FCC Harlem Shake

JPat Brown filed this request with the Federal Communications Commission of the United States of America.
Tracking #

2018-000272, FCC-2018-000624

2018-000272

FCC-2018-000272

Est. Completion Feb. 6, 2018
Status
Awaiting Appeal

Communications

From: JPat Brown

To Whom It May Concern:

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

- All communications (emails, memos, texts, etc) between the FCC and the Daily Caller regarding Chairman Pai's participation in creation of the article
http://dailycaller.com/2017/12/13/ajit-pai-wants-you-to-know-you-can-still-harlem-shake-after-net-neutrality-video/
- Talking points or promotional plans regarding the article

I am journalist who writes extensively about FBI files - https://www.muckrock.com/project/subjects-matter-fbi-files-10/, which have received national and international attention - http://www.dailymail.co.uk/news/article-3219376/Undercover-FBI-agents-spy-annual-Burning-Man-festival-light-ongoing-war-terrorism-use-test-new-intelligence-collection-technology.html

The requested documents will be made available to the general public, and this request is not being made for commercial purposes.

In the event that there are fees, 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,

JPat Brown

From: Federal Communications Commission

This message is to confirm your request submission to the FOIAonline application: View Request. Request information is as follows: (https://foiaonline.regulations.gov:443/foia/action/public/view/request?objectId=090004d281780459)
* Tracking Number: FCC-2018-000272
* Requester Name: JPat Brown
* Date Submitted: 12/26/2017
* Request Status: Submitted
* Description: To Whom It May Concern: This is a request under the Freedom of Information Act. I hereby request the following records: - All communications (emails, memos, texts, etc) between the FCC and the Daily Caller regarding Chairman Pais participation in creation of the article http ://dailycaller.com/20 17/12/1 3/ajit-pai-wants-you-to-know-you-can-still-harlem-shake-after-net-neutralityvideo! - Talking points or promotional plans regarding the article I am journalist who writes extensively about FBI files - https ://www. muckrock. com/project/subj ects-matter-fbi-files- 10/, which have received national and international attention - http://www.dailymail.co . uk/news/article-3 219376/Undercover-FBI-agents-spy-annual-Burning-Man-festival-i ight-ongoing-war-terrorism-use-test-new-intelligence-collection-technology. html The requested documents will be made available to the general public, and this request is not being made for commercial purposes. In the event that there are fees, 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.

From: Federal Communications Commission

Dear Mr. Brown:

Please be advised that, pursuant to 47 C.F.R. § 0.461(g), we are extending the period for responding to your request to February 6, 2018.

Sincerely,

David S. Senzel
Attorney
Office of General Counsel

From: Federal Communications Commission

The request has been rejected by the agency.

From: Federal Communications Commission

Dear Mr. Brown:

Attached is a response to your FOIA request.

Sincerely,

David S. Senzel
Attorney
Office of General Counsel

From: Federal Communications Commission

Correcting address.

From: JPat Brown

I am appealing what is on its face not a good faith application of the foreseeable harm standard. Further, the fact that the agency chose not to release any factual statements from emails, despite factual information not falling under deliberative privilege unless it's inextricably intertwined with the deliberative process, casts doubt on their assertion that "no meaningful non-exempt material can practicably be segregated from the exempt material."

From: Federal Communications Commission

The FOIA appeal FCC-2018-000624 has had its Tracking Number changed to FCC-2018-000624. This is normally due to the appeal being transferred to another agency (for example, EPA to Dept. of Commerce) or to a sub-agency to process it. Additional details for this appeal are as follows:
* Old Tracking Number: FCC-2018-000624
* New Tracking Number: FCC-2018-000624
* Requester Name: JPat Brown
* Date Submitted: 07/04/2018
* Long Description: This is a follow up to request number 2018-000272:I am appealing what is on its face not a good faith application of the foreseeable harm standard. Further, the fact that the agency chose not to release any factual statements from emails, despite factual information not falling under deliberative privilege unless it's inextricably intertwined with the deliberative process, casts doubt on their assertion that "no meaningful non-exempt material can practicably be segregated from the exempt material."

From: Federal Communications Commission

Dear Mr. Brown:

This is to respond to your appeal, in which you argue that we did not apply the foreseeable harm standard in good faith and failed to release segregable factual material. In an effort to informally resolve your appeal, we are providing with the header information from the emails at issue, the disclosure of which would encroach the least on the deliberative process. We reiterate that these emails are completely internal (i.e., are not communications between the FCC and the Daily Caller) and do not contain talking points or promotional plans regarding the video (such as you requested). Rather, the emails reflect a few questions and thoughts about the preparation and release of the video. One email is between the Chairman and staff from Office of the Chairman (OCH) and Office of Media Relations (OMR) and the other email exchange is between the Chairman’s Chief of Staff and other staff from OCH and OMR.

We continue to believe that releasing further material from the emails would cause foreseeable harm. Releasing the contents of the discussions of agency officials concerning the Chairman’s public relations preparation would tend to cause the harm central to the concern of the deliberative process privilege, that of chilling agency’s deliberations by discouraging frank discussion. “The key question in Exemption 5 cases [is] whether the disclosure of materials would expose an agency’s decisionmaking process in such a way as to discourage candid discussion within the agency and thereby undermine the agency’s ability to perform its functions.” Dudman Comms. Corp. v. Dep’t of the Air Force, 815 F.2d 1565, 1568 (D.C. Cir. 1987). Further, the type of discussion involved here falls within the range of subject matter relevant to the deliberative process privilege. Courts have generally found that a range of documents are sufficiently connected to an agency’s “policy” for the privilege to apply, include documents relating to public relations strategy. See Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980), ICM Registry, LLC v. Dep’t of Commerce, 538 F. Supp. 2d 130, 136 (D.D.C. 2008). Finally, we disagree that there are other facts in the emails (apart from the headers) that could be disclosed without revealing the analysis and evaluation of the facts. See Skelton v. USPS, 678 F.2d 35, 38-39 (5th Cir. 1982) (focus should be on whether release would reveal the agency’s evaluative process).

If we do not hear from you to the contrary within 10 business days, we will assume that you wish to withdraw your appeal.

Sincerely,

David S. Senzel

Attorney

Office of General Counsel

From:

Mr. Senzel,
Thank you for you response. This is formal notice I do not wish to withdraw
my appeal.
--
JPat Brown
MuckRock.com <http://Muckrock.com> Twitter
<https://twitter.com/resentfultweet>
m 504.400.4717 o 617.299.1832.

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