**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | FOIA Control Nos. 2007-397   |
|                                  | *) | and 2007-432                 |
| MICHAEL RAVNITZKY                | ** |                              |
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| On Requests for Inspection of    | *  |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted: March 5, 2008 Released: March 7, 2008**

By the Commission:

**I. INTRODUCTION**

1.  The Commission has before it three applications for review (AFRs)
    filed by Michael Ravnitzky of the decisions denying in part his
    Freedom of Information Act (FOIA) requests for records related to
    the processing of the FOIA request filed by the National Association
    of Broadcasters (NAB) for certain records concerning XM Radio, Inc.
    and Sirius Satellite Radio, Inc.[^1] We deny two of Ravnitzky's AFRs
    and dismiss the third AFR as moot.

    **II.** **BACKGROUND**

2.  On May 25, 2007, Ravnitzky filed a FOIA request seeking "the
    administrative tracking file" for the NAB FOIA (2007-235). [^2] The
    Enforcement Bureau (EB) granted in part and denied in part his
    request, providing Ravnitzky with 28 pages of records, but
    withholding 34 pages of internal Commission e-mails pursuant to FOIA
    Exemption 5.[^3] Ravnitzky filed an AFR of EB's decision.[^4]

3.  On July 16, 2007, Ravnitzky filed another FOIA request for NAB
    FOIA-related records, restricted to those records dated or
    originated after June 5, 2007.[^5] EB responded that it located "no
    responsive records."[^6] Ravnitzky filed an AFR of the second EB
    decision.[^7] Upon receipt of this AFR, the Office of General
    Counsel (OGC) issued a supplemental response to the July 16, 2007
    FOIA request providing Ravnitzky with nine additional records
    consisting of hundreds of pages of pleadings related to the
    application(s) for review filed with respect to the NAB-related FOIA
    but withholding approximately 60 internal agency e-mails pursuant to
    FOIA Exemption 5.[^8] Ravnitzky sought review of OGC's determination
    by filing another AFR.[^9]

    **III.** **DISCUSSION**

4.  We deny two of Ravnitzky's AFRs and dismiss the third AFR as moot.
    Ravnitzky offers three arguments in his AFRs. First, Ravnitzky's
    First 2007-432 AFR only claimed that it was unlikely that there were
    no records in response to his FOIA request, as stated by EB.[^10]
    OGC's supplemental responses identified various records and provided
    Ravnitzky with hundreds of pages of records. [^11] These responses
    moot Ravnitzky's First 2007-432 AFR claims, especially given that
    any continuing concerns by Ravnitzky are set forth in the Second
    2007-432 AFR.

5.  Second, he claims that portions of the 34 pages withheld by EB and
    the 60 e-mails withheld by OGC are either "are not actually
    deliberative," or "are not truly pre-decisional."[^12] FOIA
    Exemption 5 permits the Commission to withhold documents that are
    part of a continuing process of agency decisionmaking.[^13] The
    pages withheld by EB and OGC consist of e-mails among Bureau staff,
    or with other Bureaus and OGC, concerning the handling of the NAB
    FOIA. The e-mails contain staff advice and recommendations
    concerning the Bureau's proposed decision with respect to the NAB
    FOIA request and the AFRs in that FOIA proceeding. Therefore, the 34
    pages withheld by EB and the 60 e-mails withheld by OGC are properly
    protected from disclosure under FOIA Exemption 5.[^14]

6.  Finally, Ravnitzky argues that portions of the records withheld by
    EB and OGC that are factual, non-deliberative or not pre-decisional
    should be segregated and released to him, or that as a matter of our
    discretion we should release the withheld records.[^15] While FOIA
    Exemption 5 does not apply to purely factual materials, only factual
    materials severable from their context must be released.[^16] There
    are indeed some factual statements in the 34 pages of records
    withheld by EB and the 60 e-mails withheld by OGC, but these
    materials are inextricably intertwined with the deliberative process
    portions of the records and cannot be practicably segregated and
    released. Our review of the records responsive to Ravnitzky's
    request here confirms that it would be impractical to segregate any
    factual or non-deliberative portions of the records withheld by the
    Bureau.[^17] In addition, our review confirms that there are no
    post-decisional materials in the records withheld from Ravnitzky. We
    also conclude that discretionary disclosure of the records is not
    appropriate because "\[d\]isclosure of the information in question
    would harm the Commission's interest underlying the deliberative
    process privilege, which is intended to 'prevent injury to the
    quality of agency decisions.'"[^18]

    **IV. ORDERING CLAUSES**

7.  IT IS ORDERED that the first application for review in FOIA Control
    No. 2007-432 by Michael Ravnitzky IS DISMISSED AS MOOT. IT IS
    FURTHER ORDERED that the application for review in FOIA Control No.
    2007-397 and the second application for review in FOIA Control No.
    2007-432 by Michael Ravnitzky ARE DENIED. Ravnitzky may seek
    judicial review of this action pursuant to 5 U.S.C. § 552(a)(4)(b).

8.  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]: Letter from David H. Solomon, Wilkinson Barker Knauer LLP, to
    Anthony J. Dale, Managing Director (Mar. 22, 2007) (FOIA Control No.
    2007-235).

[^2]: Letter from Michael Ravnitzky to Shoko B. Hair, FOIA Officer (May
    25, 2007) (FOIA Control No. 2007-397).

[^3]: Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement
    Division, EB, to Michael Ravnitzky (July 12, 2007), *citing* 5
    U.S.C. § 552(b)(5).

[^4]: Letter from Michael Ravnitzky to Office of General Counsel (rec'd
    July 25, 2007) (2007-397 AFR).

[^5]: E-mail from Michael Ravnitzky to FOIA@FCC.gov (July 16, 2007)
    (FOIA Control No. 2007-432).

[^6]: Letter from Kathryn S. Berthot to Michael Ravnitzky (Sept. 19,
    2007).

[^7]: Letter from Michael Ravnitzky to Office of General Counsel (Sept.
    22, 2007) (First 2007-432 AFR).

[^8]: Letter from Joel Kaufman, Associate General Counsel, to Michael
    Ravnitzky (Oct. 18, 2007) (1st Supplemental 2007-432 Response). The
    supplemental response also noted that three additional responsive
    records were submitted with requests for confidential treatment by
    unnamed XM employees. *Id*. at 2. Therefore, copies of Ravnitzky's
    FOIA request were served on the unnamed employees pursuant to 47
    C.F.R. § 0.461(d)(3). Ravnitzky notified OGC that he did not wish to
    receive the confidential portions of these three records. *See*
    Letter from Michael Ravnitzky to Joel Kaufman (Oct. 21, 2007).
    Subsequently, both the unnamed XM employees and XM Radio submitted
    oppositions to the second Ravnitzky FOIA, indicating they opposed
    release of the unredacted records but did not oppose release of
    redacted records. *See* Letter from Lanny A. Breuer, Covington &
    Burling LLP, to Joel Kaufman (Nov. 1, 2007) (opposition of unnamed
    XM employees); Letter from Scott Blake Harris and Mark Grannis,
    Harris, Wiltshire & Grannis, LLP, to Joel Kaufman (Nov. 13, 2007)
    (opposition of XM). OGC then released redacted versions of these
    three records to Ravnitzky. *See* Letter from Joel Kaufman to
    Michael Ravnitzky (Nov. 18, 2007) (2nd Supplemental 2007-432
    Response). Ravnitzky did not seek review of this decision.

[^9]: Letter from Michael Ravnitzky to Office of General Counsel (Oct.
    21, 2007) (Second 2007-432 AFR).

[^10]: *See* First 2007-432 AFR, at 1 ("Where is the paper?").

[^11]: *See* 1st Supplemental 2007-432 Response; 2nd Supplemental
    2007-432 Response.

[^12]: 2007-397 AFR at 1; Second 2007-432 AFR at 1.

[^13]: *See, e.g.*, *Coastal States Gas Corp. v. Dep't of Energy*, 617
    F.2d 854, 868 (D.C. Cir. 1980) (Exemption 5 is applicable to a
    document that is part of the course of the deliberative process);
    *see also Michael Ravnitzky*, 16 FCC Rcd 21745, 21747 (2001)
    (*Ravnitzky*) (same).

[^14]: *See Ravnitzky*, 16 FCC Rcd at 21747.

[^15]: 2007-397 AFR at 1; Second 2007-432 AFR at 1-2.

[^16]: *EPA v. Mink*, 410 U.S. 73, 87-88 (1973); *Mead Data Central,
    Inc. v. U.S. Dep't of the Air Force*, 566 F.2d 242, 260 (D.C. Cir.
    1977).

[^17]: Ravnitzky erroneously suggests (Second 2007-432 AFR) that the
    segregability requirement of the FOIA requires a line-by-line review
    of the records. *See Doherty v. U.S. Dep't of Justice*, 775 F.2d 49,
    53 (2d Cir. 1985) ("\[T\]he fact that there may be some nonexempt
    matter in the documents which are predominantly exempt does not
    require the district court to undertake the burdensome task of
    analyzing approximately 300 pages of documents, line-by-line.");
    *Neufeld v. IRS*, 646 F.2d 661, 666 (D.C. Cir. 1981) (segregation is
    not required when it would "impose significant costs on the agency
    and produce an edited document of little informational value,"
    *citing Mead Data Central*, 566 F.2d at 260), *overruled on other
    grounds*, *Church of Scientology of California v. IRS*, 792 F.2d 193
    (D.C. Cir. 1986), *aff'd*, 484 U.S. 9 (1987).

[^18]: *NLRB v. Sears, Roebuck & Co.*, 421 U.S. 132, 151 (1975); *see
    also Ravnitzky*, 16 FCC Rcd at 21748. We note that Ravnitzky did not
    seek discretionary release of these records in his initial FOIA
    requests, and as we previously held in *Ravnitzky*, 16 FCC Rcd at
    21748, we cannot fault the Bureau or Office handling the initial
    request for not considering discretionary release of the records.
    Further, a Bureau or Office handling an initial FOIA request is not
    authorized to release internal Commission records containing
    non-public information. *See* 47 C.F.R. § 19.735-203(a).