Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Wednesday, June 18, 2008

FCC Denies Media Request For Inspection of Records

The FCC has denied John Dunbar of the Associated Press's request "for a copy of the Second Report and Order regarding the service rules for the 700 megahertz auction . . . as approved by the Commission on July 31, 2007, prior to editorial revisions." The agency determined that "...[t]he deliberative process included in FOIA Exemption 5 permits the Commission to withhold materials that both are predecisional and reflect the agency’s consultative process. The Bureau correctly concluded that the draft submitted to the Commission for the July 31, 2007 vote was a predecisional deliberative document properly withheld under FOIA Exemption 5.  When the Commission votes to adopt an item at an open meeting, the Commission’s deliberations concerning the item are not at an end.  Following adoption of an item, the Commissioners may continue to consider possible edits to the item until all Commissioners in the majority agree on the language of the draft to be released.  This practice is consistent with the practice of other agencies as confirmed by the courts. Thus, the fact that the Commission voted at the July 31, 2007 meeting to adopt the draft report and order does not, as Dunbar claims, make the draft a final, decisional document which would not be protected from release by Exemption 5.  Further, it is the Commission’s usual practice to withhold draft decisions that are subject to continued deliberations pursuant to FOIA Exemption 5 to protect the deliberative process of the agency. We decline to depart from that practice here.  We also disagree with Dunbar’s contention that “not releasing the text of the rule at the meeting is detrimental to the public interest.” In fact, the final editorial process results in well thought-out decisions of a higher quality. Release of the item still in draft form, followed by a final version after all post-adoption editing is complete, could result in public confusion and would be contrary to the public interest...."

The agency also declined to released any "severable" part of the document voted on at the open meeting. "There are some factual statements in the draft item, but these materials are inextricably intertwined with the deliberative process portions of the records and cannot be practicably segregated and released.  Our review of the draft confirms that it would be impractical to segregate any factual or non-deliberative portions of the record withheld by the Bureau."

Read the entire Memorandum Opinion and Order here.

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