April 26, 2017 VIA ONLINE PORTAL Managing Director Attn: FOIA Request Federal Communications Commission 445 12 Street SW, Room 1-A836 Washington, DC 20554 Online Request via FOIAonline th Re: Expedited Freedom of Information Act Request Dear Freedom of Information Act Officer: Pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552 et seq. and Federal Communications Commission (FCC) implementing regulations, 47 C.F.R. Part 0, American Oversight makes the following request for records. Shortly after taking office, President Trump elevated Commissioner Ajit Pai to the post of Chairman of the FCC. Since that time, Mr. Pai has initiated an aggressive agenda, withdrawing or rolling back regulatory actions taken by the FCC during the previous administration, including suspending net neutrality transparency requirements for broadband providers with fewer than 250,000 customers and closing an investigation into discriminatory practices by AT&T and Verizon, among other things. 1 2 3 See Ted Johnson, President Trump Elevates Ajit Pai to FCC Chair, VARIETY (Jan. 23, 2017, 2:59 PM), http://variety.com/2017/biz/news/ajit-pai-fcc-donald-trump-2-1201967364/. Marguerite Reardon, FCC Chips Away at Net Neutrality Rules, CNET (Feb. 23, 2017, 12:54 PM), https://www.cnet.com/news/fcc-net-neutrality-ajit-pai-republican-transparency-rule/. Marguerite Reardon, AT&T, Verizon Catch a Break Under Trump FCC, CNET (Feb. 3, 2017, 2:32 PM), https://www.cnet.com/news/trumps-fcc-net-neutrality-at-t-and-verizon-zero-rating-inquirypai/; see also Cecilia King, Ajit Pai, F.C.C. Chairman, Moves to Roll Back Telecom Rules, N.Y. TIMES, Apr. 19, 2017, https://www.nytimes.com/2017/04/19/technology/ajit-pai-fcc-telecomderegulation.html?_r=0; Tony Romm, FCC Chairman Ajit Pai Is Expected to Unveil New Net Neutrality Plan on Wednesday, RECODE (Apr. 24, 2017, 4:07 PM), https://www.recode.net/2017/4/24/15412650/fcc-chairman-ajit-pai-new-net-neutrality-plans; Margaret Harding McGill, FCC Chief to Launch Net Neutrality Rewrite This Week, Sources Say, POLITICO (Apr. 24, 2017, 6:22 PM), http://www.politico.com/story/2017/04/24/net-neutrality-fcc237543; Jacob Kastrenakes, FCC Chief Ajit Pai Really Sounds Like He Plans to End Title II Net Neutrality, THE VERGE (Apr. 4, 2017, 2:28 PM), http://www.theverge.com/2017/4/4/15177970/ajitpai-keeps-hinting-at-title-ii-net-neutrality-reversal; Jeff John Roberts, FCC Chair Takes New Swipe 1 2 3 1030 15th Street NW, Suite B255, Washington, DC 20005 AmericanOversight.org Earlier today, Mr. Pai gave a speech outlining his plans to further alter the net neutrality rules established by the FCC during the prior administration. These remarks followed reports that Mr. Pai has been meeting with telecom trade associations and large internet companies to discuss the Commission’s plans for the future of net neutrality. Given that Mr. Pai has declined to publicly discuss the details of those meetings, American Oversight is seeking to gain insight into those meetings via the Freedom of Information Act. The public should have access to communications related to the shaping of such influential regulations; significant regulatory changes should not be shaped by secret influences. 4 5 Requested Records American Oversight requests that the FCC produce the following within twenty business days and seeks expedited review of this request for the reasons identified below: (1) All calendars or calendar entries for any of the individuals listed below, or anyone maintaining calendar entries on their behalf, relating to net neutrality: a. b. c. d. e. f. FCC Chairman Ajit Pai Chief of Staff Matthew Berry Senior Counsel Nicholas Degani Acting Wire Line Advisor Jay Schwarz Policy Advisor Nathan Leamer Acting Wireless Advisor Rachael Bender For calendar entries created in Outlook or similar programs, the documents should be produced in “memo” form to include all invitees, any notes, and all attachments. Please do not limit your search to Outlook calendars—we request the production of any calendar—paper or electronic, whether on government-issued or personal devices—used to track or coordinate how these individuals allocate their time on agency business. at Net Neutrality Rules, FORTUNE, Apr. 5, 2017, http://fortune.com/2017/04/05/fcc-ajit-pai-netneutrality/. Todd Shields, FCC Chief Sets Up Telecom Clash with Call to End Net Neutrality, BLOOMBERG TECHNOLOGY (Apr. 26, 2017, 1:28 PM), https://www.bloomberg.com/news/articles/2017-0426/fcc-chief-calls-for-net-neutrality-rollback-setting-off-clash. See Rich McCormick, FCC Head Ajit Pai Reportedly Outlines Plans to Roll Back Net Neutrality Rules, THE VERGE (Apr. 7, 2017, 12:00 AM), http://www.theverge.com/2017/4/7/15215316/fccajit-pai-net-neutrality-title-ii-plans-roll-back; Tony Romm, FCC Chairman Pai Met with Apple, Facebook and Others to Discuss Net Neutrality and Other Debates to Come, RECODE (Apr. 20, 2017, 1:09 PM), https://www.recode.net/2017/4/20/15373502/fcc-chairman-ajit-pai-met-facebookgoogle-net-neutrality-open-internet. 4 5 2 FCC-17-0114 Your search should encompass other ways of referring to the concept known as “net neutrality,” including but not limited to discussions of open internet, Title II regulations, common carrier rules, and the proper regulatory classification of internet service providers. (2) All records reflecting communications (including correspondence, emails, telephone call logs, calendar entries, meeting agendas, or any other records reflecting communications) between any of the individuals listed below and any internet service provider (or anyone acting on behalf of an internet service provider) regarding net neutrality: a. b. c. d. e. f. FCC Chairman Ajit Pai Chief of Staff Matthew Berry Senior Counsel Nicholas Degani Acting Wire Line Advisor Jay Schwarz Policy Advisor Nathan Leamer Acting Wireless Advisor Rachael Bender Your search should encompass other ways of referring to the concept known as “net neutrality,” including but not limited to discussions of open internet, Title II regulations, common carrier rules, and the proper regulatory classification of internet service providers. Please provide all responsive records from November 8, 2016, through the date the search is conducted. In addition to the records requested above, American Oversight also requests records describing the processing of this request, including records sufficient to identify search terms used and locations and custodians searched and any tracking sheets used to track the processing of this request. If the FCC uses FOIA questionnaires or certifications completed by individual custodians or components to determine whether they possess responsive materials or to describe how they conducted searches, we also request any such records prepared in connection with the processing of this request. American Oversight seeks all responsive records regardless of format, medium, or physical characteristics. In conducting your search, please understand the terms “record,” “document,” and “information” in their broadest sense, to include any written, typed, recorded, graphic, printed, or audio material of any kind. We seek records of any kind, including electronic records, audiotapes, videotapes, and photographs, as well as letters, emails, facsimiles, telephone messages, voice mail messages and transcripts, notes, or minutes of any meetings, telephone conversations or discussions. Our request includes any attachments to these records. No category of material should be omitted from search, collection, and production. 3 FCC-17-0114 Please search all records regarding agency business. You may not exclude searches of files or emails in the personal custody of your officials, such as personal email accounts. Records of official business conducted using unofficial systems or stored outside of official files is subject to the Federal Records Act and FOIA. It is not adequate to rely on policies and procedures that require officials to move such information to official systems within a certain period of time; American Oversight has a right to records contained in those files even if material has not yet been moved to official systems or if officials have, through negligence or willfulness, failed to meet their obligations. 6 7 In addition, please note that in conducting a “reasonable search” as required by law, you must employ the most up-to-date technologies and tools available, in addition to searches by individual custodians likely to have responsive information. Recent technology may have rendered the FCC’s prior FOIA practices unreasonable. In light of the government-wide requirements to manage information electronically by the end of 2016, it is no longer reasonable to rely exclusively on custodian-driven searches. Furthermore, agencies that have adopted the National Archives and Records Agency (NARA) Capstone program, or similar policies, now maintain emails in a form that is reasonably likely to be more complete than individual custodians’ files. For example, a custodian may have deleted a responsive email from his or her email program, but the FCC’s archiving tools would capture that email under Capstone. Accordingly, American Oversight insists that the FCC use the most up-to-date technologies to search for responsive information and take steps to ensure that the most complete repositories of information are searched. American Oversight is available to work with you to craft appropriate search terms. However, custodian searches are still required; agencies may not have direct access to files stored in .PST files, outside of network drives, in paper format, or in personal email accounts. 8 See Competitive Enter. Inst. v. Office of Sci. & Tech. Policy, 827 F.3d 145, 149—50 (D.C. Cir. 2016); cf. Judicial Watch, Inc. v. Kerry, 844 F.3d 952, 955—56 (D.C. Cir. 2016). See Competitive Enter. Inst. v. Office of Sci. & Tech. Policy, No. 14-cv-765, slip op. at 8 (D.D.C. Dec. 12, 2016) (“The Government argues that because the agency had a policy requiring [the official] to forward all of his emails from his [personal] account to his business email, the [personal] account only contains duplicate agency records at best. Therefore, the Government claims that any hypothetical deletion of the [personal account] emails would still leave a copy of those records intact in [the official’s] work email. However, policies are rarely followed to perfection by anyone. At this stage of the case, the Court cannot assume that each and every workrelated email in the [personal] account was duplicated in [the official’s] work email account.” (citations omitted)). Presidential Memorandum—Managing Government Records, 76 Fed. Reg. 75,423 (Nov. 28, 2011), https://obamawhitehouse.archives.gov/the-press-office/2011/11/28/presidentialmemorandum-managing-government-records; Office of Mgmt. & Budget, Exec. Office of the President, Memorandum for the Heads of Executive Departments & Independent Agencies, “Managing Government Records Directive,” M-12-18 (Aug. 24, 2012), https://www.archives.gov/files/records-mgmt/m-12-18.pdf. 6 7 8 4 FCC-17-0114 Under the FOIA Improvement Act of 2016, agencies must adopt a presumption of disclosure, withholding information “only if . . . disclosure would harm an interest protected by an exemption” or “disclosure is prohibited by law.” If it is your position that any portion of the requested records is exempt from disclosure, American Oversight requests that you provide an index of those documents as required under Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974). As you are aware, a Vaughn index must describe each document claimed as exempt with sufficient specificity “to permit a reasoned judgment as to whether the material is actually exempt under FOIA.” Moreover, the Vaughn index “must describe each document or portion thereof withheld, and for each withholding it must discuss the consequences of disclosing the sought-after information.” Further, “the withholding agency must supply ‘a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of a withheld document to which they apply.’” 9 10 11 12 In the event some portions of the requested records are properly exempt from disclosure, please disclose any reasonably segregable non-exempt portions of the requested records. If it is your position that a document contains non-exempt segments, but that those non-exempt segments are so dispersed throughout the document as to make segregation impossible, please state what portion of the document is non-exempt, and how the material is dispersed throughout the document. Claims of nonsegregability must be made with the same degree of detail as required for claims of exemptions in a Vaughn index. If a request is denied in whole, please state specifically that it is not reasonable to segregate portions of the record for release. 13 You should institute a preservation hold on information responsive to this request. American Oversight intends to pursue all legal avenues to enforce its right of access under FOIA, including litigation if necessary. Accordingly, the FCC is on notice that litigation is reasonably foreseeable. To ensure that this request is properly construed, that searches are conducted in an adequate but efficient manner, and that extraneous costs are not incurred, American Oversight welcomes an opportunity to discuss its request with you before you undertake your search or incur search or duplication costs. By working together at the outset, American Oversight and the FCC can decrease the likelihood of costly and time-consuming litigation in the future. Where possible, please provide responsive material in electronic format by email or in PDF or TIF format on a USB drive. Please send any responsive material being sent by mail to American Oversight, 1030 15 Street NW, Suite B255, Washington, DC 20005. If it will accelerate release of responsive records to American Oversight, please also provide responsive material on rolling basis. th FOIA Improvement Act of 2016 § 2 (Pub. L. No. 114–185). Founding Church of Scientology v. Bell, 603 F.2d 945, 949 (D.C. Cir. 1979). King v. U.S. Dep’t of Justice, 830 F.2d 210, 223—24 (D.C. Cir. 1987) (emphasis in original). Id. at 224 (citing Mead Data Central, Inc. v. U.S. Dep’t of the Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977)). Mead Data Central, 566 F.2d at 261. 9 10 11 12 13 5 FCC-17-0114 Fee Waiver Request In accordance with 5 U.S.C. § 552(a)(4)(A)(iii) and 47 C.F.R. § 0.470(e)(1), American Oversight requests a waiver of fees associated with processing this request for records. The subject of this request concerns the operations of the federal government, and the disclosures will likely contribute to a better understanding of relevant government procedures by the general public in a significant way. Moreover, the request is primarily and fundamentally for non-commercial purposes. American Oversight requests a waiver of fees because disclosure of the requested information is “in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government.” As discussed above, FCC Chairman Ajit Pai has made news over his plans to roll back the net neutrality provisions put in place by the FCC during the prior administration. He has reportedly been meeting with several telecom trade associations and large internet companies to discuss those plans, but has not informed the public about the nature or content of these meeting. This request seeks to gain insight into the participants and contents of those and other meetings, so that the public can better understand which interests are being represented in the shaping of such influential regulations. 14 15 16 17 This request is primarily and fundamentally not for commercial purposes. As a 501(c)(3) nonprofit, American Oversight does not have a commercial purpose and the release of the information requested is not in American Oversight’s commercial interest. American Oversight’s mission is to promote transparency in government, to educate the public about government activities, and to ensure the accountability of government officials. American Oversight will use the information gathered, and its analysis of it, to educate the public through reports, press releases, or other media. American Oversight will also make materials it gathers available on its website and promote their availability on social media platforms, such as Facebook and Twitter. One example of American Oversight’s demonstrated public disclosure of documents and creation of editorial content is in its recently launched “Audit the Wall” effort, where the organization is gathering and analyzing information and commenting on public releases of information related to the administration’s proposed construction of a barrier along the U.S.-Mexico border. 18 19 Accordingly, American Oversight qualifies for a fee waiver. 47 C.F.R. § 0.470(e)(2)(i)-(iii). Reardon, supra note 2; King, supra note 3; Kastrenakes, supra note 3; Roberts, supra note 3; Romm, supra note 3; McGill, supra note 3; Shields, supra note 4. McCormick, supra note 5; Romm, supra note 5. 47 C.F.R. § 0.470(e)(3)(i)-(ii). American Oversight currently has over 10,700 page likes on Facebook, and over 28,700 followers on Twitter. American Oversight, FACEBOOK, https://www.facebook.com/weareoversight/ (last visited Apr. 26, 2017); American Oversight (@weareoversight), TWITTER (last visited Apr. 26, 2017). Audit the Wall, AMERICAN OVERSIGHT, https://www.auditthewall.org/. 14 15 16 17 18 19 6 FCC-17-0114 Application for Expedited Processing Pursuant to 5 U.S.C. § 552(a)(6)(E)(1) and 47 C.F.R. § 0.461(h)(3)(ii), American Oversight requests that the FCC expedite the processing of this request. I certify to be true and correct to the best of my knowledge and belief, that there is an urgent need to inform the public about the federal government activity that is the subject of this request. Just today, Mr. Pai gave a speech outlining his plans to roll back the net neutrality provisions put in place under by the FCC during the prior administration. In order for the public to be able to meaningfully participate in any notice-and-comment period about any such regulations Mr. Pai eventually proposes, it is imperative that the public understand which interests were represented during the shaping of those plans. Moreover, Mr. Pai has been nominated for a second term as an FCC Commissioner, which will require Senate confirmation. The public needs information about Mr. Pai’s activities during his first few months as Chairman in order to evaluate his performance and contact their Senators with their support for, or opposition to, his nomination prior to his confirmation hearings. 20 21 I further certify that American Oversight is primarily engaged in disseminating information to the public. American Oversight’s mission is to promote transparency in government, to educate the public about government activities, and to ensure the accountability of government officials. Similar to other organizations that have been found to satisfy the criteria necessary to qualify for expedition, American Oversight “‘gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw material into a distinct work, and distributes that work to an audience.’” American Oversight will use the information gathered, and its analysis of it, to educate the public through reports, press releases, and other media. American Oversight will also make materials it gathers available on its website and promote their availability on social media platforms, such as Facebook and Twitter. One example of American Oversight’s demonstrated public disclosure of documents and creation of editorial content is in its recently launched “Audit the Wall” effort, where the organization is gathering and analyzing information and commenting 22 23 24 Shields, supra note 4; see also Reardon, supra note 2; King, supra note 3; Kastrenakes, supra note 3; Roberts, supra note 3; Romm, supra note 3; McGill, supra note 3. Todd Shields, Trump Renominates Net Neutrality Foe Ajit Pai to FCC, Source Says, BLOOMBERG POLITICS (Mar. 7, 2017, 2:25 PM), https://www.bloomberg.com/politics/articles/2017-03-07/net-neutrality-foe-ajit-pai-saidrenominated-by-trump-to-fcc. See ACLU v. U.S. Dep’t of Justice, 321 F. Supp. 2d 24, 30—31 (D.D.C. 2004); EPIC v. Dep’t of Defense, 241 F. Supp. 2d 5, 15 (D.D.C. 2003). ACLU, 321 F. Supp. 2d at 29 n.5 (quoting EPIC, 241 F. Supp. 2d at 11). American Oversight currently has over 10,700 page likes on Facebook, and over 28,700 followers on Twitter. American Oversight, FACEBOOK, https://www.facebook.com/weareoversight/ (last visited Apr. 26, 2017); American Oversight (@weareoversight), TWITTER (last visited Apr. 26, 2017). 20 21 22 23 24 7 FCC-17-0114 on public releases of information related to the administration’s proposed construction of a barrier along the U.S.-Mexico border. 25 Accordingly, American Oversight’s request satisfies the criteria for expedition. Conclusion We share a common mission to promote transparency in government. American Oversight looks forward to working with your agency on this request. If you do not understand any part of this request, have any questions, or foresee any problems in fully releasing the requested records, please contact Sara Creighton at foia@americanoversight.org or (202) 869-5246. Also, if American Oversight’s request for a fee waiver is not granted in full, please contact us immediately upon making such a determination. Sincerely, Austin R. Evers Executive Director American Oversight Audit the Wall, AMERICAN OVERSIGHT, https://www.auditthewall.org/. 25 8 FCC-17-0114