**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of                 | *  | FOIA Control No. 2006-364    |
|                                  | *) |                              |
| DANIEL E. RIORDAN,               | ** |                              |
|                                  |    |                              |
| ON-TECH CONSULTING, INC.,        | *  |                              |
|                                  | *) |                              |
| On Request for Inspection of     | ** |                              |
| Records                          |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
+----------------------------------+----+------------------------------+

**MEMORANDUM OPINION AND ORDER**

**Adopted:** February 22, 2007 **Released:** February 27, 2007

By the Commission:

1.  The Commission has before it an application for review filed by
    Daniel E. Riordan, President of On-Tech Consulting, Inc., of the
    denial by the Wireline Competition Bureau (WCB or Bureau) of his
    Freedom of Information Act (FOIA) request. We deny the application
    for review.

    **I. BACKGROUND**

2.  Riordan initially filed a FOIA request for "the application
    processing procedures which the Wireline Competition Bureau recently
    . . . approved for use by the Schools and Libraries Division (SLD)
    of the Universal Service Administrative Company (USAC) in processing
    applications for funding under the Schools and Libraries Program of
    the Universal Service Fund \[USF\] . . . for Program Year 2006."[^1]
    WCB denied his request and withheld the Schools and Libraries
    Program Integrity Assurance FCC Form 471 Review Procedures for
    Fiscal Year 2006 (*PIA Form 471 Procedures*)[^2] pursuant to FOIA
    Exemptions 2 and 7(E), 5 U.S.C. §§ 552(b)(2) and 552(b)(7)(E).[^3]
    The Bureau explained that release of these records "would supply
    detailed information concerning the review process and provide a
    blueprint for those wishing to frustrate or defeat such
    reviews."[^4] WCB stated release "would undermine USAC's (acting on
    behalf of the Commission) investigatory process."[^5]

3.  Riordan then filed a second FOIA request.[^6] This request posed
    questions seeking "clarification" of the response to his earlier
    FOIA request.[^7] He also asked for the release of any segregable
    portions of the record and the total number of pages withheld in
    FOIA Control No. 2006-221. WCB again denied his request, restating
    the conclusions it had reached earlier as to why it would not
    release the *PIA Form 471 Procedures*.[^8] The Bureau refused to
    respond to Riordan's questions because "\[t\]he FOIA is a means to
    obtain records from a federal agency, not to obtain answers to
    questions."[^9] The Bureau also reviewed the *PIA Form 471
    Procedures* and determined that there were no segregable portions
    that could be released.[^10] WCB did, however, indicate that a total
    of approximately 700 pages were withheld.[^11] Riordan sought review
    of the Bureau's decision.[^12]

    **II. DISCUSSION**

4.  We find no reason to disturb the Bureau's determination that the
    *PIA Form 471 Procedures* should be withheld under FOIA Exemption
    7(E) or alternatively under FOIA Exemption 2.

    **A.** ***Exemption 7(E)***

5.  Exemption 7(E) protects all law enforcement "records or information
    compiled for law enforcement purposes, but only to the extent that
    the production of such law enforcement records or information . . .
    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."[^13] This
    exemption provides categorical protection to information related to
    law enforcement techniques.[^14]

6.  Exemption 7(E) is applicable to the *PIA Form 471 Procedures*
    because the term "law enforcement" as used in that exemption
    includes the FCC's enforcement responsibilities under Section 254 of
    the Communications Act, as amended.[^15] The manual sought here is
    used to review applications for funding from the USF to protect the
    integrity of the program. That review ensures that the program is
    administered and applications are granted in accordance with the law
    and implementing regulations. Violations noted in this review
    process often result in enforcement pursuant to section 254.[^16]

7.  As we have discussed twice before, the procedures used by USAC to
    review applications for funding from the USF and the records of
    those reviews are highly sensitive and, if released, would cause
    great damage to the e-rate program.[^17] In both *Inter-Tel
    Technologies* and *Harrington-Lueker*¸ we withheld records that were
    part of the Schools and Library Division's selective review process
    because release of the individual review records would reveal the
    techniques and guidelines for conducting reviews of
    applications.[^18] Riordan provides no reason to depart from our
    precedents. The manual at issue here contains guidelines for both
    application review and PIA review. Thus, there is an even more
    compelling reason to withhold the record than in prior cases because
    Riordan here seeks the guidelines for review themselves, not just
    records from which such guidelines could be gleaned. It is hard to
    imagine a clearer "blueprint for those wishing to frustrate or
    defeat such reviews."[^19]

8.  Riordan claims that the exemption is not applicable to this record
    because it is "used for routine audit and compliance purposes" and
    not yet "used for a law enforcement purpose."[^20] However, as we
    have explained, the *PIA Form 471 Procedures* are used for law
    enforcement purposes. It thus meets the threshold criteria of
    Exemption 7.[^21] Therefore, the document at issue here is compiled
    for a law enforcement purpose.

9.  Riordan asserts that Exemption 7(E) does not apply to this record
    because USAC is either "a private company that has been named
    administrator of the program" or "a private subcontractor" and
    therefore does not qualify as a law enforcement agency under the
    FOIA Exemption.[^22] It is true that USAC is a not-for-profit
    corporation appointed by the FCC as the "permanent Administrator of
    the federal universal service mechanisms."[^23] Contrary to
    Riordan's assertion, however, this fact does not render Exemption
    7(E) inapplicable to his request. USAC must act in accordance with
    the Commission's orders, rules and directives, and it is clear that
    the FCC has authorized USAC to review applications in the course of
    its administration of the program.[^24] In this regard, USAC acts
    under the FCC's oversight[^25]and its actions regarding applications
    are subject to FCC review.[^26] Thus, USAC's actions in reviewing
    applications are performed under the FCC's authority to ensure that
    the e-rate program is administered in accordance with all applicable
    law. Indeed, the *PIA Form 471 Procedures* document sought by
    Riordan was reviewed and approved by WCB.[^27] It is therefore an
    agency record that was created or obtained by the FCC and is under
    the agency's control.[^28] Therefore, we do not agree with Riordan
    that Exemption 7(E) is inapplicable.

    **B. *Exemption 2***

10. Alternatively, we believe the *PIA Form 471 Procedures* may properly
    be withheld pursuant to FOIA Exemption 2, which exempts from
    mandatory disclosure records that are "related solely to the
    internal personnel rules and practices of an agency."[^29] Riordan
    claims Exemption 2 is not applicable here because the relevant
    document does not involve "'personnel' policies or procedures."[^30]
    However, the courts have made clear that the language of Exemption 2
    embraces a variety of internal rules, procedures, and guidelines,
    and does not reach only "personnel" matters.[^31] Thus, we conclude
    the *PIA Form 471 Procedures* qualifies for consideration under
    Exemption 2.

11. Exemption 2 encompasses two types of records -- records of internal
    matters of a relatively trivial nature, often referred to as "low 2"
    records, and records of more substantial internal matters that, if
    disclosed, would risk circumvention of a statute or agency
    regulation, commonly referred to as "high 2" records.[^32] The *PIA
    Form 471 Procedures* document sought by Riordan is properly withheld
    under the standards of "high 2."[^33] Under the "high 2" analysis,
    sensitive materials are exempt from mandatory disclosure if the
    requested document is predominantly internal,[^34] it involves no
    "secret law" of the agency,[^35] and disclosure "significantly risks
    circumvention of agency regulations or statutes."[^36] Whether there
    is a public interest in disclosure is not determinative;[^37]
    instead, we must determine whether disclosure would "benefit those
    attempting to violate the law and avoid detection."[^38]

12. Contrary to Riordan's assertion,[^39] the *PIA Form 471 Procedures*
    is a "predominantly internal" document that qualifies for exemption
    from disclosure under the "high 2" analysis.[^40] Riordan asserts
    that the record does not meet this standard because it is used "in
    deciding whether to proceed against or to take action affecting
    members of the public."[^41] But the legal standards for e-rate
    applications are set forth in the regulations and applications, not
    in the *PIA Form 471 Procedures*. The *PIA Form 471 Procedures*
    establishes staff review techniques for e-rate applications and is
    thus much like the Medicare Policy Guidelines found to be exempt
    from disclosure under Exemption 2 in *Dirksen.*[^42] The guidelines
    at issue in *Dirksen* were designed "to determine whether, at the
    first stage of claims processing, claims for billed services should
    be paid, denied, or reviewed more closely."[^43] The court readily
    found these guidelines to be internal, noting "they merely
    categorize for speed in processing, which claims are to be
    automatically granted, denied, or reviewed in more detail."[^44] The
    *PIA Form 471 Procedures* document is also like the guidelines for
    oversight of student financial aid programs found by the court in
    *Wiesenfelder* to be predominantly internal under FOIA Exemption 2
    because the guidelines were used for enforcement purposes only. The
    guidelines in *Wiesenfelder* "alerted the Department that an
    educational institution may be seriously mismanaging its Title IV
    funds," and provided "internal guidance to staff about how, when and
    where they should concentrate their regulatory oversight."[^45]

13. We also conclude that the *PIA Form 471 Procedures* satisfies the
    second part of the "high 2" analysis -- that disclosure would
    "significantly risk\[\] circumvention of agency regulations or
    statutes."[^46] As we have already explained, release of the *PIA
    Form 471 Procedures* would reveal the techniques and guidelines for
    conducting reviews of applications.[^47] Thus, in addition to
    Exemption 7(E), the record is properly withheld under Exemption 2.

    **C. *Segregability of Records***

14. Finally, Riordan seeks release of "reasonably segregable portions of
    the guidelines which do not pose a risk of circumvention of the law"
    if released.[^48] Agencies may withhold the entire record where
    nonexempt material is so "inextricably intertwined" that disclosure
    would "leave only essentially meaningless words and phrases."[^49]
    As one court recently observed in declining to order the agency to
    segregate nonexempt information, "\[t\]he necessary redaction would
    require the agency to commit significant time and resources to a
    task that would yield a product with little, if any, informational
    value."[^50] We have reviewed the *PIA Form 471 Procedures* and
    conclude that each page is replete with details of the process for
    reviewing the many categories of applications. Our review of the
    document confirms that there are no reasonably segregable portions
    that may be released to Riordan without revealing the procedures
    utilized by USAC that could be used to circumvent the law. Moreover,
    our review of the documents confirms that each page is replete with
    details of the process for reviewing the many categories of
    applications. We therefore deny Riordan's request for release of any
    portions of the record.

    **III. ORDERING CLAUSES**

15. IT IS ORDERED that the application for review by Daniel E. Riordan
    IS DENIED. Riordan may seek judicial review of this action pursuant
    to 5 U.S.C. § 552(a)(4)(b).

16. The officials responsible for this action are the following
    Commissioners: Chairman Martin, Commissioners Copps, Adelstein, Tate
    and McDowell.

    FEDERAL COMMUNICATIONS COMMISSION

    Marlene H. Dortch

    Secretary

[^1]: FOIA Control No. 2006-221 (Mar. 6, 2006).

[^2]: USAC asserted the confidentiality of the PIA Form 471 Procedures
    when it submitted the document to the Bureau. *See* Letter from Mel
    Blackwell, Acting Vice President, Schools and Libraries Division,
    USAC to Narda Jones, Chief, Telecommunications Access Policy
    Division, WCB (Jan. 20, 2006), at 2 (the document "relates to
    \[USAC's\] internal operating procedures in the Schools and
    Libraries program and public disclosure of those procedures would
    compromise program integrity and compromise USAC's ability to
    protect the USF against waste, fraud and abuse").

[^3]: Letter from Kirk S. Burgee, Associate Bureau Chief, WCB, to Dan
    Riordan (Apr. 4, 2006).

[^4]: *Id.*

[^5]: *Id.* (*citing Inter-Tel Technologies, Inc.*, 19 FCC Rcd 5204,
    5206 (2004)).

[^6]: FOIA Control No. 2006-364 (May 17, 2006). Riordan could have filed
    an application for review of FOIA 2006-221, *see* 47 C.F.R. §
    0.461(j), but chose to file this second request.

[^7]: Specifically, he asked for confirmation that procedures used by
    USAC are internal FCC procedures under FOIA Exemption 2, and that
    under FOIA Exemption 7(E) USAC had been given law enforcement
    responsibility. *Id.*

[^8]: Letter from Kirk Burgee to Dan Riordan (June 13, 2006), *citing*
    FOIA Exemptions 2 and 7(E).

[^9]: *Id.* (*citing* *Zemansky v. EPA*, 767 F.2d 569, 574 (9th Cir.
    1985)).

[^10]: *Id.*

[^11]: *Id.* *See* 5 U.S.C. § 552(a)(6)(F) (requiring that if records
    are withheld an agency must provide an estimate of the amount of
    denied information, unless doing so would undermine the protection
    provided by the exemption).

[^12]: Letter from Daniel E. Riordan, President, On-Tech Consulting,
    Inc., to Office of General Counsel (June 26, 2006) (AFR).

[^13]: 5 U.S.C. § 552(b)(7)(E).

[^14]: *Fisher v. U.S Dep't of Justice*, 772 F. Supp. 7, 12 n.9 (D.D.C.
    1991), *aff'd*, 968 F.2d 92 (D.C. Cir. 1992).

[^15]: 47 U.S.C. § 254. *See Schiller v. INS*, 205 F. Supp. 2d 648, 659
    (W.D. Tex. 2002) (law enforcement for purposes of FOIA includes
    regulatory proceedings): *see also J. David Stoner*, 5 FCC Rcd 6458,
    6460 (1990) ("Exemption 7 threshold met because enforcement of
    relevant law is within the statutory authority" of the Commission);
    *RCA Global Communications, Inc.*, 83 F.C.C.2d 356, 357 (1980)
    (same).

[^16]: *See* *Schools and Libraries Universal Service Support
    Mechanism*, 19 FCC Rcd 15808, 15813-22 (2004) (*Fifth Report &
    Order*) (discussing section 254 enforcement in the context of the
    schools and libraries program "to ensure program integrity and to
    detect and deter waste, fraud and abuse").

[^17]: *Inter-Tel Technologies*, 19 FCC Rcd at 5205-06; *Donna
    Harrington-Lueker*, 16 FCC Rcd 16591 (2001).

[^18]: *Inter-Tel Technologies*, 19 FCC Rcd at 5205-06;
    *Harrington-Lueker*, 16 FCC Rcd at 16592.

[^19]: *Inter-Tel Technologies*, 19 FCC Rcd at 5206, *citing*
    *Harrington-Lueker*, 16 FCC Rcd at 16592.

[^20]: AFR at 2, *citing* *John Doe Agency v. John Doe Corp.*, 493 U.S.
    146 (1989) (*John Doe Agency*). *John Doe Agency* held that
    documents originally compiled for non-law enforcement purposes could
    be gathered later for law enforcement purposes. 493 U.S. at 154. In
    reaching this conclusion, the Court observed that the FOIA requester
    itself recognized that the documents compiled once for the purpose
    of routine audits was not disqualified from being compiled again
    later for a different purpose. *Id.* The Court did not say that a
    routine audit manual could never have a law enforcement purpose.
    Other cases have recognized that guidelines that serve an auditing
    function can fall into the category of law enforcement material.
    *See, e.g.,* *Dirksen v. United States Dep't of Health and Human
    Svcs,* 803 F.2d 1456, 1459 (9th Cir. 1986) (*Dirksen*) (Exemption 2
    case).

[^21]: *See* *Tax Analysts v. IRS*, 294 F.3d 71, 79 (D.C. Cir. 2002)
    (under Exemption 7(E), "an agency may seek to block the disclosure
    of internal agency materials relating to guidelines . . . and
    procedures for law enforcement investigations and prosecutions, even
    when the materials have not been compiled in the course of a
    specific investigation. *See, e.g.*, *PHE, Inc. v. Dep't of
    Justice*, 983 F.2d 248, 250-51 (D.C. Cir. 1993) . . . ."). This
    formulation is consistent with *John Doe Agency*, 493 U.S. at 153,
    where the Court observed that "\[t\]he objects sought merely must
    have been 'compiled' when the Government invokes the Exemption."

[^22]: AFR at 1, 2.

[^23]: 47 C.F.R. § 54.701.

[^24]: *See Fifth Report & Order*, 19 FCC Rcd at 15810.

[^25]: *See id.,* 19 FCC Rcd at 15808, 15809, 15811, 15817 & n.49,
    15819, 15830 and 15835.

[^26]: 47 C.F.R. §§ 54.722 and 54.723.

[^27]: *See Fifth Report & Order*, 19 FCC Rcd at 15809 and 15835.

[^28]: *See, e.g.,* *Burka v. Dep't of Health & Human Svcs*, 87 F.3d
    508, 515 (D.C. Cir. 1996) (finding data tapes created and possessed
    by a contractor to be agency records because of extensive
    supervision exercised by agency which evidenced "constructive
    control").

[^29]: 5 U.S.C. § 552(b)(2).

[^30]: AFR at 1.

[^31]: *E.g.*, *Founding Church of Scientology v. Smith*, 721 F.2d 828,
    829-30 & n.2 (D.C. Cir. 1983) *citing Crooker v. ATF*, 670 F.2d
    1051, 1073 (D.C. Cir. 1981) (*en banc*) (*Crooker*); *see also
    Dawson B. Nail*, 6 FCC Rcd 7014 (1991).

[^32]: *See, e.g.*, *Schiller v. NLRB*, 964 F.2d 1205, 1207 (D.C. Cir.
    1992) (describing "low 2" and "high 2" aspects of Exemption 2).

[^33]: We agree with Riordan (AFR at 1) that "low 2" is not applicable
    to the manual.

[^34]: *See, e.g.¸* *Crooker*, 670 F.2d at 1074; *see also Kaganove v.
    EPA*, 856 F.2d 884, 886-87 (7th Cir. 1988) (noting that subsequent
    amendment of FOIA codified *Crooker*), *cert. den.*, 488 U.S. 1011
    (1989) (*Kaganove*).

[^35]: *Crooker*, 670 F.2d at 1073.

[^36]: Crooker, 670 F.2d at 1074; *Schiller v. NLRB*, 964 F.2d at 1208.

[^37]: *See* *Voinche v. FBI,* 940 F. Supp. 323, 328 (D.C. Cir. 1996),
    *aff'd per curiam*, No. 96-5304 (D.C. Cir. June 19, 1997), *citing*
    *Kaganove*, 856 F.2d at 888-89 and *Institute for Policy Studies v.
    Dep't of the Air Force*, 676 F. Supp. 3, 5 (D.D.C. 1987). *See also
    Crooker*, 670 F.2d at 1074 (it is not up to a court to balance
    public interest against any reason for avoiding disclosure). Thus,
    Riordan's assertion (AFR at 1) regarding the "genuine and
    significant public interest" in the e-rate program is not
    determinative.

[^38]: *Crooker*, 670 F.2d at 1054.

[^39]: AFR at 1.

[^40]: *See Crooker*, 670 F.2d at 1074.

[^41]: AFR at 1, *citing Crooker v. ATF* \[sic\], 601 F.2d 1, 5 (D.C.
    Cir. 1979). The name of the case cited by Riordan in the AFR is
    actually *Cox v. United States Dep't of Justice*, an Exemption 2
    decision that was later specifically rejected by the District of
    Columbia Circuit on other grounds in *Benavides v. Bureau of
    Prisons*, 993 F.2d 257, 258-59 (D.C. Cir. 1993). Riordan cites
    *Cox*, 601 F.2d at 5, for the proposition that a record cannot be
    deemed predominantly internal "if it sets standards used 'in
    deciding whether to proceed against or take action affecting members
    of the public.'" We note that *Cox* held that the manual in question
    was exempt from disclosure under Exemption 2. 601 F.2d at 5. S*ee
    also Crooker,*670 F.2d at 1081 (MacKinnon, J., concurring) ("no
    federal court has ever required the disclosure of a law enforcement
    manual, such as we have here, where the court found that disclosure
    would enable violators to escape detection"). In addition we note
    that, the United States District Court for the District of Columbia
    has subsequently recognized that Exemption 2 guidelines may provide
    guidance to staff about how, when, and where they should concentrate
    regulatory oversight. *See Wiesenfelder v. Riley*, 959 F. Supp. 532,
    535-37 (D.D.C. 1997) (*Wiesenfelder*).

[^42]: 803 F.2d 1456 (9th Cir. 1986). *See also Crooker*, 670 F.2d at
    1073 .

[^43]: *Dirksen*, 803 F.2d at 1457.

[^44]: *Id.* at 1458.

[^45]: 959 F. Supp. at 536-37. *See also Windels, Marx, Davies & Ives*
    *v. Dep't of Commerce,* 576 F. Supp. 405, 412 (D.D.C. 1983)
    (computer program predominantly internal where it detects possible
    violations but makes no attempt to modify or regulate public
    behavior).

[^46]: *See Crooker*, 670 F.2d at 1073-74 (BATF manual on investigative
    techniques could be used to evade the law); *Dirksen*, 803 F.2d at
    1458-59 ("Nor is it difficult to believe that, upon the submission
    of a barrage of claims fashioned to conform to the \[Medicare
    Policy\] Guidelines, the Guidelines would lose the utility they were
    intended to provide"); *Ginsburg, Feldman & Bress v. Federal Energy
    Admin.,* 591 F.2d 717, 730 (D.C. Cir.) ("To turn such manuals over
    to those who are the subject of regulatory supervision is to dig a
    den for the fox inside the chicken coop"), *aff'd en banc and per
    curiam by an equally divided court*, 591 F.2d 752 (D.C. Cir. 1978),
    *cert. den.*, 441 U.S. 906 (1979).

[^47]: *See* paragraphs 6-7, *supra*, *citing* *Inter-Tel Technologies*,
    19 FCC Rcd at 5205-06 and *Harrington-Lueker*, 16 FCC Rcd at 16592.

[^48]: AFR at 2.

[^49]: *E.g., Neufeld v. IRS*, 646 F.2d 661, 663 (D.C. Cir. 1981).

[^50]: *Assassination Archives & Research Center v. CIA*, 177 F. Supp.2d
    1, 9 (D.D.C. 2001).