**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the matter of                 | *  | FOIA Control Nos. 21-039 and |
|                                  | *) | 21-045                       |
| DONNA HARRINGTON-LUEKER          | ** |                              |
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| On Requests for Inspection of    | *  |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted: September 5, 2001 Released: September 13, 2001**

By the Commission:

1.  The Commission has before it an electronic mail (e-mail) letter from
    Donna Harrington-Lueker of the Education Writers Association seeking
    review of the decision of the Common Carrier Bureau (CCB or Bureau)
    granting in part and denying in part her Freedom of Information Act
    (FOIA) requests for Funding Years 1-3 applications by four school
    districts for funding from the Universal Service Administrative
    Company Schools and Libraries Division (SLD), and documents
    concerning review of part of those applications.[^1] As discussed
    below, Ms. Harrington-Lueker's application for review is denied.

2.  Ms. Harrington-Lueker's first FOIA request, assigned FOIA Control
    No. 21-039, sought copies of the FCC Form 471 filed for Funding
    Years 1-3 by the Chicago, Cleveland, Detroit, and Milwaukee school
    districts.[^2] Her second FOIA request, assigned FOIA Control No.
    21-045, sought copies of "Item 25 Review documents" [^3] for those
    four school districts.[^4] CCB granted the request for the
    applications, but denied the request for the review documents
    pursuant to FOIA Exemption 7, 5 U.S.C. § 552(b)(7)(E) (Exemption
    7(E)) (authorizing withholding of investigatory records that "would
    disclose techniques and procedures for law enforcement
    investigations or prosecutions, or would disclose guidelines for law
    enforcement investigations or prosecutions if such disclosure could
    reasonably be expected to risk circumvention of the law").[^5] CCB
    explained that disclosure of the review information "would reveal
    SLD's techniques and guidelines for conducting investigations of
    misuse of program funds and thus undermine SLD's (acting on behalf
    of the Commission) investigatory process."[^6]

3.  We have reviewed the Bureau's decision and find no error in its
    disposition of the FOIA request for the Item 25 review documents for
    the four specified school districts. Form 471 Item 25 is a
    certification that a school or library will have secured access to
    all of the resources necessary to make effective use of the services
    purchased as well as to pay the discounted charges for eligible
    services.[^7] The Universal Service Administrative Company Schools
    and Libraries Division (SLD) reviews, *inter alia*, Item 25 for
    fraud and abuse in violation of our rules and orders.[^8] The Bureau
    properly determined that release of these documents would undermine
    the SLD's review process by revealing techniques and guidelines for
    conducting such reviews.[^9] Exemption 7(E) permits the Commission
    to describe the general nature of review techniques while
    withholding the full details,[^10] and the Commission has done
    so.[^11] The documents sought by Ms. Harrington-Lueker would give
    detailed information concerning the review process and provide a
    blueprint for those wishing to frustrate or defeat such reviews.
    Even revealing whether or not any of the four school districts were
    subject to an Item 25 review would give insights into which
    applications are chosen for review by SLD. The records are thus
    properly withheld under FOIA Exemption 7(E).[^12]

4.  We do not agree with Ms. Harrington-Lueker that the documents must
    be released because the reviews "are perhaps the only way the public
    has to ensure that the E-rate monies are being properly spent."[^13]
    E-rate applications are publicly available on the SLD Internet site,
    and are subject to review by SLD and the Commission.[^14] The
    Inspector General, and the General Accounting Office also conduct
    oversight of the E-rate program. The results of these reviews are
    publicized. It is not necessary to disclose the underlying
    workpapers and SLD review guidelines as Ms. Harrington-Lueker
    suggests.

5.  Accordingly, IT IS ORDERED that Ms. Harrington-Lueker's application
    for review IS DENIED. She may seek review of the denial of her FOIA
    request pursuant to 5 U.S.C. § 552(a)(4)(B).

6.  The Officials responsible for this action are the following
    Commissioners: Chairman Powell, Commissioners Tristani, Abernathy,
    Copps, and Martin.

FEDERAL COMMUNICATIONS COMMISSION

Magalie Roman Salas Secretary

[^1]: E-mail from Donna Harrington-Lueker to Joseph T. Hall, Assistant
    Bureau Chief, CCB (Application for Review).

[^2]: E-mail from Donna Harrington-Lueker addressed to the Assistant
    General Counsel, FCC (FOIA 21-039).

[^3]: "Item 25" refers to a part of Form 471, the services ordered and
    certification form, requiring certification "that the current budget
    and any other budgets applicable to the funding year for the
    eligible schools and libraries . . . will provide sufficient funding
    to purchase all of the resources -- including computers, training,
    software, maintenance, and electrical connections -- that are
    necessary for you to make effective use of the eligible services you
    have request . . . as well as to pay discounted charges for eligible
    services." [See]{.underline} Instructions for Completing FCC Form
    471, Specific Instructions Section G Item (25) (October 2000). In
    earlier years of the program, Item 25 was numbered Item 22.

[^4]: E-mail from Donna Harrington-Lueker addressed to the Assistant
    General Counsel, FCC (February 25, 2001) (FOIA 21-045).

[^5]: E-mail from Narda Jones to Donna Harrington-Lueker, attaching
    letter from Joseph T. Hall, Assistant Bureau Chief, CCB, to Donna
    Harrington-Lueker ([CCB Decision]{.underline}) (addressing both FOIA
    21-039 and FOIA 21-045).

[^6]: [CCB Decision]{.underline} at 2.

[^7]: [See]{.underline} [Request for Review of the Decision of the
    Universal Service Administrator by United Talmudical Academy
    Brooklyn, New York]{.underline}, 15 FCC Rcd 423, 424 (2000)
    ([UTA]{.underline}); n. 3, [supra]{.underline}.

[^8]: [CCB Decision]{.underline} at 2.

[^9]: [Id.]{.underline} [citing]{.underline} FOIA Exemption 7(E).

[^10]: [See, e.g.,]{.underline} [Bowen v. FDA]{.underline}, 925 F.2d
    1225, 1228 (9th Cir. 1991) (release of specifics of investigatory
    techniques would threaten future investigations).

[^11]: A general description of the review process may be found in
    [Request for Review of the Decision of the Universal Service
    Administrator by Children's Village Academy Kingston, North
    Carolina]{.underline}, *Order*, File No. SLD-204351, DA 01-794
    (CCB/APD Mar. 30, 2001) at paragraphs 5-7 (providing a general
    description of an example an Item 25 Certification review) and
    [UTA]{.underline}, 15 FCC Rcd at 425 (similarly describing the
    necessary resources certification review process used by SLD).

[^12]: [See]{.underline} [J. David Stoner]{.underline}, 5 FCC Rcd 6458,
    6460 (1990) (Exemption 7(E) used to withhold files that would allow
    carriers to frustrate or defeat audit process); [US
    Air]{.underline}, 5 FCC Rcd 3753 (1990) (Exemption 7(E) protects
    discussion of techniques and strategy for identifying transmitters
    used for unauthorized or illegal purposes); [J.A.
    Savage]{.underline}, 5 FCC Rcd 819, 819-20 (1990) (Exemption 7(E)
    protects records that would allow manufacturers to discern
    measurement error tolerance criteria used by Commission in deciding
    whether to grant an application).

[^13]: Application for Review at 2.

[^14]: [See]{.underline} [UTA]{.underline}, 15 FCC Rcd at 430 (SLD
    review of "necessary resources certifications" is "an important
    means by which SLD implements the Commission's directive to SLD to
    take steps to curb waste, fraud, and abuse in the schools and
    libraries universal service support mechanism").