net neutrality ig report

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=090004d28175abf8)
* Tracking Number: FCC-2018-000219
* Requester Name: Jason Koebler
* Date Submitted: 12/13/2017
* Request Status: Submitted
* Description: I am requesting documents relating to the FCC's Office of the Inspector General's Investigation Report OIG-B-15-022, “Net Neutrality.” It was closed August 29, 2016. I am requesting any and all memos and correspondence sent within the office of the inspector general regarding this investigation, as well as any correspondence sent between the office of the inspector general, subjects of the investigation, and other Federal agencies. I am also requesting the messages, emails, tweets, and direct messages used to investigate this case, as well as any attachments to those emails or messages.

Dear Mr. Koebler,

Please find our initial response to your request for "documents relating to the FCC's Office of the Inspector General's Investigation Report OIG-B-15-022, "Net Neutrality."" You specifically requested "any and all memos and correspondence sent within the office of the inspector general regarding this investigation, as well as any correspondence sent between the office of the inspector general, subjects of the investigation, and other Federal agencies." Further, you requested "the messages, emails, tweets, and direct messages used to investigate the case, as well as any attachments to those emails or messages."

In our response, we are providing the Report of Investigation (ROI) for OIG-B-15-0022.

As stated in the ROI, OIG investigators assigned to this matter reviewed approximately six-hundred thousand email messages. Most, if not all, of the emails requested would be withheld, in substantial part, pursuant to FOIA exemption 5. 5 U.S.C. § 552(b)(5). Exemption 5 protects certain inter-agency and intra-agency records that are normally considered privileged in the civil discovery context. Exemption 5 encompasses a deliberative process privilege intended to "prevent injury to the quality of agency decisions." NLRB v. Sears Roebuck & Co., 421 U.S. 132, 151 (1975). To fall within the scope of this privilege the agency records must be both predecisional and deliberative. Id. at 151-52. Predecisional records must have been "prepared in order to assist an agency decision maker in arriving at his decision." Formaldehyde Inst. v. Dep't of Health and Human Servs., 889 F.2d 1118, 1122 (D.C. Cir. 1989); see also Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980) ("In deciding whether a document should be protected by the privilege we look to whether the document is . . . generated before the adoption of an agency policy and whether . . . it reflects the give-and-take of the consultative process. The exemption thus covers recommendations, draft documents, proposals, suggestions, and other subjective documents. . . ."). Deliberative records must be such that their disclosure "would expose an agency's decision making process in such a way as to discourage candid discussion within the agency and thereby undermine the agency's ability to perform its functions." Formaldehyde Inst., 889 F.2d at 1122 (quoting Dudman Commc'ns Corp. v. Dep't of the Air Force, 815 F.2d 1565, 1568 (D.C. Cir. 1987).

Further, "memos and correspondence sent within the office of the inspector general regarding this investigation, as well as any correspondence sent between the office of the inspector general, subjects of the investigation, and other Federal agencies" would likely be withheld in substantial part pursuant to Exemption 7(E). Exemption 7(E) protects "records or information compiled for law enforcement purposes [the production of which] would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk a circumvention of the law." 5 U.S.C. § 552(b)(7)(E).

We appreciate the newsworthiness of this information, however, given the voluminous number of documents that would have to be compiled, reviewed and redacted, and limited OIG resources that can be allocated to the matter, the matter will undoubtedly take numerous months to complete. In light of the fact that this burdensome task would yield very few released documents, and may not be completed in a useful timeframe, we ask whether the attached ROI is sufficient, and if it is not, whether you would like to amend your initial request. Would you prefer to amend your request? We will wait to hear from you before we proceed further. Please call or email me if you have any questions.

Sincerely,
Wendy Hadfield
Paralegal Specialist
Office of Inspector General
Federal Communications Commission
445 12th Street, SW
Washington, DC 20554
Office: 202-418-1384
Cell: 202-734-1034
Fax: 202-418-2811
E-mail: Wendy.Hadfield@fcc.gov