**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | FOIA Control No. 2005-441    |
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| Electronic Privacy Information   | ** |                              |
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| On Request for Inspection of     | ** |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted: May 24, 2006 Released: May 26, 2006**

By the Commission:

**I. BACKGROUND**

1\. By this order, we grant in part and deny in part an application for
review filed September 29, 2005 by the Electronic Privacy Information
Center (EPIC) of the denial in part of its request under the Freedom of
Information Act (FOIA).[^1] In its FOIA request,[^2] EPIC sought
information related to Commission proceedings involving the provision of
enhanced 911 (E911) services by voice over internet protocol (VoIP)
providers. Specifically, EPIC requested: (1) communications between FCC
employees and representatives of the telecommunications industry
regarding the development of a method for determining a customer's
location during an E911 call, with or without the customer having to
self report the information; (2) communications between FCC employees
and policy researchers concerning technology that would allow
determination of a customer's location during an E911 call, with or
without the customer having to self report the information; and (3)
policy or legal memoranda reflecting final determinations about methods
for determining a customer's location during an E911 call, with or
without the customer having to self report the information.[^3]

2\. In its response, the Commission's Wireline Competition Bureau (WCB)
withheld several categories of records pursuant to the deliberative
process privilege of FOIA Exemption 5, 5 U.S.C. § 552(b)(5).[^4] Among
the records withheld under Exemption 5 were several characterized as
"Other Advisory Documents." As to these records, WCB stated: "The
documents provide background information as well as analysis and
proposed strategies with respect to the E911 matter. Disclosure of such
materials would negatively impact the open and candid internal
discussions among Commission personnel that are so necessary to the
day-day function of the government." *Id*. at 5.

3\. In its application for review, EPIC argues that at least portions of
these records do not fall within Exemption 5 and should have been
disclosed. In particular, EPIC states, "The reference to 'background
information' \[in WCB's Ruling\] indicates that factual information is
contained within these documents, and has not been adequately segregated
from truly deliberative materials."[^5] EPIC observes that the FOIA
requires that "\[a\]ny reasonably segregable portion of a record shall
be provided to any person requesting such a record after deletion of the
portions which are exempt under this subsection," citing 5 U.S.C. §
552(b). EPIC further argues that factual material is distinct from and
not included within deliberative material.[^6] Moreover, EPIC argues
that because factual material was improperly withheld from records in
the "Other Advisory Material" category, all withheld records should be
reviewed for segregable factual material.

**II. DISCUSSION**

4\. We find no reason to disturb WCB's ruling in most respects, but
modify it to release ten pages that WCB withheld. As an initial matter,
we disagree with EPIC that the reference to "background information" in
WCB's Ruling necessarily implies that segregable factual material was
improperly withheld as Exemption 5 deliberative process material.
Deliberative process material consists of documents reflecting advisory
opinions, recommendations, and deliberations comprising part of the
process by which governmental decisions and policies are formulated.[^7]
Such material may be withheld because its disclosure would tend to
inhibit the frank discussion of legal and policy matters and government
decision making would be poorer as a result.[^8] The deliberative
process privilege, however, does not include documents consisting only
of compiled factual material or purely factual material that is
severable from its context.[^9]

5\. But under some circumstances, factual material may nevertheless fall
within the scope of the deliberative process privilege. Where, for
example, an agency's staff has prepared summaries of evidence to assist
the agency in its decision making process, courts have held that
disclosure of such summaries would represent an unwarranted intrusion
into the agency's deliberative process since it would tend to reveal
thinking as to the importance or unimportance of certain facts.[^10] In
such situations, courts have pointed out that the fact/opinion test must
not be applied mechanically. [^11]

6\. Consistent with these principles, we find that, with the exceptions
noted below, the entirety of the records characterized as "Other
Advisory Documents" fall within the scope of the deliberative process
privilege encompassed by Exemption 5. The records in question consist of
ten documents totaling 103 pages of memoranda and "briefing sheets." The
documents contain discussion of pending VoIP E911 issues, including how
various technical options would work, staff advice, and summaries of
factual material prepared by staff members of WCB intended to assist in
the resolution of VoIP E911 issues. In nearly all cases, release of
these materials would tend to reveal the staff's view of the facts and
the law. The disclosure of such documents would thus represent an
unwarranted intrusion into the Commission's deliberative process and
they accordingly will be withheld pursuant to Exemption 5. The "briefing
sheets," however, have three appendices that contain segregable factual
material. Accordingly, we will release six pages of factual material
concerning the deployment of VoIP E911 technology. This information was
compiled from publicly available sources, was not manipulated for
purposes of staff analysis, and is in the form of charts that can be
readily segregated from the deliberative portions of the briefing sheets
without revealing their context. In addition, we will release two press
releases, each two pages in length that were improperly withheld because
they were attached to exempt documents. These documents will be redacted
to remove internal Commission notations.

7\. EPIC also contends that because, according to its reading of WCB's
Ruling, WCB improperly withheld segregable portions of the records in
the "Other Advisory Documents" category, we should review all categories
of records for segregable material. In processing a FOIA request, staff
routinely reviews all records so that it may redact segregable portions
and disclose material not covered by Exemption 5, as required by the
FOIA. We have reviewed staff's determination and found no segregable
material other than that described in the last paragraph. The documents
in question consist of staff memoranda, drafts of Commission orders,
internal staff e-mails, and staff notes regarding VoIP E911 issues. For
the reasons discussed in paragraphs 5-6, above, disclosure of such
documents, or portions thereof, would represent an unwarranted intrusion
into the Commission's deliberative process.

8\. Accordingly, IT IS ORDERED that the application for review, filed
September 29, 2005, by the Electronic Privacy Information Center IS
GRANTED IN PART AND DENIED IN PART. EPIC may seek judicial review of the
denial in part of its FOIA request pursuant to 5 U.S.C. § 552(a)(4)(B).

9\. The following officials are responsible for this action: Chairman
Martin, Commissioners Copps, Adelstein, and Tate.

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

[^1]: Letter from Joseph T. Hall, Assistant Bureau Chief, Management,
    Wireline Competion Bureau to Jessica Shannon, Electronic Privacy
    Information Center (Sept. 6, 2005) ("WCB's Ruling").

[^2]: Letter from Jessica Shannon, EPIC, to Managing Director \[FCC\]
    (Jun. 3, 2005).

[^3]: *See* *id*. at 1.

[^4]: *See* WCB's Ruling at 2-3. Exemption 5 exempts from disclosure
    "inter-agency or intra agency memorandums or letters which would not
    be available by law to a party other than an agency in litigation
    with the agency." *See, e.g., NLRB v. Sears Roebuck & Co.,* 421 U.S.
    132 (1975) (continued . . .) (Continued from previous page)
    (Exemption 5 encompasses confidential intra-agency opinions,
    disclosure of which would be injurious to the consultative functions
    of government).

[^5]: Application for Review at 2.

[^6]: *Id., citing EPA v. Mink*, 410 U.S. 73, 89 (1973).

[^7]: *See NLRB v. Sears Roebuck & Co*., 421 U.S. at 150.

[^8]: *Id*.

[^9]: *See EPA v. Mink*, 410 U.S. at 87-88.

[^10]: *See Mapother v. Dep't. of Justice*, 3 F.3d 1533, 1538 (D.C. Cir.
    1993); *Montrose Chemical Corp. v. Train*, 491 F.2d 63, 68-71 (D.C.
    Cir. 1974).

[^11]: *See Mapother*, 3 F.3d at 1537.