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Federal Communications Commission

FCC 12-108

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)
CENTER FOR MEDIA AND DEMOCRACY
)
FOIA Control No. 2007-488
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On Request for Inspection of Records
)

MEMORANDUM OPINION AND ORDER

Adopted: September 10, 2012

Released: September 11, 2012

By the Commission:

I.

INTRODUCTION

1.
By this memorandum opinion and order, we grant in part and deny in part an application
for review by the Center for Media and Democracy (CMD) of a decision by the Enforcement Bureau
(EB) denying CMD’s Freedom of Information Act (FOIA) request. In general, we agree with EB that
withholding documents relating to investigations of broadcasters’ use of video news releases (VNRs) is
warranted under FOIA Exemption 7(A)1 to avoid interfering with current and future EB investigations.2
We have, however, identified a narrow class of records that should be released.

II.

BACKGROUND

2.
CMD’s FOIA request3 involved records regarding EB’s investigation into VNR
broadcasts by 42 owners of 77 broadcast licensees. Specifically, CMD sought: (1) letters of inquiry sent
by EB to the licensees under investigation, (2) the licensees’ responses to these letters of inquiry, and (3)
records of meetings, correspondence, memoranda, and any other communications between Commission
staff and external parties dealing with the VNR investigations.
3.
In its response, EB informed CMD that it had located documents responsive to the FOIA
Request but that these documents were exempt from disclosure under FOIA Exemption 7(A), which
exempts from disclosure “records or information compiled for law enforcement purposes, but only to the
extent that production of such law enforcement records or information . . . could reasonably be expected
to interfere with enforcement proceedings.”4 EB explained that release of the documents could


1 See 5 U.S.C. § 552(b)(7)(A).
2 A VNR is a video segment that resembles a news report but is instead created by a public relations firm or other
entity and then provided to a broadcaster. The sponsorship identification provisions of the Communications Act and
the Commission’s rules generally require that the providers of VNRs be identified if the VNRs are broadcast. See,
e.g., Fox Television Stations, 26 FCC Rcd 9485 (EB 2011). Matters under investigation involve questions raised by
the incorporation of VNRs in broadcast television stations’ news programming.
3 E-mail from Diane Farsetta to FOIA@fcc.gov (Aug. 29, 2007) (Request).
4 See Letter from Hillary S. DeNigro, Chief, Investigations and Hearing Division, Enforcement Bureau to Ms. Diane
Farsetta (Jul 20, 2010) (Decision).

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FCC 12-108

reasonably be expected to interfere with pending or prospective investigations, because “(1) disclosure
would hinder the agency’s ability to control or shape its investigations; (2) disclosure would enable
persons or entities with relevant information to destroy or alter evidence; and (3) disclosure would reveal
evidence or strategy in the investigation.”5 Further, EB found that it was unable to segregate and release
meaningful portions of these documents that were not exempt.6 EB also declined to make a discretionary
release of the documents.7
4.

Application for Review.

CMD’s application for review8 asserts that withholding the
documents is inconsistent with the Administration’s emphasis on the transparency of government and its
policy of not automatically withholding documents just because they fall within an exemption.9 CMD
asserts that EB relies on precedent that predates and fails to reflect the Administration’s policy.10 CMD
also asserts that EB incorrectly relies on cases in which courts deferred to agency expertise on matters of
national security or a requester was seeking information about an investigation of the requester’s own
misconduct, neither of which is the situation here.11 CMD maintains that EB did not demonstrate that the
specific factors necessary to justify withholding under Exemption 7(A) are present here.12 Further, CMD
speculates that the VNR investigations that are the subject of its FOIA request must by now be closed, so
that it is no longer possible to interfere with them.13

III.

DISCUSSION

5.
Exemption 7(A) exempts from disclosure: “records or information compiled for law
enforcement purposes, but only to the extent that the production of such law enforcement records or
information . . . could reasonably be expected to interfere with enforcement proceedings.”14 Withholding
documents under Exemption 7(A) can be justified only if (1) law enforcement proceedings are pending or
prospective and (2) release of the information could reasonably be expected to cause some articulable


5 See Decision at 1 (footnotes omitted).
6 See id. at 2.
7 See id. at 1-2.
8 See Letter from Lisa Graves, Executive Director, CMD to Federal Communications Commission (Aug. 17, 2010)
(AFR).
9 See id. at 1-2; see also Memorandum to Heads of Executive Departments and Agencies, Freedom of Information
Act, 74 Fed. Reg. 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).
10 See AFR at 2.
11 See id.
12 See id. at 2-3. We discuss the factors that CMD cites infra at paragraph 6.
13 See AFR at 3. Additionally, CMD contends that, at the very least, EB should have furnished a detailed list of the
documents withheld or some redacted documents. See id. at 1. It is well-established, however, that a detailed list of
documents or “Vaughn index” is not required at the administrative level, and we do not customarily provide one.
See Wireless Consumer Alliance, 20 FCC Rcd 3874, 3878 ¶ 11 (2005), citing Schwarz v. U.S. Dep’t of Treasury,
131 F. Supp.2d 142, 147 (D.D.C. 2000), aff’d No. 00-5453 (D.C. Cir. 2001), reported at 2001 WL 674636; see also
Fiduccia v. U.S. Dep’t of Justice, 185 F.3d 1035, 1042 (9th Cir. 1999) (an agency need only provide a sufficiently
detailed description of what it is refusing to produce and why so that the requester and the court can have a fair idea
of what the agency is refusing to produce and why); Spannaus v. U.S. Dep’t of Justice, 813 F.2d 1285, 1288-89 (4th
Cir. 1987) (in applying Exemption 7(A), government may justify nondisclosure in a generic fashion).
14 5 U.S.C. § 552(b)(7)(A).
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Federal Communications Commission

FCC 12-108

harm.15 Contrary to CMD’s contention, we find no indication that this standard has been altered by the
Administration’s position on government transparency or any recent case law.16 Moreover, Exemption
7(A) provides Commission investigations into VNRs the same protection it provides investigations
involving national security concerns. CMD is correct that in cases such as Center for National Security
Studies v. U.S. Dep’t of Justice,17 courts have deferred to the government’s judgment regarding national
security matters in applying Exemption 7(A). But courts also give deference to government showings of
articulable harm in law enforcement situations not involving national security concerns.18
6.
In particular, we reject CMD’s assertion that Exemption 7(A) applies only upon a
showing that disclosure could lead to: “(1) the destruction or alteration of evidence, (2) intimidation or
harm of knowledgeable individuals, and (3) fabrication of testimony.”19 While these factors were deemed
sufficient for withholding in the particular case CMD quotes, courts have found other factors relevant
under Exemption 7(A) and given deference to agency assertions that these factors were present. For
example, courts have approved of agencies withholding documents upon showings that disclosure would
reveal the nature and scope of the government’s investigation and would give the targets of the
investigation premature access to information about the investigation and the government’s case.20 This
would be relevant even if the requester is not itself a target of the investigation, because release would
make the information publicly available.21 It also may be relevant even in the case of closed
investigations, where the information that would be disclosed bears upon additional, ongoing
investigations.22
7.
Here, we find with respect to nearly all responsive records that EB has made a sufficient
showing to warrant withholding under Exemption 7(A). EB concluded that disclosure of any of the
responsive records requested could reasonably be expected to cause articulable harm to its VNR
investigations because certain of the VNR investigations referred to in the FOIA request, as well as other


15 See Manna v. U.S. Dep’t of Justice, 51 F.3d 1158, 1164 (3rd Cir. 1995); Grey v. U.S. Army Criminal Investigation
Command, 742 F. Supp.2d 68, 72-73 (D.D.C. 2010); Cozen O’Connor v. U.S. Dep’t of Treasury, 570 F. Supp.2d
749, 783 (E.D. Pa. 2008).
16 See, e.g., Amnesty Int’l USA v. CIA, 728 F. Supp.2d 479, 525 (S.D. N.Y. 2010) (recent reiteration of standard).
17 331 F.3d 918, 928-29 (D.C. Cir. 2003).
18 See cases cited infra note 20.
19 See AFR at 2-3, quoting Wichlacz v. U.S. Dep’t of Interior, 938 F. Supp. 325, 331 (E.D. Va. 1996), aff’d, 114
F.3d 1178 (4th Cir. 1997).
20 See Solar Sources, Inc. v. U.S., 142 F.3d 1033, 1039 (7th Cir. 1998) (a suspected violator with advance access
could construct defenses that would permit violations to go unremedied); Swan v. SEC, 96 F.3d 498, 500 (D.C. Cir.
1996) (records that reveal the focus and scope of the investigation are precisely the sort of information that
Exemption 7(A) allows an agency to keep secret); Kay v. FCC, 976 F. Supp. 23, 37-38 (D.D.C. 1997) (generally an
agency may establish interference by showing that release would reveal the scope, direction, and nature of its
investigation), aff’d, 172 F.3d 919 (D.C. Cir. 1998); Int’l Collision Specialists, Inc. v. IRS, Civ. No. 93-2500 (DRD)
(D.N.J. Mar. 4, 1994), reported at 1994 WL 395310 at *2 (finding that release would give the targets of
investigation earlier and greater access to information about the investigation than it would otherwise be entitled to).
21 See Solar Sources, 142 F.3d at 1039 (information disclosed under the FOIA would presumably be available to the
public as a whole, including the targets of the investigations).
22 See id. at 1040 (applying Exemption 7(A) where the case against the specific individuals named in the FOIA
request was closed, but the information was compiled as part of an ongoing investigation); Wireless Consumer
Alliance, 20 FCC Rcd at 3881 ¶ 21 (Exemption 7(A) may be invoked to withhold records from completed
proceedings where the records would be relevant to additional prospective investigations).
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FCC 12-108

investigations involving similar issues, remain ongoing. The materials responsive to CMD’s request23
reveal the developing nature and scope of EB’s investigation. EB’s approach to the various investigations
into individual television stations’ use of VNRs has been evolving and fact-specific. As the
investigations progress, EB has re-evaluated the significance of the different factors relevant to analyzing
the lawfulness of various uses of VNRs. Release of the records requested by CMD would reveal to the
targets of ongoing VNR investigations EB’s developing focus and thought process with respect to its
VNR investigations. This could allow the targets to frustrate EB’s enforcement efforts for the reasons
cited by EB in its decision and by courts in the precedent noted above. We thus find a reasonable
expectation of articulable harm as required by the statute and the case law. In light of this foreseeable
harm, we further find that discretionary release of records would not be appropriate.24 Moreover, we find,
with the one exception described below, that any non-exempt material is inextricably intertwined with
exempt material and that the segregation of non-exempt material would leave material useless to the
requester.25
8.
Despite the foregoing, we find that there is one narrow class of records that does not raise
concerns under Exemption 7(A). In three instances, VNR investigations have closed and resulted in the
release of an enforcement order. These are: (1) EB-06-IH-3709 (Fox Television Stations, Inc.),26 (2) EB-
06-IH-3723 (Comcast Corporation),27 and (3) EB-06-IH-3725 (Access.1 New Jersey License Company,
LLC).28 The enforcement orders in these cases describe the VNRs involved in the investigation.
Because this information has already been released to the public, we see no foreseeable harm in releasing
the video recordings of these VNRs submitted by the subjects of the investigation, as requested by CMD.
We therefore direct EB to release the relevant videos.

IV.

ORDERING CLAUSE

9.
ACCORDINGLY, IT IS ORDERED, that the application for review by the Center for
Media and Democracy IS GRANTED IN PART and DENIED IN PART. CMD may seek judicial review


23 Records responsive to CMD’s request consist of: (1) the letters of inquiry sent to the licensees under investigation,
(2) the licensees’ responses, including video recordings of VNRs and requests for extensions of time, and (3)
internal staff e-mails, memoranda, and charts discussing and analyzing the licensees’ responses. The internal
material may also fall within the scope of the deliberative process privilege of FOIA Exemption 5. Because we are
withholding this material under Exemption 7(A), however, we do not find it necessary to reach this question.
24 See Peter J. Pratt, 26 FCC Rcd 13808, 13810 (2011) (a showing that discretionary release would cause harm
satisfies administrative policy).
25 See Electronic Privacy Information Center v. DHS, 384 F. Supp.2d 100, 109 (D.D.C. 2005) (non-exempt portions
of a document must be disclosed unless they are inextricably intertwined with exempt portions); Michael Ravnitzky,
23 FCC Rcd 4433, 4434 ¶ 6 (2008) (applying inextricably intertwined test).
26 See Fox Televison Stations, Inc., Notice of Apparent Liability, 26 FCC Rcd 3964 (EB 2011); Fox Television
Stations, Inc.,Forfeiture Order, 26 FCC Rcd 9485 (EB 2011).
27 See Comcast Corp., Notice of Apparent Liability, 22 FCC Rcd 17030 (EB 2007).
28 See Access.1 New Jersey License Co., LLC, Notice of Apparent Liability, 26 FCC Rcd 3978 (EB 2011).
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FCC 12-108

of this action, pursuant to 5 U.S.C. § 552(a)(4)(B).29 The officials responsible for this action are the
following: Chairman Genachowski and Commissioners McDowell, Clyburn, Rosenworcel, and Pai.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary


29 We note that as part of the Open Government Act of 2007, the Office of Government Information Services
(OGIS) was created to offer mediation services to resolve disputes between FOIA requesters and Federal agencies as
a non-exclusive alternative to litigation. Using OGIS services does not affect CMD’s right to pursue litigation.
CMD may contact OGIS in any of the following ways:
Office of Government Information Services
National Archives and Records Administration
8601 Adelphi Road - Room 2510
College Park, MD 20740-6001
E-mail: ogis@nara.gov
Telephone: 301-837-1996
Facsimile: 301-837-0348
Toll-free: 877-684-6448.
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