Federal Communications Commission Washington, D.C. 20554

Jason Leopold

February 9, 2015

Re: Freedom oflnformation Act Request Control No. 2014-400

Dear Mr. Leopold:

This letter is a further response to your Freedom of Information Act (FOIA) request, identified by FCC Control No. 2014-400, which, as revised, seeks records of internal and external communications involving Commission personnel and regarding open Internet/net neutrality during the period February 1, 2014 to May 15, 2014, excluding any publicly available records.

In our November 26, 2014 response, we explained that under our rules, we are required to consult with NTIA, the Department of State and the White House concerning the disposition of these email exchanges, 1 and that we would provide you with a supplemental response upon completion of the consultation process

Although we have not completed the consultation process with the Department of State, we have completed the consultation process with NTIA and the White House. As a result of that consultation, we are releasing an email exchange among Larry Strickling (Associate Administrator ofNTIA), Tom Power (Office of Science and Technology Policy (OSTP), White House), Ross David Edelman (OSTP), and Chairman Wheeler. These records have been redacted pursuant to FOIA exemptions 5 and 6 which are consistent with those recommended by NTIA and the White House? We are also releasing an email exchange between Tom Power and Chairman Wheeler (which includes an email exchange among FCC staff and Chairman Wheeler) and an email exchange between John Podesta and Chairman Wheeler (which includes an email exchange among Jeffrey Zients (Executive Office ofthe President (EOP), White House), Jason Furman (EOP, White House), and Tom Power). These documents also include redactions under Exemptions 5 and 6 consistent with those recommended by the White House.3

We redacted material determined to be exempt under FOIA Exemption 5, which applies to "inter-agency and intra-agency memorandums or letters which would not be available by law

1 See 47 C.F.R. § 0.461(f)(2)(i) (consultation with interested other agencies). 2 See email from Nicholas McQuaid to Joanne Wall (Jan. 29, 2015) (January 29, 2015 White House Email); letter from Kathy D. Smith, Chief Counsel, NTIA, U.S. Department of Commerce, to Elizabeth Lyle, Assistant General Counsel, FCC (Dec. 31, 2014). 3 See January 29, 2015 White House Email.

to a party other than an agency in litigation with the agency[.]"4 Exemption 5 encompasses the deliberative process privilege, which is intended to "prevent injury to the quality of agency decisions."5 To fall within the scope of the deliberative process privilege encompassed by Exemption 5, records must be both pre-decisional and deliberative, "[reflecting] the give-and-take of the consultative process."6 Disclosure ofthis material would chill the deliberative process and inhibit the frank and open discussions between government employees that are necessary for agency decision-making. 7

We have also redacted personal email addresses pursuant to FOIA Exemption 6, which protects from disclosure information that "would constitute a clearly unwarranted invasion of personal privacy."8 Among the information redacted pursuant to Exemption 6 is the Chairman's personal email address, which is identified in the attached by two asterisks (i.e.,"**").

The redactions we have made are consistent with our responsibility under the FOIA to review responsive records to determine if any segregable portions can be released.9 We also reviewed the withheld records to determine if discretionary release of any of the portions being withheld is appropriate. 10 The material that we have determined is exempt from disclosure under FOIA Exemption 6 is not appropriate for discretionary release in light of the personal privacy interests involved. 11 We also do not discern any overriding public interest in releasing the records that we have determined are exempt from disclosure under FOIA Exemption 5 given the harm to the integrity of the Commission's processes that would result from release of those records. 12

We will provide you with a further supplemental response addressing the remaining documents at issue once we have completed the consultation process with the Department of State.

4 5 u.s.c. § 552(b)(5). 5 NLRB v. Sears Roebuck & Co., 421 U.S. 132, 151 (1975). 6 Senate of the Commonwealth of Puerto Rico v. DOJ, 823 F. 2d 574, 585 (D.C. Cir. 1987). 7 See Coastal States Gas Corp. v. Dep 't of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980); L. Lloyd Morgan, 26 FCC Red 13823, 13826 (20 11) (L. Lloyd Morgan); Rob Evans, 17 FCC Red 15146, 15147 (2002). 8 5 U.S.C. § 552(b)(6) (Exemption 6); see also Moore v. Bush, 601 F. Supp. 2d 6, 14 (D.D.C. 2009) and Electronic Frontier Foundation, 26 FCC Red 13812, 13816, n.13 (2011) (personal email addresses and telephone numbers redacted pursuant to Exemption 6). 9 5 U.S.C. § 552(b) (sentence immediately following exemptions). 10 See Memorandum for the Heads of Executive Departments and Agencies, Freedom of Information Act, 7 4 FR 4683 (2009) (President Obama's memorandum concerning the FOIA); The Freedom of Information Act (FOIA), available at <http://www.usdoj.gov/ag/foia-memo-march2009.pdf> (Attorney General Holder's FOIA Memo). 11 See US. Department of Justice, Office of Information Policy, FOIA Post, President Obama's FOIA Memorandum and Attorney General Holder's FOIA Guidelines Creating a "New Era of Open Government," (2009), available at< http://www.usdoj.gov/oip/foiapost/2009foiapost8.htm> >(recognizing that discretionary release of records is less likely when the requirements of Exemption 6 are met for withholding records). 12 See Warren Havens, 24 FCC Red 12308, 12319 22 (2009) (declining to make discretionary release of material exempt under deliberative process privilege); see also L. Lloyd Morgan, 26 FCC Red 13823, 13826 (2011).

2

You may file an application for review ofthis decision with the Commission's Office of General Counsel within 30 days of the date of this letter. 13 Any such application must contain "Review of Freedom of Information Act Action" in its caption and on the transmitting envelope, 14 and should reference FOIA Control Number 2014-400.

Chief of Staff Wireline Competition Bureau Federal Communications Commission

cc: FOIA Office, FCC Chief Counsel, NTIA, U.S. Dep't of Commerce FOIA Officer, Office of Counsel to the President, The White House

13 See 47 C.F.R. § 0.4610).

14 !d.

3

from: To: Subject: RE: Stormy weather Date: Wednesday, May 14, 2014 10:38:17 A1'1

(b){5) .

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-----Original Message-----From: Larry Strickling [mailto:l Stricl<ling@ntio.dor:.gQIL] Sent: Wednesday, May 14, 2014 10:18 AM

... lllllllllllllllllllllll Subject: RE: Stormy weather

ina! Messa"""·----Fro m : [ma.lJ.!:Q. Sent: onday, May 12, 014 :09 AM To: Larry Strickling; 'Ross_D_Edelman@ Cc: Ruth Milkman Subject: Re: Stormy weather

Operators are standing by.

Just let us know when

T

----- Original Message -----(b) (6) ' From: Power, Tom [maHto:Thomns C Power@

Sent: Sunday, May 11, 2014 10:55 PM To:. 'Larry StriCkling' <Lstrickling@ntia.doc.gov>; Edelman, R. David < Ross_D _Edelman@ (b) (6) Cc: Ruth Milkman Subject: Stormy weather

Alas, Larry is stranded in Chicago due to weather and will not be back in time for lunch tomorrow. Not that we would f1ave had much to talk about. We will have to reschedule. Enjoy the week!

Tom

0

From: To: Subject: Date:

-Ruth f.lm:man; loqathAn SaliN; Philip Vt>D'Qo/i Shannon Gilson; Gi9l...S!2!mi Donie! Alvorez FW: FlNALNCfA Tuesday, April 29, 2014 6:01:42 Pl>l

-----Original Message-----From: Power, Torn Sent: Tuesday, April 29, 2014 04:51 PM Eastern Standard Time To:. SubJect: Re: FINAL NCfA

Th;:mk.s. Strong anrl cleM.

From: •. ..... . Sent: ru'esday, PM To: Power, Tom Subject: Fw: FINAL NCTA

This blog went out this afternoon, f.YI.

T

From: Shannon Gilson Sent: Tuesday, April 29, 2014 03:10 Prv1 To:. Ruth Milkman; Philip Verveer; Jonathan Sallet; Gigi Sohn; Daniel Alvarez; Julie Veach; Daniel Alvarez; Sara Morris Subject: RE: FINAL NCTA

r:inal blog post attached.

From:. Sent: Tuesday, April 29, 2014 3:08PM To: Ruth Milkman; Philip Verveer; Jonathan Sallet; Gigf Sohn; Shannon Gilson; Daniel Alvarez; Julie Veach; Daniel Alvarez; Sara Morris SUbject: FINAL NCTA

From: If To: Subject: Date:

Yes. I did with a statement similar to what I emailed you.

T

----- Original Message -----From: Podesta, John [ r(l o· rl·sti'llal Sent: Wednesday/ April 23, 2014 10:31 PM To:. Subject: Re: (b}(5}

(b) (6) .

Brutal story. Somebody going on the record to push back?

----- inal Mess""e -----From: [mailt.Q. J Sent: e nesday, pn , 14 10:22 Pl\1 To: Podesta, John Subject: Fw: (b) (5) .·

Jon-

Sorry, should have had you on first email

T

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