**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | FOIA Control Nos. 2003-524,  |
|                                  | *) | 2003-525, and 2003-526       |
| RANDY R. HERSCHAFT, ASSOCIATED   | ** |                              |
| PRESS                            |    |                              |
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| On Requests for Inspection of    | *) |                              |
| Records                          | ** |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted: March 16, 2007 Released: March 21, 2007**

By the Commission:

1.  The Commission has before it three applications for review, filed by
    Randy Herschaft, Associated Press, of the denials by the Enforcement
    Bureau (EB or Bureau) of three Freedom of Information Act (FOIA)
    requests. For the reasons stated below, we deny the applications for
    review.

# BACKGROUND

2.  Herschaft's three FOIA requests all concern the Continuing Property
    Record (CPR) audits of the Regional Bell Operating Companies (RBOCs)
    conducted in the late 1990s.[^1] The former Accounting Safeguards
    Division (ASD) of the former Common Carrier Bureau (CCB or the
    Bureau)[^2] conducted audits of the RBOCs' hard-wired central office
    equipment to determine whether the carriers' records were in
    compliance with Part 32 of the Commission's rules.[^3] The Bureau
    denied each of Herschaft's FOIA requests because they seek internal
    Commission records protected by FOIA Exemption 5 and confidential
    commercial records protected by FOIA Exemption 4.[^4]

A. **[The FOIA Requests]{.underline}**

3.  In *FOIA 2003-524*, Herschaft sought copies of "any and all briefing
    materials used by Commission staff to brief the Hill on the
    Continuing Property Record (CPR) Audits of the then seven regional
    bell operating companies (Ameritech, Bell Atlantic, BellSouth,
    NYNEX, Pacific Bell, Southwestern Bell and US West Telephone
    Companies), conducted by the Accounting Safeguards Division of the
    Common Carrier Bureau in the late 1990s."[^5] The Bureau sought, and
    the RBOCs provided, responses to this FOIA.[^6] In *Decision* *FOIA
    2003-524*, the Bureau determined that the requested materials are
    exempt from disclosure under Exemption 5 of the FOIA, which protects
    from compulsory disclosure "inter-agency or intra-agency
    memorand\[a\] or letters which would not be available by law to a
    party other than an agency in litigation with the agency."[^7] In
    addition, the Bureau found that four pages contained material
    containing confidential financial information that is exempt from
    disclosure under Exemption 4 of the FOIA, which protects from
    compulsory disclosure "trade secrets and commercial or financial
    information obtained from a person \[that are\] privileged or
    confidential."[^8]

4.  In *FOIA 2003-525*, Herschaft sought copies of "workpapers/notebooks
    produced in the \[CPR\] Audits of seven regional Bell operating
    companies...conducted by the Accounting Safeguards Division of the
    Common Carrier Bureau in the late 1990s."[^9] The request sought
    materials containing information submitted in conjunction with a
    Commission audit conducted pursuant to section 220 of the
    Communications Act, as amended (the Act).[^10] Section 220(f) of the
    Act prohibits Commission staff from "divulg\[ing\] any fact or
    information which may come into \[the staff's\] knowledge during the
    course of an examination of books or other accounts . . . except
    insofar as he may be directed by the Commission or by a court."[^11]
    In *Decision 2003-525*, the Bureau determined that the materials
    sought in *FOIA 2003-525* were exempt from disclosure under
    Exemptions 4 and 5 of the FOIA, and that disclosure of the materials
    was not in the public interest. The Bureau analyzed the
    confidentiality of the commercial and financial information
    submitted in the course of the audit using the general test
    applicable to Exemption 4 of the FOIA as set forth in *National
    Parks and Conservation Ass'n. v. Morton*.[^12] Applying the second
    prong of the *National Parks* test, the Bureau concluded that the
    information sought in the FOIA Request constitutes commercially
    sensitive data, the disclosure of which would likely cause
    "substantial harm to the competitive position" of the RBOCs.[^13]
    The Bureau found that Herschaft had failed to demonstrate the
    significant public interest necessary to overcome the general
    prohibition against disclosure of section 220 audit materials.[^14]
    The Bureau further concluded that the FOIA request covered audit
    work papers generated by the staff while conducting the audit and
    that these materials, whether or not they contained confidential
    Exemption 4 information, were exempt from disclosure pursuant to
    Exemption 5 of the FOIA.[^15] The Bureau further concluded that "no
    meaningful non-exempt information could be segregated from the
    documents."[^16]

5.  In the third request, *FOIA 2003-536*, Herschaft sought "(1)
    correspondence/ communications between then-Commissioners Powell,
    Tristani, Ness, Furchtgott-Roth, and Chairman Kennard or their aides
    and the auditors who oversaw the \[CPR\] Audits of seven regional
    bell operating companies" and (2) "correspondence/communications to
    and from the management of the Common Carrier Bureau and to and from
    the Accounting Safeguards Division management relating to the
    \[CPR\] Audits."[^17] The Bureau concluded that all materials
    requested in *FOIA 2003-526* are deliberative process materials,
    reflecting preliminary and advisory views of Commission personnel
    involved in the audits, disclosure of which could compromise the
    Commission's internal deliberative process.[^18] The Bureau
    therefore found that all of the materials requested are exempted
    from disclosure under Exemption 5 of the FOIA, and the Bureau found
    that disclosure of the materials is not in the public interest.[^19]

    B. **[The Applications for Review]{.underline}**

6.  Herschaft filed applications for review of each of the Bureau's FOIA
    decisions.[^20] Herschaft implies that the Bureau did not make the
    showing necessary to withhold responsive documents from disclosure
    pursuant to FOIA Exemption 5. In this regard, Herschaft says the
    burden is on the agency under Exemption 5 to prove that any withheld
    records are predecisional and deliberative, but he never directly
    asserts that the Commission failed to make these showings. With
    respect to documents withheld pursuant to FOIA Exemption 4,
    Herschaft claims that the RBOCs' arguments that the documents would
    expose trade secrets or competitive information are erroneous
    because "a large part of what we seek to explore is the work of the
    FCC auditors and how commission staff dealt with the CPR audits'
    findings."[^21] In each application for review, Herschaft argues
    that disclosure of the requested material is in the public interest
    because "the audits consumed substantial government resources" and
    because disclosure was necessary to an assessment of whether the
    audit findings were appropriately addressed.[^22] Herschaft
    maintains further that the posting on the FCC's website of the audit
    reports was not sufficient to assess the validity of RBOC criticisms
    of the auditors' methods or alleged discrepancies in the information
    provided by the RBOCs. Herschaft seeks release of "all disclosable
    non-exempt portions \[of the records sought\] that are reasonably
    segregable."[^23]

7.  Verizon, BellSouth, SBC, and Qwest filed oppositions to the
    Applications for Review. Verizon points out that the Commission has
    made available to the public a significant amount of information
    about the CPR audits, including the audit staff's preliminary
    findings, the staff report, and the responses of the audited
    companies.[^24] In addition, Verizon asserts that it made available
    certain highly confidential documents, subject to a protective
    order.[^25] Verizon further states that the United States Court of
    Appeals for the District of Columbia Circuit determined in *Qwest
    Communications*[^26] that CPR audit data may not be released to the
    public pursuant to a FOIA request.[^27] BellSouth argues that
    Herschaft's application for review presents no new facts or
    arguments from the initial FOIA requests and that the public
    interest arguments raised are identical to those considered and
    rejected by the Bureau.[^28] BellSouth maintains that none of the
    specific factors necessary to grant an application for review, as
    set forth in the Commission's rules, have been demonstrated in the
    *AFRs*.[^29] In particular, BellSouth argues that the Commission is
    compelled by statute to protect the confidentiality of audit data
    and may release such data only in rare cases.[^30] SBC urges the
    Commission to follow its longstanding policy of protecting the
    confidentiality of materials submitted by carriers in the course of
    its audits under FOIA Exemption 4 and protecting audit reports and
    other internal agency documents regarding audits as exempt from
    disclosure under Exemption 5.[^31] SBC asserts that the Exemption 4
    material should not be released under *National Parks.*[^32] SBC
    also asserts that at least some of the Exemption 4 material was
    voluntarily provided to the auditor and should not be disclosed for
    that reason.[^33] Finally, Qwest maintains that Herschaft fails to
    meet the standards required for an application for review.[^34]
    Qwest argues that disclosure of the withheld documents would "be
    detrimental to Qwest's commercial relationships" and that the
    previous disclosure of the audit reports -- as opposed to the raw
    audit data sought by Herschaft -- by the Commission "strikes a
    proper balance between Qwest's interest in its proprietary
    commercial data and the public interest."[^35] Qwest claims that
    Herschaft has failed to present any public interest arguments that
    warrant a departure from the Commission's longstanding policy of
    treating the requested records as confidential and not subject to
    disclosure pursuant both to FOIA Exemption 4 and 5.[^36]

# DISCUSSION

8.  We affirm the Bureau's decisions in *Decisions 2003-524, 525 and
    526* to withhold the Commission's internal deliberative process
    records pursuant to FOIA Exemption 5 and the carriers' confidential
    commercial and financial information pursuant to FOIA Exemption 4.
    We find that Herschaft has failed to demonstrate that
    reconsideration of the Bureau's action is warranted and we therefore
    deny the *AFRs*.[^37]

## Internal Commission Records

9.  The Bureau correctly withheld the internal Commission records
    documents pursuant to FOIA Exemption 5. FOIA Exemption 5 permits us
    to withhold "inter-agency or intra-agency memorandums or letters
    which would not be available to a party other than an agency in
    litigation with the agency."[^38] Normally, such papers are
    privileged and not available to private parties through the
    discovery process and by extension not through FOIA because "their
    disclosure would tend to restrain the commitment of ideas to
    writing, would tend to inhibit communication among Government
    personnel, and would, in some cases, involve premature disclosure of
    their contents."[^39]

10. As explained in each of the Bureau's FOIA Decisions, the courts have
    interpreted Exemption 5 as incorporating certain common law
    privileges developed in civil discovery cases including, *inter
    alia,* the deliberative process privilege.[^40] Exemption 5 thus
    exempts from disclosure predecisional materials that reflect the
    consultative and decision-making process through which agency
    policies are developed.[^41] Recommendations and opinions of agency
    personnel expressed prior to adoption of agency policy, including
    draft decisions and reports, are exempt from disclosure under
    Exemption 5.[^42]

11. Although Herschaft never directly challenges the sufficiency of the
    Bureau's Exemption 5 findings, he implies in the *AFRs* that the
    Bureau failed to demonstrate that the documents requested satisfy
    the requirements of the deliberative process privilege.[^43]
    Herschaft also argues that release of the requested documents is in
    the public interest.

12. To invoke the deliberative process privilege, the Commission must
    establish two prerequisites: the materials requested must be: (1)
    predecisional; and (2) deliberative.[^44] Documents are considered
    to be predecisional if they are "antecedent to the adoption of
    agency policy."[^45] We find, as did the Bureau,[^46] that the
    documents responsive to each of Herschaft's FOIA requests predate
    the Commission's issuance of the final CPR audit reports in 1999.
    The documents do not contain final policy decisions of the agency
    but rather are part of the deliberative process leading to a final
    decision. We therefore agree with the Bureau that all of the
    requested documents are predecisional.

13. We next address the question of whether the documents responsive to
    each of Herschaft's FOIA requests are deliberative. Courts have
    found that the critical factor in determining whether material
    requested pursuant to the FOIA is deliberative in nature "is whether
    disclosure of the information would 'discourage candid discussion
    within the agency'"[^47] and whether the document reflects "the
    give-and-take of the consultative process."[^48] The exemption thus
    "covers recommendations, draft documents, proposals, suggestions,
    and other subjective documents which reflect the personal opinions
    of the writer rather than the policy of the agency."[^49] The
    decision that the privilege applies thus rests on the conclusion
    that, unless protected from disclosure, "information of that type
    would not flow freely within the agency."[^50]

14. In *Decision 2003-524*, the Bureau explained that the Commission
    staff's internal briefing materials prepared in anticipation of
    congressional briefings on the CPR audits contain the "preliminary
    and advisory views of Commission personnel involved in the CPR
    audits to the Commissioners regarding the audits and the options the
    Commissioners might elect as a result of the audits."[^51] The
    Bureau properly concluded that disclosure of such internal materials
    "could discourage the free analysis of future audits because staff
    members may fear that their individual questions, judgments,
    conclusions, and advice will be subjected to public scrutiny," thus
    jeopardizing the Commission's ability to develop policies and reach
    decisions through a deliberative process. [^52] Moreover, it is well
    established that briefing materials relating to congressional
    testimony satisfy the requirements of the deliberative process
    privilege and are protected under Exemption 5.[^53] Those testifying
    before Congress are "entitled to have a full and frank discussion"
    with staff concerning "issues, priorities, and policy matters" that
    will be the subject of the testimony.[^54] The sharing of any
    portion of the materials with congressional staff during a briefing
    does not waive Exemption 5 protection.[^55] We therefore uphold the
    Bureau's decision to withhold Exemption 5 materials requested by
    FOIA 2003-524.

15. The Bureau ruled in *Decision 2003-525* that the requested documents
    -- workpapers generated by Commission staff in the course of the CPR
    audits -- were exempt from disclosure under Exemption 5 of the FOIA
    (as well as Exemption 4, discussed below) and that disclosure was
    not in the public interest. The Bureau interpreted the request to
    include "documents relating to the Commission auditors' assessment
    of information submitted by the carriers in the course of the
    audits," including material generated by staff, [^56] and found that
    such documents, whether or not they contained carriers' confidential
    commercial or financial information, were exempt from disclosure
    pursuant to Exemption 5.

16. We again affirm the Bureau's conclusion. The workpapers represent
    the staff's internal recommendations and opinions integral to the
    deliberative process.[^57] The Commission's longstanding policy has
    been to treat audit materials prepared pursuant to section 220 of
    the Act as deliberative process documents that, consistent with
    Exemption 5, generally should not be disclosed to the extent they
    present staff findings and recommendations to assist the Commission
    in pre-decisional deliberations.[^58] For these reasons, we find
    that the Bureau appropriately withheld the work paper materials
    generated by staff, e.g., staff notes, proposed decisions and
    memoranda, under Exemption 5.

17. Finally, in *Decision 2003-*526, the Bureau denied Herschaft's
    request for internal correspondence between Commissioners or their
    aides and the auditors conducting the CPR audits and between the
    management of the Common Carrier Bureau and the Accounting
    Safeguards Division management relating to the CPR audits pursuant
    to FOIA Exemption 5. The requested documents reflect the
    give-and-take of the consultative process within an agency and are
    the kind of intra-agency communications that Exemption 5 is intended
    to protect from disclosure.[^59] Commissioners and Bureau management
    routinely seek information from staff as they weigh their policy
    options before a final agency decision is made. If such exchanges
    are disclosed to the public, the quality of decision-making would be
    undermined, and the free flow of information within the agency would
    be stifled.

18. Herschaft argues in each *AFR* that "overriding public interest
    concerns" warrant release of the requested documents and overcome
    the protection provided by FOIA Exemption 5.[^60] With respect to
    all of the audits, Herschaft argues disclosure is warranted to
    determine whether the auditors were hasty or arbitrary in their
    determinations. [^61] In the *2003-525 AFR* concerning the audit
    work papers, Herschaft also argues that disclosure is warranted
    because the CPR audit reports released by the Commission did not
    provide sufficient information to determine the accuracy of the
    RBOCs' claims that the design of the audits was flawed.[^62]
    Herschaft maintains that, because the CPR audits were conducted with
    public funds, the public has a right to examine "the fruit of all
    that labor."[^63] Further, Herschaft argues that questions remain as
    to whether consumers' phone bills have been increased as a result of
    failure to correct the unjustified costs identified in the
    audits.[^64] The fact that public funds were used to conduct the
    audits does not distinguish them from any other situation in which
    the deliberative process privilege applies. Nor does the possibility
    of errors in the audits distinguish them from any other agency
    actions. As the Bureau pointed out, the Commission posted the audit
    reports on its website.[^65] To the extent Herschaft argues that the
    publicly released reports do not satisfy the objectives Herschaft
    sets forth, we find that Herschaft has not offered sufficient public
    interest arguments that warrant the disruption of and damage to the
    agency's deliberative process that would result from the release of
    these predecisional internal documents.

19. Herschaft also seeks release of those portions of the requested
    documents that are not protected by the deliberative process and are
    segregable from the protected portions.[^66] Herschaft points out
    that FOIA requires that "any reasonably segregable portion of a
    record shall be provided to any person requesting such record after
    deletion of the portions which are exempt under this
    subsection."[^67] After a review of the documents requested pursuant
    to each of Herschaft's FOIA requests, the Bureau concluded that
    there are no reasonably segregable portions that may be released.
    Because Exemption 5 is concerned not merely with the substantive
    content of government records, but with the integrity of the
    government's deliberative process itself, factual information may be
    withheld when disclosure would threaten an agency's ability to
    conduct its decision-making processes.[^68] Therefore, factual
    materials that would expose the subjective judgment of agency
    personnel or the manner in which an internal deliberative process is
    conducted is protected under Exemption 5.[^69]

20. We uphold the Bureau's determination that the Exemption 5 materials
    do not contain reasonably segregable factual portions. In the case
    of the congressional briefing materials requested pursuant to *FOIA
    2003-524*, the documents represent the internal deliberations of
    Commission staff and, to the extent that factual material is
    included, it reflects the subjective judgment of staff as to what
    facts are important and how the facts fit together. The factual
    material thus is inextricably linked with the deliberative process
    materials. In addition, as explained in the Bureau's ruling and
    discussed below, four of the pages withheld under Exemption 5 also
    contain confidential financial information that is also exempt from
    disclosure under Exemption 4 of the FOIA.[^70] The documents located
    in connection with *FOIA 2003-525* are audit-related materials. The
    portions representing the submissions by carriers are exempt from
    disclosure pursuant to Exemption 4; the other materials represent
    the internal work papers of the Commission's auditors. We agree with
    the Bureau's assessment that no portion of the internal staff work
    papers may be disclosed without revealing the deliberative process
    of the auditors as to the significance of the included factual
    materials. Any factual material included in the workpapers would
    expose the pre-decisional subjective judgments of agency personnel
    or the conduct of the internal deliberative process and is protected
    under Exemption 5.[^71] Finally, all of the internal e-mail
    correspondence that was the subject of *FOIA 2003-526*, as explained
    fully above, represents the deliberations of the agency's decision
    makers and therefore cannot be disclosed without revealing the
    process by which the Commissioners considered options as they
    formulated their audit policy. To the extent that the requested
    internal correspondence includes factual material, the factual
    information is so inextricably connected to the deliberative
    material that its disclosure would expose the agency's
    deliberations. If revealing factual information is tantamount to
    revealing the agency's deliberations, courts have permitted the
    facts to be withheld.[^72]

## Confidential Commercial Records

21. Under FOIA Exemption 4, agencies may withhold documents obtained
    from a person that contain trade secrets and commercial and
    financial information that are privileged or confidential.[^73] The
    exemption affords protection to submitters who are required to
    furnish commercial or financial information to the government by
    safeguarding them from the competitive disadvantages that could
    result from disclosure. As the Bureau explained, the D.C. Circuit
    has set forth a two-part test for determining whether commercial or
    financial information contained in required submissions is
    "confidential" under Exemption 4. [^74] Such information is
    confidential "if disclosure of the information is likely
    ...either...(1) to impair the Government's ability to obtain
    necessary information in the future; or (2) to cause substantial
    harm to the competitive position of the person from whom the
    information was obtained."[^75]

22. The RBOCs maintained that disclosure of the information sought by
    Herschaft in FOIA 2003-525 would impose substantial competitive harm
    because, for example, it would disclose types of equipment purchased
    by the RBOCs, the equipment vendors, and the prices paid for the
    equipment.[^76] This information constitutes the kind of
    commercially sensitive data protected by FOIA Exemption 4.[^77]

23. Section 220 of the Communications Act, as amended, 47 U.S.C. § 220,
    provides additional protections for information submitted to the
    Commission in connection with audits. Specifically, section 220(f)
    prohibits any employee of the Commission from disclosing "any fact
    or information which may come to his knowledge during the course of
    examination of books or other accounts...except insofar as he may be
    directed by the Commission or by a court."[^78] The Commission has a
    longstanding policy of treating information obtained from carriers
    during audits as confidential in recognition of carriers' legitimate
    interest in protecting such information from disclosure to
    competitors. The Commission has stated that it may publicly disclose
    audit information "in rare cases" and only "where the underlying
    concerns that normally lead us to withhold audit information from
    public disclosure are diminished by the minimal risk posed by the
    release of aggregate data or, where the data is otherwise not highly
    commercially sensitive and disclosure is justified by significant
    public interest factors."[^79] Further, as the Bureau noted in its
    ruling, the United States Court of Appeals for the District of
    Columbia Circuit previously reviewed the Commission's decision to
    release data collected by the CPR audits pursuant to a protective
    order.[^80] The Court overturned the FCC's decision to release
    material holding that, while the FCC may release audit material in
    "rare cases," the FCC had failed to adequately justify even the
    limited release of the audit data under a protective order.[^81]
    Unconditional disclosure to the public through the FOIA process
    would require even greater justification than release to parties who
    sign a protective order.

24. Our policy against disclosure of raw audit data is based on our
    recognition that carriers have a legitimate interest in protecting
    confidential information and that disclosure "could result in
    competitive injury to those who provide such information to the
    Commission."[^82] In light of the D.C. Circuit's decision in *Qwest
    Communications,* and our own longstanding policy concerning
    confidential information submitted to the agency, we will disclose
    such information only in "rare cases." Herschaft states in his AFR
    that the public interest requires disclosure of the raw audit data
    requested because public funds were used to conduct the audits.
    Herschaft also states that questions raised in the press concerning
    the relationship of rising telephone bills and the errors uncovered
    by the audits justify disclosure of the information. Herschaft
    raised these same public interest arguments in the initial FOIA
    request, and the Bureau concluded that they did not constitute a
    persuasive showing warranting disclosure. The fact that public money
    was spent on an audit does not distinguish the CPR audits from most
    other matters in which the Commission receives information under a
    claim of confidentiality. Nor would press reports asserting possible
    errors in the audits justify the public release of confidential
    commercial and financial data. It would undermine Exemption 4 and
    section 220 to release confidential commercial and financial
    information merely because the press raises sometimes speculative
    criticisms about the information relied upon by the Commission in
    its decisions or quotes parties that may find it in their
    self-interest to criticize certain Commission decisions. Further,
    releasing confidential commercial or financial information in those
    circumstances would make it impossible for a regulatee to predict
    when the Commission would protect the confidentiality of such
    information. We find no basis to depart from our longstanding policy
    against disclosure of confidential information that is protected
    under Exemption 4 and we therefore deny Herschaft's requests.

# ORDERING PARAGRAPHS

25. Accordingly, IT IS ORDERED that Randy R. Herschaft's applications
    for review of FOIA 2003-524, 2003-525, and 2003-526 ARE DENIED.
    Herschaft may seek judicial review of this action pursuant to 5
    U.S.C. § 552(a)(4)(b).

26. 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]: *See generally Ameritech Corporation Telephone Operating
    Companies' Continuing Property Records Audit*, 15 FCC Rcd 1784
    (1999) (*Continuing Property Records Audit*), *petition for review*
    *denied in part and remanded sub nom., Qwest Communications Int'l,
    Inc. v. FCC,* 229 F.3d 1172 (D.C. Cir. 2000) (*Qwest
    Communications)*.

[^2]: CCB is now the Wireline Competition Bureau (WCB).

[^3]: *See* 47 C.F.R. Part 32.

[^4]: Three letters from Maureen F. Del Duca, Chief, Investigations and
    Hearing Division, Enforcement Bureau to Randy Herschaft, Associated
    Press (Oct. 7, 2003) (denying FOIA Control Nos. 2003-524, 2003-525,
    and 2003-526 (*Decision 2003-524 Decision 2003-525 and Decision
    2003-526* respectively)).

[^5]: Letter from Randy Herschaft, Associated Press to Shoko Hair, FOIA
    Officer (Aug. 13, 2003) (*FOIA 2003-524*).

[^6]: Letter from Steven L. Earnest, Esq., BellSouth Corp., to William
    Knowles-Kellett, EB (Sept. 19, 2003); letter from Daphne E. Butler,
    Esq., Qwest, to William Knowles-Kellett (Sept. 19, 2003); letter
    from Terri L. Hoskins, Esq., SBC Telecommunications, Inc. to William
    Knowles-Kellett (Sept. 22, 2003); and letter from Marie Breslin,
    Esq., Verizon, to William Knowles-Kellett (Sept. 23, 2003).

[^7]: 5 U.S.C. § 552(b)(5); *see also 47* C.F.R. § 0.457(e) (Commission
    implementing rule).

[^8]: 5 U.S.C. § 552(b)(4); *see also* 47 C.F.R. § 0.457(d) (Commission
    implementing rule).

[^9]: Letter from Randy Herschaft to Shoko Hair (Aug. 13, 2003) (*FOIA
    2003-525*).

[^10]: 47 U.S.C. § 220. Pursuant to section 220(c), carriers are
    required to provide the Commission access to "all accounts, records,
    and memoranda, including all documents, papers and
    correspondence..." 47 U.S.C. § 220(c).

[^11]: 47 U.S.C. § 220(f). Commission rules delegate authority to the
    Enforcement Bureau to disclose information subject to section 220(f)
    in response to a FOIA request. 47 C.F.R. § 0.311(a)(6).

[^12]: 498 F.2d 765 (D.C. Cir. 1974) (*National Parks). National Parks*
    established a two-prong test for determining whether information was
    "confidential" for purposes of Exemption 4: "\[c\]ommercial or
    financial matter is 'confidential'...if disclosure of the
    information is likely . . . either . . . (1) to impair the
    Government's ability to obtain necessary information in the future;
    or (2) to cause substantial harm to the competitive position of the
    person from whom the information was obtained." *Id.* at 770. The
    court subsequently held that the *National Parks* test applied to
    situations where a party must submit information to a federal agency
    on a mandatory basis. *Critical Mass Energy Project v. Nuclear
    Regulatory Commission,* 975 F.2d 871, 878-79 (D.C. Cir. 1992) (*en
    banc*), *cert. denied,* 507 U.S. 984 (1993). Submissions made
    pursuant to section 220(c) are mandatory. *See Continuing Property
    Records Audit*, 15 FCC Rcd at 1793 n.44 (1999), *remanded on other
    grounds sub nom. Qwest Communications, supra*.

[^13]: *Decision 2003-525* at 3.

[^14]: *Decision 2003-525* at 4. The Bureau relied in part on *Qwest
    Communications*, 229 F.3d at 1183-84, in which the United States
    Court of Appeals for the District of Columbia Circuit overturned the
    FCC's decision to release the raw data collected in the CPR audits
    pursuant to a protective order, holding that, while section 220(f)
    authorizes its disclosure, the FCC had failed to demonstrate that
    release of these documents was consistent with its policy to release
    such materials only in "rare cases" and when justified by
    significant public interest factors.

[^15]: *Decision 2003-525* at 4.

[^16]: *Id.* at 6.

[^17]: Letter from Randy Herschaft to Shoko Hair (Aug. 13, 2003) (*FOIA
    2003-526*).

[^18]: *Decision 2003-526* at 3.

[^19]: *Id.*

[^20]: Letters from Randy Herschaft to Office of General Counsel,
    Federal Communications Commission (Nov. 5, 2003) (*FOIA 2003-524
    AFR, FOIA 2003-525 AFR, and FOIA 2004-526 AFR respectively,* or
    collectively *AFRs*).

[^21]: *See, e.g., FOIA 2003-524* at 2.

[^22]: *See, e.g., id.* at 1-2.

[^23]: *Id.*

[^24]: Letter from Marie Breslin, Asst. Vice President, Federal
    Regulatory Advocacy, Verizon to Laurence Schecker, Office of General
    Counsel, FCC (Nov. 20, 2003) (Verizon Opposition) at 1.

[^25]: *Id.* at 2.

[^26]: *Qwest Communications Int'l, Inc. v. FCC,* 229 F.3d 1172 (D.C.
    Cir. 2000).

[^27]: *Id*.

[^28]: Letter from Stephen L. Earnest, Legal Department, BellSouth
    Corp., to Laurence Schecker (Nov. 20, 2003) (BellSouth Opposition).

[^29]: *Id. at* 2-4, *citing* 47 C.F.R. § 1.115(b)(2).

[^30]: BellSouth Opposition at 4-5, citing *Examination of Current
    Policy Concerning the Treatment of Confidential Information
    Submitted to the Commission,* Report and Order, 13 FCC Rcd. 24816
    (1998)(*Confidential Information Policy*), *recon. denied*, 14 FCC
    Rcd. 20128 (1999)*.* .

[^31]: Letter from Jim Lamoureux, Senior Counsel, SBC
    Telecommunications, Inc. to Laurence Schecker (Nov. 20, 2003) (SBC
    Opposition) at 2-3.

[^32]: *See* *id.* at 4, *citing* *National Parks*, 498 F.2d at 770.

[^33]: *See id,* at 4, *citing* *Critical Mass*, 975 F.2d at 879.

[^34]: Letter from Daphne E. Butler, Senior Attorney, Qwest, to Laurence
    Schecker (Nov. 20, 2003) (Qwest Opposition) at 2.

[^35]: *Id. at* 4.

[^36]: *Id.* at 2-3.

[^37]: *See* 47 C.F.R. § 1.115(b)(2)(i-v).

[^38]: 5 U.S.C. § 552(b)(5); *see also* 47 C.F.R. § 0.457(e)(Commission
    implementing regulation).

[^39]: *See* 47 C.F.R. § 0.457(e).

[^40]: *See Coastal States Gas Corp. v. Dept. of Energy,* 617 F.2d 854,
    862 (D.C.Cir. 1980) (*Coastal States*); *Jordan v. Dept. of
    Justice,* 591 F.2d 753, 772 (D.C. Cir. 1978) (*Jordan*). *See also
    Tax Analysts v. Internal Revenue Service,* 294 F.3d 71, 76 (D.C.
    Cir. 2002) (Exemption 5 incorporates deliberative process privilege)

[^41]: *Coastal States,* 617 F.2d at 866; *see also Vaughn v. Rosen,*
    523 F.2d 1136, 1144 (D.C. Cir. 1975) (predecisional materials must
    be part of give-and-take by which a decision is made)

[^42]: *See NLRB v. Sears Roebuck & Co.,* 421 U.S. 132, 152-53, n. 18
    (1975) (*Sears, Roebuck*); *Access Reports v. Department of
    Justice,* 926 F. 2d 1192, 1194-95 (D.C. Cir. 1979).

[^43]: *See, e.g., FOIA 2003-524 AFR* at 3.

[^44]: *Petroleum Info. Corp. v. Dep't of the Interior,* 976 F.2d 1429,
    1434 (D.C. Cir. 1992).

[^45]: *Jordan,* 591 F.2d at 774.

[^46]: *See Decision 2003-525* at 4; *Decision 2003-524* at 2; *Decision
    2003-526* at 3.

[^47]: *Access Reports,* 926 F.2d at 1195 (*quoting* *Dudman
    Communications Corp. v. Dep't of the Air Force,* 815 F.2d 1565, 1568
    (D.C. Cir. 1987) (*Dudman*)).

[^48]: *Coastal States,* 617 F.2d at 866.

[^49]: *Id.*

[^50]: *Mead Data Cent v. Dep't of the Air Force,* 566 F. 2d 242, 256
    (D.C. Cir. 1977).

[^51]: *Decision 2003-524* at 3.

[^52]: *Id.*

[^53]: *See, e.g., Judicial Watch, Inc. v. Dep't of Justice,* 306 F.
    Supp. 2d 58, 71-72 (D.D.C. 2004) (protecting e-mail briefing for the
    FERC Chairman in anticipation of congressional testimony); *see
    also* *Williams v. Dep't of Justice,* 556 F. Supp. 63, 65 (D.D.C.
    1982) (protecting briefing papers for Attorney General prior to
    appearance before congressional committee); *see also Access
    Report,* 926 F.2d at 1196-97 (protecting memorandum on legislative
    strategy).

[^54]: *Judicial Watch*, 306 F. Supp. 2d at 72.

[^55]: When an agency shares information with Congress without
    disclosing the information to the public, the courts have
    consistently ruled that the exchange of information does not result
    in waiver of FOIA exemptions. The FOIA statute provides that
    "\[t\]his section is not authority to withhold information from
    Congress." 5 U.S.C. § 552(d). In *Murphy v. Dep't of the Army*, 613
    F.2d 1151, 1155-56 (D.C.Cir. 1979), the court observed that if
    "disclosure of information to Congress \[were\] disclosure to the
    whole world," it would be "inconsistent with the obvious purpose of
    the Congress to carve out for itself a special right of access to
    privileged information not shared by others." Failure to protect
    information disclosed to Congress "would effectively transform
    \[this\] section . . . into a congressional declassification
    scheme." *Id.* *See also Rockwell v. Dep't of Justice*, 235 F.3d
    598, 604-05 (D.C. Cir. 2001) (finding no waiver of Exemption 5
    protection for documents provided to a congressional oversight
    subcommittee).

[^56]: *Decision 2003-525* at 4.

[^57]: *See Coastal States,* 617 F.2d at 866 (Exemption 5 protects
    consultative process).

[^58]: *See Confidential Information Policy*, 13 FCC Rcd at 24847-49.

[^59]: *See, e.g., Access Reports*, 926 F.2d at 1194 ("a document is
    deliberative if it 'reflects the give-and-take of the consultative
    process'"), *quoting* *Coastal States*, 617 F.2d at 866.

[^60]: *See, e.g., FOIA 2003-254 AFR* at 1.

[^61]: *See, e.g., FOIA 2003-525 AFR* at 2.

[^62]: *FOIA 2003-525 AFR* at 2.

[^63]: *Id.*

[^64]: *Id.* at 2.

[^65]: *See FCC Releases Audit Report on RBOC's Property Record,* News
    Release, Report No. CC 99-3 (rel. Feb. 25, 1999).

[^66]: *See, e.g., 2003-254 AFR* at 3.

[^67]: *See id.* *citing* 5 U.S.C. § 552(b).

[^68]: *E.g., Sears, Roebuck,* 421 U.S. at 150.

[^69]: *Wolfe v. Dept. of Health and Human Services,* 839 F.2d 768,
    774-76 (D.C. Cir. 1988)(*en banc*) (*Wolfe*); *Dudman*, 815 F.2d at
    1568*.*

[^70]: *See* discussion of the documents withheld pursuant to FOIA
    Exemption 4 at Section II.B, *infra.*

[^71]: *See Wolfe,* 839 F.2d at 774-75; *Russell v. Dept. of the Air
    Force,* 682 F.2d 1045, 1047-48 (D.C. Cir. 1982).

[^72]: *See, e.g., Quarles v. Dep't of Navy,* 893 F.2d 390, 392-93 (D.C.
    Cir. 1990) (deliberative process privilege covers construction cost
    estimates because their disclosure would reveal the agency's
    deliberations).

[^73]: 5 U.S.C. § 552(b)(4).

[^74]: *National Parks,* 498 F.2d at 770.

[^75]: *Id.*

[^76]: Qwest Opposition at 4.

[^77]: *See, e.g, Gulf & Western Indus., Inc. v. United States*, 615
    F.2d 527, 530 (D.C. Cir. 1979); *Southwestern Bell Telephone Co.*,
    12 FCC Rcd 7770, 7771 (1997) (substantial competitive harm from
    release of equipment cost information); SBC Opposition at 5.

[^78]: 47 U.S.C. § 220(f).

[^79]: *Confidential Information Policy,* 13 FCC Rcd at 24848-49.

[^80]: *Qwest Communications,* 229 F.3d at 1175.

[^81]: *Id.*

[^82]: *Confidential Information Policy,* 13 FCC Rcd at 24848.