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FOIA Problems@FCC

A House committee recently released the report shown at left on FOIA practices in the federal government. As is typical these days in Washington the report is rather partisan, but is well documented. Several agencies are discussed, but FCC gets plenty of attention particularly with respect to its redaction practices. Sound familiar? We have been talking about it here for a while!

The House committee got 200 FOIA releases from FCC along with the unredacted original documents. An
attachment to the report contains all 200 documents in both versions - although personal information is missing from the "originals" that are released. (Whether on not releasing such documents in large numbers was proper for the House committee to do we will leave to real lawyers.)

Here is a statement in the report about FCC redaction practices:

The FCC’s tendency to over-redact makes it difficult for requesters to understand what the agency has provided them, and consequently,to make follow up requests. For example, in response to a request from Vice News reporter Jason Leopold, the FCC withheld 1,900 pages in their entirety under exemption five. These redactions demonstrate a lack of responsiveness to the public’s right for information. The agency either misunderstands how to use redactions, raising concerns of competency, or the agency intentionally misuses redactions, raising concerns of integrity. Given the numerous examples in which the FCC improperly redacts information, this may be a deliberate tactic to withhold information from the public.

We fully agree.

One thing that is puzzling about the FCC documents in the House attachment is that they all have all the deletions marked with exemption numbers. It is clear that in the past FCC has at best been inconsistent with such markings. For example here is a FOIA previously discussed here from the FCC Inspector General:


See any redaction markings with exemption numbers as required by law? Section 12 of the OPEN Government Act of 2007 requires that “the exemption under which the deletion is made, shall be indicated at the place in the record where such deletion is made.” While some FCC FOIA releases have had such redaction markings, many have not. Since FCC only makes public a tiny fraction of such releases - possibly itself in violation of 5 U.S.C. § 552(a)(2)(D) - it is not clear what the marking compliance rate actually has been.

Were some of the the 200 FOIA releases given to the House committee doctored before they were sent so that they all appeared to be compliant with the statutory exemption number marking requirement? How else do you explain perfect compliance when other released FOIA documents in recent years, like the IG release shown above, have a spotty compliance record?