FCC emails with Zachem/Comcast

Todd Feathers filed this request with the Federal Communications Commission of the United States of America.
Tracking # 2014-514
Status
Rejected

Communications

From: Todd Feathers

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

From: Stephanie Kost

Dear Mr. Feathers:

This acknowledges receipt of your Freedom of Information Act (FOIA) request filed with the Federal Communications Commission (FCC). Your request has been assigned FOIA Control number 2014-514. Agencies are allowed 20 working days to respond to your request, extending this period for an additional 10 working days under certain circumstances. See 5 U.S.C. § 552(a)(6)(A)(i) and 5 U.S.C. § 552(a)(6)(B)(i). We anticipate responding to your request on 8/4/14. If additional time is needed to respond to your request you will be notified.

If you have any questions concerning this notice, please call the FOIA Office at: (202) 418-0440.

Sincerely,

FCC FOIA Office

From: Laurence Schecker

Dear Mr. Feathers:

The response to your Freedom of Information Act (FOIA) request, FOIA Control No. 2014-514, is due August 4, 2014. Pursuant to 47 C.F.R. 0.461(g)(1)(i) and (iii), we are extending the date for responding to your request by 10 days, to August 18, 2014, because "it is necessary to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request" and "It is necessary to consult . . . . among two or more components of the Commission having substantial subject matter interest therein." Thank you for your understanding.

Sincerely,

Larry Schecker

Laurence H. Schecker
Special Counsel
Office of General Counsel
Administrative Law Division
Federal Communications Commission
445 - 12th Street, SW
Washington, DC 20554
202.418.1717
Laurence.Schecker@FCC.gov<mailto:Laurence.Schecker@FCC.gov>
P Please consider the environment before printing this email or attachments. Live Green!

From: David Senzel

Dear Mr. Feathers:

The attached is the second installment of the documents referenced in the response.

Sincerely,

David S. Senzel
Attorney
Office of General Counsel
Federal Communications Commission

  • FOIA 2014-514 -- Feathers -- Documents Set 3_Redacted optimized

From: David Senzel

Dear Mr. Feathers:

The attached is the Commission's response to your Freedom of Information Act request. Also attached is the first installment of the documents referenced in the response.

Sincerely,

David S. Senzel
Attorney
Office of General Counsel
Federal Communications Commission

From: 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

From: David Senzel


From: 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

From: David Senzel

Dear Mr. Feathers:

I am resending at your request.

David Senzel

From: David Senzel
Sent: Monday, September 15, 2014 4:00 PM
To: 'minnickd@stifel.com'
Subject: FOIA No. 2014-514 (Todd Feathers) -- disclosure of Stifel Industry Update

David M. Minnick, Esq.
General Counsel
Stifel Financial Corp.
One Financial Plaza
501 North Broadway
St. Louis, MO 63102

Re: FOIA Control No. 2014-514 (Todd Feathers)

Dear Mr. Minnick:

The Federal Communications Commission (FCC) has received the attached request under the Freedom of Information Act (FOIA) from Todd Feathers of MuckRock News. The request seeks emails and other forms of communications between several named officials of the FCC and Kathy Zachem, a vice-president of Comcast Corporation. Among the documents responsive to this request is the attached Stifel "Industry Update," dated December 12, 2013, titled "Chairman Wheeler's Recusal Complicates FCC Action on Bell Special Access Review." The document was attached to an email between Ms. Zachem and an FCC official.

Pursuant to 47 C.F.R. § 0.461(d)(3), we request that Stifel indicate by September 29, 2014 whether it has an objection to disclosure of this document to the FOIA requester. If Stifel objects to disclosure, it should provide a detailed written statement specifying the grounds for withholding any portion of it. We will serve a copy of the response on the FOIA requester, who will be given an opportunity to reply. If Stifel does not respond, we will consider it to have no objection to disclosure.

Please feel free to contact me with any questions.

Thank you for your cooperation.

Sincerely,

David Senzel
Attorney
Administrative Law Division
Office of General Counsel

Attachments

From: MuckRock.com

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.

From: David Senzel

Dear Mr. Feathers:

This is to update you on the status of the application for review (AFR) you filed concerning FOIA No. 2014-514. We are disclosing to you two of the documents you discuss in your AFR. These are attached. We do so under the authority granted in 47 C.F.R. § 0.461 Note to (i) and (j) to informally resolve outstanding issues raised in an AFR.

We are releasing the copyrighted Stifel newsletter, inasmuch as Stifel has indicated to us that it has no objection to disclosure. We are also releasing the industry contacts list that was attached to an email that was disclosed to you and was inadvertently omitted.

As to the other issues raised in your AFR, these will be addressed by the full Commission. At this time, an item for Commission consideration is being prepared by the Office of General Counsel.

Sincerely,

David S. Senzel
Attorney
Administrative Law Division
Office of General Counsel

From: David Senzel

Dear Mr. Feathers:

This is to further update you on the status of the application for review (AFR) you filed concerning FOIA No. 2014-514. As we did before, we are disclosing to you additional material discussed in your AFR. It is contained in the attached file. We do so under the authority granted in 47 C.F.R. § 0.461 Note to (i) and (j) to informally resolve outstanding issues raised in an AFR.

Our further review indicates that an email from Ruth Milkman to Kathryn Zachem dated January 21, 2014 was erroneously redacted under Exemption 6. We have now determined that disclosure of the email would not constitute an unwarranted invasion of personal privacy. We have also found an instance in which emails not involving Kathryn Zachem were erroneously redacted as not responsive from an otherwise responsive email chain.

As to the other issues raised in your AFR, these will be addressed by the full Commission. At this time, an item for Commission consideration is being reviewed.

Sincerely,

David S. Senzel
Attorney
Administrative Law Division
Office of General Counsel

Privileged FCC Document
Non-Public: For Internal Use Only
Attorney Work Product of David S. Senzel

  • FOIA 2014-514 -- Feathers -- Documents Supplement_Redacted

From: David Senzel

Dear Mr. Feathers:

Please be advised that the Commission has released the following order ruling on your application for review. https://apps.fcc.gov/edocs_public/attachmatch/FCC-15-33A1.pdf

Sincerely,

David S. Senzel
Attorney
Federal Communications Commission

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