At its own discretion, the Federal Communications Commission has chosen to block the release of records related to a video produced last year in which FCC Chairman Ajit Pai and a Verizon executive joke about installing a “Verizon puppet” as head of the FCC.
In a letter to Gizmodo last week, the agency said it was withholding the records from the public in order to prevent harm to the agency—an excuse experts say is a flagrant attempt to skirt federal transparency law.
The video was played at an annual dinner hosted by the Federal Communications Bar Association in December, days before the FCC voted to repeal net neutrality protections established under the Obama administration. Gizmodo published a leaked video of Pai’s speech taken from inside the event, where no media cameras were present, on December 8th.
Part of Pai’s routine involved a satirical skit set in 2003, when he worked for Verizon as an associate general counsel. The skit featured Kathy Grillo, a Verizon senior vice president. Grillo and Pai hatch a plan to undermine the agency from within. “We want to brainwash and groom a Verizon puppet to install as FCC chairman,” Grillo says. “Think Manchurian Candidate.”
The jokes were exceedingly tone deaf given the ongoing net neutrality battle entering its most heated phase, though it caught plenty of laughs from an audience chock full of broadband industry lobbyists. Online, however, Pai’s jokes about “colluding” with his former employer and being Verizon’s “shill” came off as a bit more authentic than he had probably hoped. It didn’t help that only a week before, Pai had given another speech at Verizon Communications’ headquarters in Washington, D.C., the substance of which organizers sought to keep secret.
Yes, the video was intended as a joke. But ultimately, Pai’s decision to produce it and include a senior executive at Verizon—a company that he was poised to empower and enrich by billions of dollars by dissolving his own agency’s regulatory powers—sent a clear message about where his loyalties lie. Pai’s collusion with Verizon may not have begun in 2003, but on the evening of December 7th at the Washington Hilton Hotel, collusion was irreverently flaunted.
Using the Freedom of Information Act (FOIA), Gizmodo sought additional information from the FCC about how the video was put together; in particular, we were after any communications records from within the chairman’s office referencing the event or the Verizon executive. Nearly a dozen pages worth of emails were located, including draft versions of the video’s script and various edits. The agency is refusing to release them, however; it is “reasonably foreseeable,” it said, that doing so would injure the “quality of agency decisions.”
Federal agencies are permitted, and in some cases required, to withhold records from the public under nine exemptions outlined in the federal FOIA statute. In this case, the FCC claims the records about the Verizon video are being withheld under the Deliberative Process Privilege, a broadly defined exemption to FOIA intended to protect “documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.”
More simply, the FCC argues that releasing any records about the parody video would “harm” the agency by hindering its employees from engaging in frank and open discussions in the future. “The idea is that it would be difficult for agency employees to do their job if every off-the-cuff idea they come up with is exposed to public scrutiny,” said Adam Marshall, an attorney at the Reporters Committee for Freedom of the Press.
Only, the video has nothing to do with actual FCC business.
“To argue that this video amounts to the same kind of deliberative process that goes on behind the scenes in terms of an agency deciding an official policy on a topic, or what actions it’s going to take, is absurd,” Marshall said. “The deliberative process is frequently used to withhold embarrassing information or inconvenient information. I have no idea how a draft of a skit that was supposed to be funny would impair the FCC’s decision-making process on anything, except on, I guess, maybe future skits.”
Nate Jones, director of the FOIA Project at the National Security Archive, says that the Deliberative Process Privilege is the most widely abused FOIA exemption. Jones also pointed to Obama-era guidelines still on the books. They read, in part:
While recognizing that the “disclosure obligation under the FOIA is not absolute,” and that the FOIA contains exemptions to protect, for example, national security, personal privacy, privileged records, and law enforcement interests, the Guidelines stress that the President has directed agencies not to withhold information merely to prevent embarrassment, or because “errors and failures might be revealed, or because of speculative or abstract fears.”
“Bottom line is that even if this is a legally valid withholding by the FCC, it is not acting in the public’s interest to hide this information,” Jones said.
Due to an absence of case law around the Deliberative Process Privilege, the FCC only really needs to claim that it “reasonably foresees that disclosure would harm” the agency. What’s more, drafts of speeches are routinely withheld in response to public records requests; if an agency employee has an idea for a line or a topic in a speech, but it gets cut for whatever reason, they’re within their legal rights to withhold it. Tis is normally applied, however, to substantive policy speeches—not jokey skits.
“I don’t think that’s the type of deliberation that Congress intended to be shielded from public disclosure under FOIA,” Marshall said.
Moreover, while the exemption protects deliberative material, the privilege does not apply to material that represents a final decision or action—e.g., the final copy of Pai’s script or the video file itself. Neither was released by the FCC. And the privilege does not generally extend to communications with outsiders, meaning any records of Pai’s communications with Verizon would not be shielded. But when the FCC conducted its search for records related to the video, it returned no communications whatsoever with Kathy Grillo, the Verizon executive. It’s unclear why, but it would be hypocritical of the FCC to claim the internal records reflect official agency business while also claiming that Pai’s conversations with Grillo are personal and, therefore, exempt from public disclosure.
“The idea of the Deliberative Process Privilege is that, if you don’t redact or withhold this information, people are unlikely to have deliberations on this in the future,” said Austin Evers, executive director of the FOIA watchdog group American Oversight. “And I think that here, going back and forth over a parody video that’s part of a public speech, is unlikely to be the kind of speech that would be chilled by releasing it.”
“Because it is silly, and because it was part of a public presentation, I think the interest that they’re trying to protect is very low,” continued Evers, a former State Department senior counsel for oversight and transparency matters. “You could argue that the public interest is quite high given the tone deafness of the jokes and the participation of his former employer in the video. I would find it difficult for them to really justify the withholding as protecting important deliberations, but that doesn’t make it unlawful.”
The law allows the FCC to protect its employees’ internal deliberations, but it is also mandates that federal agencies don’t withhold information merely to protect officials from embarrassment. “And here we have those two principles clashing,” Evers said, “and they are asserting a very robust view of the Deliberative Process Privilege in a way that, well, they probably shouldn’t.”