Federal Communications Commission FCC 14-66
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of
JASON SMATHERS
On Request for Inspection of Records
)
)
)
)
)
)
FOIA Control No. 2014-177
MEMORANDUM OPINION AND ORDER
Adopted:  May 19, 2014 Released:  May 20, 2014
By the Commission:
1. This order addresses an application for review (AFR)
1
filed by Jason Smathers in 
connection with his Freedom of Information Act (FOIA) request seeking “any emails in the Federal 
Communications Commission FOIA Office that contain the word Smathers.”
2
  The Office of Managing 
Director, Performance Evaluation & Records Managements (OMD-PERM) responded to the Request, 
providing Mr. Smathers with a number of responsive records.
3
  Among other redactions, OMD redacted 
portions of the records pursuant to FOIA Exemption 5
4
because release would reveal the mental processes 
of decision makers.
5
  
2. Mr. Smathers’ AFR appeals the redactions made by OMD-PERM under Exemption 5,
and requests copies of the responsive documents without redaction.
6
  Mr. Smathers asserts that because 
the responsive records concern his FOIA requests, all of which the agency has acted on, then at least some 
of the statements redacted have been adopted by the agency as the “official agency position” for the FOIA 
request at issue and therefore should be disclosed.
7
  We deny the AFR.  
3. Mr. Smathers’ AFR may be read as claiming that once the agency has made a final 
decision, the documents no longer may qualify as “predecisional” as required to apply the deliberative 
process privilege under Exemption 5, or that the Commission adopted the reasoning in the emails and 
therefore Exemption 5 does not apply. Neither argument has merit.  
4. FOIA Exemption 5 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.”
8
  
                                                          
1
See Review of Freedom of Information Action FOIA Appeal by Jason Smathers (filed March 13, 2014) (AFR).  
2
Email from Jason Smathers to FOIA Officer (filed January 22, 2014) (Request).  
3
Letter from Stephanie D. Kost, FCC FOIA Public Liaison, to Jason Smathers (dated February 27, 2014) 
(Response).  
4
5 U.S.C. § 552(b)(5).
5
Response at 1.  
6
See AFR.
7
Id..  
8
See 5 U.S.C. § 552(b)(5).  
Federal Communications Commission FCC 14-66
2
Exemption 5 encompasses the deliberative process privilege, which is intended to “prevent injury to the 
quality of agency decisions.”
9
  To fall within the scope of the deliberative process privilege encompassed 
by Exemption 5, records must be both pre-decisional, i.e., “generated before the adoption of an agency 
policy [i.e., a decision],” and deliberative, i.e., “[reflecting] the give-and-take of the consultative 
process.”
10
  
5. It is well established that the predecisional character of a document is not altered by the 
fact that an agency has subsequently made a final decision, even if the final document reflects the 
predecisional material.
11
This is consistent with the privilege’s protection not merely of documents, but 
of the integrity of the agency’s decisionmaking process.
12
Moreover, although an agency may waive the 
protection of the deliberative process privilege by “choos[ing] expressly to adopt or incorporate 
[protected material] by reference” in the agency’s final decision,
13
we see nothing to support a claim that 
the Commission waived Exemption 5 by adoption in any of the FOIA proceedings involving Mr. 
Smathers.  None of the staff opinions that were redacted are even referenced in the FOIA responses to Mr. 
Smathers’ requests, and thus there is no reasonable basis for suggesting there has been express adoption
or incorporation by reference, as required to support a waiver.
14
  We therefore reject Mr. Smathers’ 
arguments and uphold OMD-PERM’s application of Exemption 5.
6. ACCORDINGLY, IT IS ORDERED that the AFR from Jason Smathers in FOIA Control 
No. 2014-177 is DENIED, as set forth herein.  Mr. Smathers may seek judicial review of this action 
pursuant to 5 U.S.C. § 552(a)(4)(B).
15
                                                          
9
NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151 (1975).  
10
See, e.g., Judicial Watch, Inc. v. Food & Drug Admin., 449 F.3d. 141, 151 (D.C. Cir. 2006).  
11
See, e.g., Fed. Open Mkt. Comm. v. Merrill, 443 U.S. 340, 359-60 (1979); Electronic Privacy Information Center 
v. Transportation Sec. Admin., 928 F.Supp.2d 156, 169 (D.D.C. Mar 07, 2013); John Dunbar, 23 FCC Rcd 9850, 
9851 (2008).  
12
See NLRB v. Sears, Roebuck & Co., 421 U.S. at 150, L. Lloyd Morgan, 26 FCC Rcd 13823, 13825-26 (2011).
13
NLRB v. Sears, Roebuck & Co., 421 U.S. at 161.
14
See id.; Electronic Frontier Foundation v. U.S. Dept. of Justice, 739 F.3d 1, 10-11 (D.C. Cir. 2014) (it must be 
evident that agency adopts staff report as agency’s reasoning, even when agency’s final decision agrees with 
conclusions of the report); Everett, 16 FCC Rcd 4322, 4324 n.17 (2001).
15
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 Mr. Smathers’ right to pursue 
litigation.  Mr. Smathers may contact OGIS in any of the following ways: 
Office of Government Information Services 
National Archives and Records Administration 
Room 2510 
8601 Adelphi Road 
College Park, MD 20740-6001 
E-mail: ogis@nara.gov 
Telephone: 301-837-1996 
Facsimile: 301-837-0348 
Toll-free: 1-877-684-6448.
Federal Communications Commission FCC 14-66
3
7. The officials responsible for this action are the following:  Chairman Wheeler, and 
Commissioners Clyburn, Rosenworcel, Pai, and O’Rielly.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary