The Federal Communications Commission has denied a public records request that sought emails regarding Chairman Ajit Pai’s “Harlem Shake” video.
Pai shot the video with the Daily Caller, a conservative news site, just before the December 2017 FCC vote to repeal net neutrality rules. Pai performed the Harlem Shake dance and other hijinks in order to demonstrate that his repeal of net neutrality rules wouldn’t prevent Internet users from doing silly things on the Internet.
When asked for communications about the video by MuckRock, a public records-focused news site, the FCC refused to make them public.
“Curious as to whose idea this was, I filed a FOIA for emails between The Daily Caller and the FCC, as well as any talking points regarding this huge PR coup,” MuckRock Executive Editor JPat Brown wrote yesterday. “Four months later, the FCC responded. The agency found two pages of emails but would be withholding them in their entirety under FOIA’s infamous b(5) exemption regarding deliberative process.”
That exemption to the Freedom of Information Act lets agencies withhold “inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with an agency,” as long as the communications were “generated before the adoption of an agency policy” and reflect “the give-and-take of the consultative process,” the FCC noted in its denial letter to MuckRock.
Email release would “harm” FCC operations
MuckRock had asked for all communications between the FCC and the Daily Caller about the video, as well as all “Talking points or promotional plans regarding the article.”
The FCC’s denial of the request said it found just “two pages of internal email exchanges between personnel in the Office of the Chairman and the Office of Media Relations concerning the release of the video.”
The FCC said it found that these internal emails “reflect deliberative discussion preliminary to release of the video and that they therefore fall within the scope of the deliberative process privilege,” and that “disclosure would foreseeably harm the staff’s ability to execute its functions by freely discussing relevant matters.”
The letter did not mention any communications between the FCC and the Daily Caller—that may mean that all discussions with the website’s staff were over the phone or in person.
“It is certainly the case that government employees will use non-written communications to avoid FOIA,” Adam Marshall, attorney for the Reporters Committee for Freedom of the Press, told Ars.
Verizon puppet video emails also withheld
Pai has repeatedly said that he aims to make the FCC more transparent with the public than it was under previous chairmen. But his office has repeatedly refused to release records related to controversial topics, such as problems in the FCC’s system for accepting public comments on the net neutrality repeal.
This isn’t even the first time that the FCC has used Exemption 5 to deny a FOIA request related to an Ajit Pai comedy skit. Pai made a video with Verizon executive Kathleen Grillo that jokes about Verizon installing Pai to lead the FCC as a “Verizon puppet.” When it received a public records request, the FCC refused to release the draft versions of jokes and other emails related to that skit.
“A silly denial”
The FCC’s response to MuckRock’s request “strikes me as a silly denial and an overuse of Exemption 5,” Marshall said. Overuse of Exemption 5 is common, Marshall said, noting that it is known as the “withhold-it-because-you-want-to exemption.” Marshall also thought the FCC’s denial of the Verizon puppet video FOIA video was an overuse of the deliberative process exemption.
The FCC withholding emails about Pai’s Harlem Shake video doesn’t appear to be “good faith application of the foreseeable harm standard,” Marshall said.
Emails about the Harlem Shake video might technically be internal deliberations, “but is it really going to harm the chairman’s or the FCC personnel’s discussions in the future if they release these talking points about this video?” Marshall asked.
FOIA exemptions are “meant to ensure that serious matters going on within the government are recognized as deserving of protection,” he said. “If you’re talking about a YouTube video the chairman of an agency makes, is that really what we’re going to be invoking these exemptions to protect?” Marshall said.
Exemption 5 generally does not cover factual material, as opposed to the deliberations of government employees, Marshall noted.
“Factual information is not considered deliberative unless it’s inextricably intertwined with the deliberative process,” Marshall said. But the FCC chose not to release any factual statements from emails about the Harlem Shake video, telling MuckRock that “no meaningful non-exempt material can practicably be segregated from the exempt material.”
Emails about the video may have contained purely factual information, such as the length of the video, the date on which it was going to be released, or even just the email headers, Marshall said.
“There’s a question of whether segregability was properly done here,” Marshall said.
MuckRock could appeal the FOIA denial to the FCC’s Office of General Counsel. FOIA appeals can also be made in the form of a lawsuit. MuckRock’s Brown told Ars that he’s considering appeal options.