FCC 90-248 Federal Communications Commission Record 5 FCC Red No. 14 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of All net Communications Services. Inc. FOIA Control No. 90-32 On Request for Inspection of Records MEMORANDUM OPINION AND ORDER Adopted: July 9, 1990; Released: July 11, 1990 By the Commission: 1. The Commission has before it for consideration an Application for Review filed by Allnet Communications Services. Inc. (Allnet) of a portion of a March 8, 1990. decision by the Chief, Common Carrier Bureau. concern ing disclosure of certain documents requested by AHnet pursuant to a Freedom of Information Act 1 (FOIA) re quest. Specifically, Allnet seeks review of the Bureau's withholding of "factual portions" of documents concern ing· meetings by Commission staff with representatives of interexchange carriers to discuss topics specified in AHnet's FOIA request.2 BACKGROUND 2. The March 8 Bureau decision denies Allnet access to the documents at issue on the basis that they are personal notes rather than agency records subject to disclosure under FOIA. 3 The decision further reasons that. even if the notes are viewed as agency records rather than per sonal notes, their disclosure would compromise the Com mission's deliberative process and therefore they would be exempt under FOIA Exemption 5.~ While recognizing that factual material that can be segregated from delibera tive material in agency records must be disclosed.5 the decision states that. in the instant case. "it is virtually impossible to decipher where entries represent straight forward or condensed versions of particular conversations or meetings or information gleaned from research. rather than the views or reactions of the authors to the afore mentioned events."6 Thus the decision concludes that the documents are protected from disclosure in their entirety. 3. In its Application for Review, AHnet disputes the finding that the relevant documents are personal notes exempt from FOIA. Allnet argues that, since the notes it seeks concern official business of the agency with non agency employees and were created by agency employees for reference in regard to future agency actions. they are agency records. 7 AHnet maintains that, though portions of the notes may be exempt from disclosure. they must contain some factual material. including the dates of and attendees at the referenced meetings. as well as the subject matter discussed. AHnet seeks disclosure of this factual material. 4136 DISCUSSION 4. Even if the meeting notes are agency records rather than personal notes, as Allnet asserts.8 we agree with the Bureau that the notes are protected from disclosure under Exemption 5 of FOIA as predecisional documents that are part of the deliberative process. The documents in ques tion consist of ten pages of handwritten notes taken dur ing two meetings and a phone conversation that took place prior to the Commission's decisions in CC Docket No. 78-72 and CC Docket No. 80-286.9 Hence. they are clearly predecisional. Moreover. the documents contain virtually no segregable factual material because it is im possible to distinguish notes reflecting the comments of third parties from the tentative ideas. analysis. and conclu sions of the writers. 10 See, e.g .. Fulbright & Jaworski v. Dept. of Treasury. 545 F. Supp. 615 (S.D.N.Y. 1982) (notes taken during treaty negotiations and reflecting the author's view of which issues were important are pro tected from disclosure under Exemption 5).U Thus, what ·ever factual material is in the notes is "inextricably intertwined" with deliberative material consisting of the views, reactions. or conclusions of the author. See, e.g., E.P.A. v. Mink. 410 U.S. 73. 89 (1983): Ryan v. Dept. of Justice, 617 F2d 781,790-91 (D.C. Cir. 1980). CONCLUSION 6. In view of the foregoing, the Application for Review filed. by Allnet Communications Services. Inc. is denied. Allnet may seek judicial review of this decision pursuant to 5 U.S.C. § 552(a)(4)(B). 7. The officials responsible for this action are the fol lowing Commissioners: Alfred C. Sikes. Chairman, James H. Quello, Sherrie P. Marshall. Andrew C. Barrett, and Ervin S. Duggan. FEDERAL COMMUNICATIONS COMMISSION Donna R. Searcy Secretary 1 5 U.S.C. § 552. FOOTNOTES 2 Allnet Application for Review at I. 2. 5. The documents were among those listed as unavailable for inspection in Item II. Attachment 11 of the decision. 3 Bureau Decision at 5. 4 Bureau Decision at 5-6. Exemption 5 of FOIA prevents disclosure of "inter-agency or intra-agency memorandum or letters which would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. § 552(b)(5). The exemption has been extended to incorporate cer tain common law privileges developed in civil discovery cases, including. inter alia. the deliberative process privilege. Coastal States Gas Corp. v. Dept. of Energy, ol7 F. 2d 85-1 (D.C. Cir. 1980); Jordan V. Dept. of Justice. 591 F. 2d 753, 772-73 (D.C. Cir. 1978) (en bane). Generally, this privilege protects predecisional documents that are part of the deliberative process of examining agency policy. Coastal States Gas Corp .. bl7 F.2d at 868; Vaughn v. Rosen, 523 F. 2d 1136. ll.t3-44 (D.C. Cir. 1975). 5 Bureau Decision at 3. 5 FCC Red No. 14 Federal Communications Commission Record 6 Bureau decision at 6. 7 Allnet Application for Review at 2-3. 8 We need not reach this issue because. as discussed above, the documents are exempt from disclosure under FOIA Exemption 5. 9 Memorandum Opinion and Order, 4 FCC Red 6134 (1989). 10 The three documents withheld do indicate that (i) the author and James Frame of NECA were present at a meeting on 5129 concerning non-payment by Allnet, (ii) a conversation took place in 9/88 between the author and Don Evans concerning access charges, and (iii) a conversation took place between Don Evans and the author (date unspecified) on "presubscribed lines." Where a document is primarily deliberative, however, the Commission is not required to scrutinize it for '"purely factual' tidbits." Lead Industries Ass'n v. OSHA, 610 F.2d 70, 86 (2d Cir. 1979); see also Local 3, lnt'l Bhd. of Elec. Workers v. NLRB, 845 F.2d 1177, 1180 (2d Cir. 1988) (stripping short docu ment down to "bare-bones" facts by segregation would render it "nonsensical"). (All other handwritten documents in item 11 of the Bureau's decision appear to be research notes or to reflect predecisional deliberations between agency personnel.) 11 Contrary to AHnet's argument. the court in Fulbright & Jaworski did not limit applicability of its reasoning to cases involving international negotiations, though the case involved such negotiations. 4137 FCC 90-248