Federal Communications Commission

Washington, D.C. 20554

June 13, 2016

Mr. Malt Novak
Gawker Media

Via email to novak@gizmodo.com

Re: FOIA Control No. 2016-000584
Dear Mr. Novak:
This responds to your Freedom of Information Act (FOIA) request submitted on April 26,
2016, seeking "any internal 'Talking Points' or 'Q&A' documents created by the FCC (from
April 2015 to. . . [April 26, 2016]) about the Charter/Time Warner Cable merger, sent or
received by Kim Hart, Office of Media Relations Press Secretary." You state that "[t]his would
include electronic documents as well as any paper memos distributed within the agency with
regard to the Charter/Time Warner Cable Merger ["the merger"] by Kim Hart."2
We have searched Kim Hart's records and located nine documents responsive to your
FOIA request. Five of the documents are emails between Commission staff discussing a draft
planning memo (identified as confidential and attached to two of the documents) and a draft
questions and answers memo (attached to the same two documents) regarding the merger. The
sixth document contains emails between Commission staff discussing an attached question and
answer "press prep" memo. The seventh document is an email between Commission staff
discussing the merger. The eighth document is an email from Commission staff to Chairman
Tom Wheeler discussing two attached letters from members of Congress to the Chairman. One
of those letters is publicly available3 and we include it here for your convenience. The ninth
document contains emails between Commission staff discussing an attached "core points" memo
and seven associated supplemental memos.
We are withholding the nine documents because we have determined that they are
exempt under FOJA 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[.]"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 predecisional and deliberative, "[reflecting] the give-and-take of the consultative process."6
'See email from Matt Novak to FOIA (dated: Apr. 25, 2016).
2

See letter from Hon. Marc Veasey, Gregory Meeks, Joyce Beatty, and Tern Sewell, U.S. House of
Representatives, to FCC Chairman Tom Wheeler and U.S. Attorney General Loretta Lynch (Mar. 23, 2016)
(March 23, 2016 Congressional Letter); available at:

http://apps.fcc.gov/ecfs/document/view;NEWECFSSESSION'bhzmXgmVzL5xQLTmYT2Cbd5hl G2yLm
Vkc7 12RsHOZn5RfC5WrJd1 !-778245000!NONE?id6000 1700615
"5 U.S.C. 552(b)(5).
5NLRB v. Sears Roebuck & Co., 421 U.S. 132, 151 (1975).
6Senate of the Commonwealth of Puerto Rico v. DOJ, 823 F. 2d 574, 585 (D.C. Cir. 1987).

Mr. Matt Novak

Page 2

Disclosure of this material would chill the deliberative process and inhibit the frank and open
discussions between government employees that are necessary for agency decision-making.7
The FOTA requires that "any reasonably segregable portion of a record" must be released
after appropriate application of the Act's exemptions.8 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. However, when nonexempt information is
"inextricably intertwined" with exempt information, reasonable segregation is not possible.9 We
have reviewed 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 withheld is appropriate.'0 We have determined that the withheld material 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."
You are considered a representative of the news media for purposes of calculating fees
for processing your FOJA request.'2 Therefore, you are not charged for search and review time,
and only charged for copying more than 100 pages of records.'3 Because we are providing you
with the records electronically, no fees will be assessed for processing your request.
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.'4 You may file an
application for review by mailing the application to Federal Communications Commission, Office
of General Counsel, 445 12th St SW, Washington, DC 20554, or you may file your application for

See 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).
8 5 U.S.C. 552(b) (sentence immediately following exemptions).
9MeadData Center Inc. v. Dep 't of the Afr Force, 566 F.2d 242, 260 (D.C. Cir. 1977).

'See Memorandum for the Heads of Executive Departments and Agencies, 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).
"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).
12 See 47 C.F.R. 0.466(a)(7).
' See 47 C.F.R. 0.470(a)(2).
14 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).

Mr. Matt Novak

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review electronically by e-mailing it to FOIA-Appeal@fcc.gov . Please caption the envelope (or

subject line, if via e-mail) and the application itself as "Review of Freedom of Information
Action."

Elizabeth Lyle
Assistant General Counsel
Office of General Counsel

Enclosures
cc:
FOJA Officer