Federal Communications Commission

Washington, D.C. 20554

July 26,2016
Mario Truj illo
The Hill

1625 K St., N.W.

Washington, D.C. 20006
Via email to mtrujillothehill.com
Re: FOJA Control No. 20 16-000534
Dear Mr. Trujillo:
This further supplements our initial response' to your Freedom of Information Act
(FOJA) request for the following records related to the L?feline Reform and Modernization Item
that was considered at the Commission's March 31, 2016, open meeting:2
(a) All records of internal and external communications dated March 29-31,
"1.
2016, involving FCC personnel regarding the Lifeline order approved during the March
31 FCC Open Meeting;
(b) All records and other documents regarding Lifeline during those three days
(excluding widely-disseminated or publicly-available sources, such as news articles or
trade press newsletters); and
All records of communication between FCC personnel and any parties with an
2.
email address that ends with "senate.gov " or "house.gov" dated March 29-31, 2016{.]"
You agreed to limit the search for the above-listed documents to: (1) the offices of Chainnan Tom
Wheeler, Ajit Pai, Mignon Clyburn, Michael O'Rielly, and Jessica Rosenworcel; (2) the Wireline
Competition Bureau (WCB); and (3) the Office of Legislative Affairs (OLA).4 You also
requested that "the Office of the Chairman search for any emails, communications, or calendar
entries during the month of March 2016 that reference Lifeline between FCC Chairman Tom
Wheeler or his staff and Jason Furman, Chairman of the Council of Economic Advisers, or Jeff

1 See letter from Elizabeth Lyle, Assistant General Counsel, FCC, to Mario Trujillo (May 11, 2016) (May
11, 2016 Letter).
2
Lifeline and Link Up Reform and Modernization Telecommunications Carriers Eligible for Universal
Service Support Connect America Fund, Third Report and Order, Further Report and Order, and Order on
Reconsideration, 31 FCC Rcd 3962 (2016) (L?feline Reform and Modernization Item or Lfeline Item).

Email from Ryan Yates to Mr. Trujillo (Apr. 14, 2016).

4

Mr. Mario Trujillo

Page 2

Zients, Director of the National Economic Council."5 Your request was granted expedited
processing6 and we advised you that we would be producing records to you on a rolling basis.7
With the exception of OLA, we have completed the search of the offices and bureau
identified above and found a number of documents responsive to your request that we release
here. We will search OLA for responsive documents and produce any responsive records from
that office in a further supplement. The documents we release here include emails8 and Twitter
messages between Commissioners and Commission staff, including staff of the Universal Service
Administrative Company, and: (1) reporters; (2) members of advocacy and policy groups; (3)
congressional staffers; and (4) other parties outside the Commission.
We redacted material from these documents that we 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 to a party other than an agency in litigation with the
agency[.]"9 Exemption 5 encompasses the deliberative process privilege, which is intended to
"prevent injury to the quality of agency decisions." 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."1' The material that we
redact under Exemption 5 includes internal exchanges among Commission staff regarding policy
matters. Disclosure of this material would chill the deliberative process and inhibit the frank and
open discussions between government employees that are necessary for agency decisionmaking.'2
We have also redacted from the material we release today copyrighted publications and
conference call bridge numbers and codes pursuant to FOIA Exemption 4, which protects from
disclosure "trade secrets and commercial or financial information obtained from a person and
privileged or confidential."3 In addition, we have redacted personal email addresses and
personal telephone numbers pursuant to FOJA Exemption 6, which protects from disclosure
information that "would constitute a clearly unwarranted invasion of personal privacy."4 Also,
we are withholding pursuant to FOJA Exemption 6 an email chain between a Commission staff
member and several persons with house.gov or senate.gov email addresses as this email exchange
Id. You also requested the Lifeline "official chain" that Commissioner Ajit Pai referenced in his oral
statement (http://transition.fcc.gov/Daily_Releases/Daily_Business/20 1 6/dbO4O 1/DOC-33 8676A5 .pdf) and
which he quoted from during a subsequent press conference on March 31. We addressed that portion of
your request in the May 11, 2016 Letter (withholding the "official chain" under FOIA Exemption 5, 5
U.S.C. 552(b)(5)).
6 See Letter from Ms. Lyle to Mr. Trujillo (April 14, 2016).
7See May 11, 20l6Letterat 1.

Tinee of the emails are notifications of voice mail messages. We are not at this time providing the voice
mail messages themselves because they contain personal or non-public phone numbers that we are
withholding under FOIA Exemption 6. We are working to determine how to exclude that information.
5 U.S.C. 552(b)(5).

10NL] v. Sears Roebuck & Co., 421 U.S. 132, 151 (1975).
Senate of the Commonwealth of Puerto Rico v. DOJ, 823 F. 2d 574, 585 (D.C. Cir. 1987).
'2See Coastal States Gas Corp. v. Dep 't of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980); L. Lloyd Morgan,
26 FCC Rcd 13823, 13826 (2011) (L. Lloyd Morgan); Rob Evans, 17 FCC Rcd 15146, 15147 (2002).
'3 5 U.S.C. 552(b)(4).

14 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 Rcd 13812, 13816, n.13 (2011) (personal email addresses and
telephone numbers redacted pursuant to Exemption 6).

Mr. Mario Trujillo

Page 3

is purely personal involved arranging for a social event, and does not involve Lifeline. Finally,
we redacted as non-responsive material that is not within the scope of the FOJA request.15
We are also withholding 1,302 pages of material under the deliberative process privilege
of Exemption 5. The withheld documents include emails among Commission staff, Chairman
Tom Wheeler, and the four Commissioners variously discussing: (1) drafts of the Lifeline Reform
and Modernization Item and related draft internal memoranda, involving broad policy matters as
well as minor edits; (2) exparte filings; (3) vote sheets; (4) information regarding the release of
the item; (5) internal meetings; (6) congressional letters regarding and congressional reaction to
Lifeline issues; (7) draft materials in preparation of press and other meetings, including draft
press releases; and (8) press articles relating to Lifeline issues.
The FOIA requires that "any reasonably segregable portion of a record" must be released
after appropriate application of the Act's exemptions.16 The statutory standard requires the
release of any portion of a record that is nonexempt and that is "reasonably segregable" from the
exempt portion. However, when nonexempt information is "inextricably intertwined" with
exempt information, reasonable segregation is not possible.17 We have reviewed the material
redacted and the records withheld to determine if any segregable parts may be released, and
determined there is none.
We also reviewed the records to determine if discretionary release of any of the portions
being redacted or withheld is appropriate.'8 We have determined that the material redacted and
withheld under Exemption 5 is not appropriate for discretionary release because of the harm to
the integrity of the Commission's processes that would result from release of those records.19 The
material that we have determined is exempt from disclosure under FOIA Exemptions 4 and 6 is
not appropriate for discretionary release in light of the commercial and personal privacy interests
involved.20

' See, e.g., Public Employees for Environmental Responsibility, Rocky Mountain Chapter v. United States
Environmental Protection Agency, 978 F. Supp. 955, 965 (D. Cob. 1997) (records not responsive to FOJA
request need not be disclosed) (Public Employees for Environmental Responsibility); see also Michael
Ravnitzky, 16 FCC Rcd 21745, 21747 & n.2 1 (2001) (citing Public Employees for Environmental
Responsibility).
16 5 U.S.C. 552(b) (sentence immediately following exemptions).
'7MeadData Center Inc. v. Dep 't of the Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977).
Memorandum for the Heads of Executive Departments andAgencies, Freedom of Information Act,
74 FR 4683 (2009) (President Obama's memorandum concerning the FOIA); The Freedom of Information
Act (FOIA), available at <http://www.usdoj .gov/agIfoia-memo-march2009.pdf (Attorney General
Holder's FOIA Memo).
19 See Warren Havens, 24 FCC Rcd 12308, 12319 22 (2009) (declining to make discretionary release of
material exempt under deliberative process privilege); see also L. Lloyd Morgan, 26 FCC Rcd 13823,

13826 (2011).

20
US. Department of Justice, Office of Inform ation Policy, FOIA Post, President Obama's FOIA
Memorandum and Attorney General Holder's FOJA Guidelines Creating a "New Era of Open
Government," (2009), available at <http://www.usdoi .gov/oip/foiapost/2009foiapost8.htm >> (recognizing
that discretionary release of records is less likely when the requirements of Exemptions 4 and 6 are met for
withholding records).

Mr. Mario Trujillo

Page 4

You are considered a representative of the news media for purposes of calculating fees
for processing your FOIA request.2' Therefore, you are not charged for search and review time,
and only charged for copying more than 100 pages of records.22 Because we are providing you
with the records electronically, no fees will be assessed for processing your request.
As discussed above, we will provide you with any responsive records from OLA in a
further supplemental letter. If you consider this to be a denial of your FOIA request, you may
seek review by filing an application for review with the Office of General Counsel. An
application for review must be received by the Commission within 30 calendar days of the date of
this letter.23 You may file an application for review by mailing the application to Federal
Communications Commission, Office of General Counsel, 445 l2 St. SW, Washington, DC
20554, or you may file your application for review electronically by e-mailing it to FOJAAppealfcc.gov. Please caption the envelope (or subject line, if via e-mail) and the application
itself as "Review of Freedom of Information Action."
Sincerely,

Elizabeth Lyle
Assistant General Counsel
Office of General Counsel

Enclosures
cc:
FOIA Officer, WCB, OLA

21 See 47 C.F.R. 0.466(a)(7).

22 See 47 C.F.R. 0.470(a)(2).
23 See 47 C.F.R. 0.461(j), 1.115; 47 C.F.R. 1.7 (documents are considered filed with the Commission
upon their receipt at the location designated by the Commission).