM Eastern Standard Time

To:.

SubJect: Re: FINAL NCfA

Th;:mk.s. Strong anrl cleM.

From: .

Sent: ru'esday,

To: Power, Tom

......
PM

Subject: Fw: FINAL NCTA

This blog went out this afternoon, f.YI.

From: Shannon Gilson

Sent: Tuesday, April 29, 2014 03:10 Prv1
To:. Ruth Milkman; Philip Verveer; Jonathan Sallet; Gigi Sohn; Daniel Alvarez; Julie Veach; Daniel
Alvarez; Sara Morris
Subject: RE: FINAL NCTA
r:inal blog post attached.

From:.
Sent: Tuesday, April 29, 2014 3:08PM
To: Ruth Milkman; Philip Verveer; Jonathan Sallet; Gigf Sohn; Shannon Gilson; Daniel Alvarez; Julie
Veach; Daniel Alvarez; Sara Morris
SUbject: FINAL NCTA

From:
To:
Subject:
Date:

If

Yes. I did with a statement similar to what I emailed you.

T
----- Original Message ----From: Podesta, John [ r(l o
rlsti'llal (b) (6)
Sent: Wednesday/ April 23, 2014 10:31 PM

To:.

Subject: Re: (b}(5}

Brutal story. Somebody going on the record to push back?
----inal M e s s
----""e
From:
[mailt.Q.
J
Sent: e nesday, pn
,
14 10:22 Pl\1
To: Podesta, John
Subject: Fw: (b) (5)
JonSorry, should have had you on first email