FCC emails with Zachem/Comcast

To Whom It May Concern:

This is a request under the Freedom of Information Act. I hereby request the following records:

All emails or other forms of communication since Sept. 1, 2013 between the below-listed FCC employees and Kathryn Zachem (Kathy_Zachem@Comcast.com).

Please search the emails of the following FCC employees to fulfill this request:
-Tom Wheeler (tom.wheeler@fcc.gov)
-Deborah Ridley (deborah.ridley@fcc.gov)
-Ruth Milkman (ruth.milkman@fcc.gov)
-Kim Mattos (kim.mattos@fcc.gov)
-Drema Johnson (drema.johnson@fcc.gov)
-Jessica Rosenworcel (jessica.rosenworcel@fcc.gov)
-Valery Galasso (valery.galasso@fcc.gov)
-Ajit Pai (ajit.pai@fcc.gov)
-Lori Alexiou (lori.alexiou@fcc.gov)
-Mike O'Rielly (mike.o'rielly@fcc.gov)
-Susan Fisenne (susan.fisenne@fcc.gov)
-William Lake (william.lake@fcc.gov)

I also request that all fees be waived as I am a journalist -- employed by the Boston Globe and MuckRock -- and intend to use any pertinent information to educate the public on the workings of the government, namely the relationship between Comcast employees and employees of the companies they regulate.

In the event that fees cannot be waived, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 20 business days, as the statute requires.

Sincerely,

Todd Feathers

To Whom it May Concern,
I am writing to appeal several redactions in a series of documents that I received on August 18, 2014 in response to my FOIA request to the Federal Communications Commission (tracking number 2014-514), in which I had asked for "All emails or other forms of communication since Sept. 1, 2013 between the below-listed FCC employees and Kathryn Zachem (Kathy_Zachem@Comcast.com)." There were 12 FCC employees listed in my request. I would also like to appeal the FCC's decision to exclude an email attachment that should have been included in the released documents.

First appealed redaction:

Throughout the three sets of documents the FCC provided to me, there are numerous, large redactions with no FOIA exemption given to explain why the information was withheld. Instead, these large blocks of text are obscured by black boxes with white lettering that reads "Not Responsive" in the corner.

To begin with, if an agency intends to withhold a portion of a document that is being released to a requestor, then that agency must justify its decision to withhold that information based on one of the nine exemptions laid out in the Freedom of Information Act. "Not Responsive," is not one of those exemptions. The withheld information appears in the middle of the email chains I requested, indicating that it is part of an email exchange the FCC already considered responsive to my request. Therefore, if the FCC wishes to withhold the redacted portions, the agency must justify its decision based on one of the nine exemptions.

It is obvious that the FCC did not base these redactions on exemptions to the FOIA. Because in other instances of redaction, the agency noted the specific exemption they were citing, but not in the case of the redactions labeled "Not Responsive."

I request that the documents be re-released to me with the redactions labeled "Not Responsive" removed.

Second appealed redaction:

In an email from December 12, 2013, Kathy Zachem sent FCC employees Ruth Milkman, Philip Verveer, and Jonathan Sallet a forwarded copy of a newsletter from Stifel, a lobbying organization. The newsletter is titled "Chairman Wheeler's Recusal Complicates FCC Action on Bell Special Access," and it is redacted in full. The FCC cites FOIA exemption 4.

FOIA exemption 4 protects "trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential." In Public Citizen Health Research Group v. FDA, the US Court of Appeals for the District of Columbia defined "trade secrets" as "a secret, commercially valuable plan, formula, process, or device that is used for the making, preparing, compounding, or processing of trade commodities and that can be said to be the end product of either innovation or substantial effort."

A newsletter from a lobbying company does not meet those standards. To begin with, the newsletter is not secret – it is distributed to multiple companies and other entities. In fact, the FCC had already seen the newsletter by the time Zachem forwarded it to the agency. This is evidenced in FCC employee Ruth Milkman's response to Zachem, in which she says "Yeah we saw – trying to get it corrected."

Secondly, a newsletter is not a valuable plan, formula, etc. for the production of trade commodities. If the newsletter were a "privileged or confidential" plan or formula for a commodity that qualified for FOIA exemption 4, then it would not have been labeled an "industry update" and distributed to untold companies and other organizations.

FOIA exemption 4 also provides protection for documents that contain "commercial or financial information" that is "privileged or confidential." But again, the redacted newsletter is clearly neither privileged nor confidential because it was sent to multiple companies and available to the FCC prior to Zachem's email.

I request that the redactions to the newsletter be removed and the documents be re-sent to me.

Third appealed redaction:

In the third set of documents I received from the FCC, there are two emails redacted in full citing FOIA exemption 6. The first email, from Kathy Zachem of Comcast to Ruth Milkman of the FCC, was sent on January 20, 2014 with the subject line "personal." Milkman's response to Zachem, sent January 21, 2014, is also redacted.

Exemption 6 protects information contained in "personnel and medical files and similar files."

An email from Kathy Zachem, a VP of Comcast, to Ruth Milkman, who is employed by the agency charged with regulating Comcast, is clearly not comparable to a personnel or medical file.

And as the US Court of Appeals for D.C. wrote in National Association of Home Builders v. Norton, when an agency is considering withholding information under FOIA exemption 6 the "presumption in favor of disclosure is as strong as can be found anywhere in the [Freedom of Information Act]."

Finally, the redacted information does pass the final test to qualify information for exemption 6: balancing the individual's right to privacy against the public's right to disclosure.

Ruth Milkman is the chief of staff for FCC Commissioner Tom Wheeler. In large part, her job as a government employee is to assist the commissioner and the FCC in its regulation of major communications companies like Comcast.

The "personal" email exchange between Zachem and Milkman came a month before Comcast announced plans for a major merger with Time Warner – a deal that requires the FCC's approval to go ahead. It is imperative to the operation of an honest and transparent FCC that the public trusts FCC employees to conduct themselves in a professional and objective manner when reviewing proposals that would impact their lives as much as the Comcast/Time Warner merger would.

It is therefore hugely in the public's interest to disclose emails that reveal the close personal relationships top FCC employees share with top Comcast executives.

I request that the redactions to the above-mentioned email exchange be removed.

Appeal of withheld email attachment:

In a November 8, 2013 email Kathy Zachem, of Comcast, sent Ruth Milkman, Diane Cornell, Renee Gregory, Daniel Alvarez, Maria Kirby, Philip Verveer, Gigi Sohn, and Jonathan Sallet an attachment that contained an "industry contact list." That attachment was not included in the responsive documents the FCC sent me, however.

In my original request, I asked for all "emails or other forms of communication" between Zachem and the listed FCC employees. An email attachment is clearly part of an email, and even if it were not, it would still be a form of communication. As such, it is a document that should have been considered responsive to my request and released to me.

I therefore request that the FCC give me the "industry list" attached to the email Zachem sent.
Thank you very much for your consideration, and I look forward to receiving your acknowledgement and eventual ruling on this appeal.

Sincerely,
Todd Feathers

Mr. Senzel,

I received an email from you today regarding FOIA 2014-514, which I appealed on Aug. 19. It appears that the email is blank, however, and I was hoping you would send it again when you have a minute.

Thanks so much for your time,
Todd Feathers

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on July 3, 2014. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number # 2014-514.

Thank you for your help.