**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | FOIA Control No. 21-118      |
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| BILL McCONNELL                   | ** |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted: September 18, 2001 Released: September 24, 2001**

By the Commission:

1.  The Commission has before it an application for review[^1] filed by
    Bill McConnell, Assistant Editor of *Broadcasting & Cable* magazine,
    of a decision of the Mass Media Bureau (the Bureau) granting in part
    and denying in part his Freedom of Information Act (FOIA)
    request[^2] for documents related to the Public Notice postponing
    the auction of FM broadcast construction permits for reasons of
    administrative convenience.[^3] For the reasons stated below, we
    deny the application for review.

2.  In response to the FOIA request, the Bureau located and withheld
    pursuant to FOIA Exemption 5, 5 U.S.C. § 552(b)(5), two drafts of
    the Public Notice prepared by a staff attorney and forwarded to the
    Chief of the Bureau for his consideration.[^4] The [Bureau
    Decision]{.underline} explained that these drafts are "predecisional
    and deliberative in nature" and were being withheld to "ensure that
    the Bureau's action is judged on the basis of reasons set forth in
    the Public Notice actually promulgated."[^5] Mr. McConnell seeks
    review of this decision, asserting that the reasons for delaying the
    auction "may differ from the vague 'for reasons of administrative
    convenience' stated as the rationale in the public notice."[^6]

3.  Upon review, we affirm the decision of the Bureau to withhold the
    drafts of the [Public Notice]{.underline}. It is well established
    that draft decisions may properly be withheld under FOIA Exemption
    5.[^7] It is our practice not to release draft decisions.[^8] This
    is to prevent public confusion that might be caused by disclosure of
    reasons and rationales that were not ultimately the grounds for the
    agency\'s action.[^9] The Commission expresses the basis for its
    actions in its published decisions. Here, the requester is
    specifically seeking to uncover a rationale for the decision
    different from that stated in the [Public Notice]{.underline}.[^10]
    FOIA Exemption 5 protects the agency deliberative process from
    precisely this type of probing.[^11]

4.  Mr. McConnell suggests that Exemption 5 does not apply because the
    drafts were written after the decision was made to delay the
    auction, [^12] but in the same sentence admits that there were still
    ongoing deliberations concerning the explanation for the
    decision.[^13] So long as the documents are part of a continuing
    process of agency decisionmaking, Exemption 5 may be properly
    invoked to withhold draft decisions.[^14] The Bureau therefore
    properly withheld the drafts of the [Public Notice]{.underline}.

5.  IT IS ORDERED that Mr. McConnell's application for review IS DENIED.
    Mr. McConnell may seek judicial review of the denial in part of its
    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 Abernathy, Copps, and
    Martin.

    FEDERAL COMMUNICATIONS COMMISSION

    Magalie Roman Salas Secretary

[^1]: Letter from Bill McConnell, Assistant Editor, *Broadcasting &
    Cable* to Jane Mago, General Counsel (May 22, 2001) (App. for Rev.)

[^2]: Electronic mail (e-mail) from Bill McConnell, *Broadcasting &
    Cable* to \<<FOIA@FCC.GOV>\> (Apr. 16, 2001) (FOIA Control No.
    21-118).

[^3]: "Auction for FM Broadcast Construction Permits Postponed Until
    December 5, 2001; Broadcast Auction 37 FM Rescheduled from May 9,
    2001; Freeze on FM Minor Change Applications Lifted," [Public
    Notice]{.underline}, DA 01-619 (Mar. 7, 2001) ([Public
    Notice]{.underline}).

[^4]: Letter from James J. Brown for Roy J. Stewart, Chief, Mass Media
    Bureau to Bill McConnell, Assistant Editor, *Broadcasting & Cable*
    (May 16, 2001) ([Bureau Decision]{.underline}). The Bureau also
    located and provided to the requester various e-mail messages.

[^5]: [Id.]{.underline}

[^6]: App. for Rev. [citing]{.underline} e-mail from Audio Services
    Division (ASD) Chief Linda Blair to ASD staff (Mar. 7, 2001)
    (produced by the Bureau in response to this FOIA).

[^7]: [See, e.g]{.underline}., [Coastal States Gas Corp. v. Department
    of Energy]{.underline}, 617 F.2d 854, 866 (D.C. Cir. 1980) ([Coastal
    States]{.underline}).

[^8]: [E.g.]{.underline}, [Norcom Communications Corp.]{.underline}, 14
    FCC Rcd 8055 (1999) (recent example of our refusal to release draft
    decision pursuant to FOIA Exemption 5).

[^9]: [See, e.g.]{.underline}, [Russell v. Department of the Air
    Force]{.underline}, 682 F.2d 1045, 1048 (D.C. Cir. 1982)
    ([Russell]{.underline}); [Jordan v. Department of
    Justice]{.underline}, 591 F.2d 753, 772- 73 (D.C. Cir. 1978) (en
    banc).

[^10]: [See]{.underline} App. for Rev.

[^11]: [E.g.]{.underline}, [National Wildlife Federation v. United
    States Forest Serv.]{.underline}, 861 F.2d 1114, 1122 (9th Cir.
    1988) ("To the extent that \[the requestor\] seeks through its FOIA
    request to uncover any discrepancies between the findings,
    projections, and recommendations between the draft prepared by
    lower-level personnel and those actually adopted, . . . it is
    attempting to probe the editorial and policy judgments of the
    decisionmakers").

[^12]: [See]{.underline} App. for Rev. [citing]{.underline} Blair
    e-mail, [supra]{.underline} n. 6.

[^13]: [See]{.underline} App. for Rev.

[^14]: [E.g.]{.underline}, [Coastal States]{.underline}, 617 F.2d at 868
    (Exemption 5 is applicable to a document that is a part of the
    course of the deliberative process).