**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of                 | *  | FOIA Control Nos. 2004-553   |
|                                  | *) | and                          |
| LEO A. WROBEL, JR.,              | ** |                              |
|                                  |    | 2005-034                     |
| PREMIERE NETWORK SERVICES, INC.  | *  |                              |
|                                  | *) |                              |
| On Requests for Inspection of    | ** |                              |
| Records                          |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
+----------------------------------+----+------------------------------+

**MEMORANDUM OPINION AND ORDER**

**Adopted: March 7, 2006 Released**: **March 10, 2006**

By the Commission:

1.  The Commission has before it two applications for review filed by
    Leo W. Wrobel, Jr., of Premiere Network Services, Inc. (Premiere),
    of the decisions of the Wireline Competition Bureau (WCB or Bureau)
    and the Office of General Counsel (OGC) responding to his Freedom of
    Information Act (FOIA) requests. For the reasons stated below, we
    deny the applications for review.

2.  **FOIA No. 2004-553.** Mr. Wrobel's first FOIA request sought
    correspondence from a former SBC Telecommunications (SBC) employee
    concerning alleged misconduct by SBC or mentioning Premiere, sent to
    the Commission on or about July 15, 2004.[^1] WCB conducted a search
    of Bureau files. In addition, the Commissioners' offices were asked
    to search for the correspondence. Neither the Bureau nor the
    Commissioners' offices were able to locate any responsive records,
    and the Bureau so notified Mr. Wrobel.[^2] Mr. Wrobel sought review
    of the Bureau's decision.[^3]

3.  In his application for review, Mr. Wrobel stated that he had
    obtained "a draft copy of the *very letter*" he had sought in his
    FOIA request, attached a copy of the "draft letter," and suggested
    that the Commission conduct additional searches to find the original
    correspondence.[^4] After searching its files again, the Bureau
    contacted Mr. Wrobel by telephone, informing him that the letter
    still had not been found.[^5] Mr. Wrobel indicated that the letter
    had been sent to the Commission by certified mail, and sent copies
    of the certified mail receipts to the Bureau.[^6] WCB continued to
    search for the letter within its files. WCB also arranged to search
    the files of the Consumer and Governmental Affairs Bureau (CGB) (the
    bureau that handles informal complaints), the Enforcement Bureau
    (EB) (the bureau that handles formal complaints), and the
    Commissioners' offices (as Mr. Wrobel had indicated that a copy of
    the letter had been sent to each Commissioner). Following this
    additional search, WCB informed Mr. Wrobel by telephone that no
    copies of the letter were located. Based on the telephone
    conversation with Mr. Wrobel, WCB, EB, CGB, and the Commissioners\'
    offices again searched for the letter sought in FOIA 2004-553. A
    copy of the letter addressed to Commissioner Adelstein was then
    located and provided to Mr. Wrobel, along with a request that he
    indicate whether he wished to pursue his application for review in
    light of the production of a copy of the letter.[^7] Mr. Wrobel
    replied that he wished to pursue his application for review.[^8]

4.  **FOIA No. 2005-034.** Mr. Wrobel's second FOIA request sought three
    pieces of correspondence sent on or about May 14, 2004, by him to
    Commissioners Copps, Martin, and Adelstein that he stated "were
    \[sent\] in response to a request by the Commissioners for informal
    information about allowing SBC to underwrite 'private commercial
    agreements.'"[^9] The offices of Commissioners Copps, Martin and
    Adelstein searched their files, but none were able to locate copies
    of Mr. Wrobel's correspondence. Similarly, WCB, CGB, and EB were
    unable to locate the correspondence in their files. OGC so informed
    Mr. Wrobel by letter dated December 2, 2004.[^10] Mr. Wrobel filed
    an application for review of this decision, appending a copy of the
    correspondence he sought in the initial FOIA request, which he
    indicated had been sent by FedEx.[^11]

5.  **Discussion.** Mr. Wrobel's applications for review essentially
    request that further searches be conducted for the correspondence
    sought in FOIAs 2004-553 and 2005-034. Ultimately, the basis for
    both of Mr. Wrobel's applications for review is that the Commission
    did not adequately search for the letters sent to the agency. The
    adequacy of a search under the FOIA is determined by a test of
    reasonableness.[^12] A search must be \"reasonably calculated to
    uncover all relevant documents.\"[^13] The reasonableness of a
    search depends, in part, on how the search was conducted in light of
    the scope of the request[^14] and the requester\'s description of
    the records sought.[^15]

6.  In accordance with procedures implemented after September 11, 2001,
    correspondence sent to a Bureau or the Commissioners is first routed
    to an off-site location for security screening.[^16] It is then
    forwarded to the headquarters building mail room for distribution to
    the appropriate office. Depending on the nature of the
    correspondence, even if it is addressed to a Commissioner, it may
    also be routed to the Bureau or Office responsible for the subject
    matter addressed in the correspondence. Therefore, the request for
    records sought by Mr. Wrobel was directed to several Bureaus in
    addition to the Commissioners, to ensure that a thorough and
    adequate search would be conducted. The Commissioners' offices, WCB,
    EB, and CGB searched more than once for the letter sought in FOIA
    2004-553 before one copy, addressed to Commissioner Adelstein, was
    located and provided to Mr. Wrobel.[^17] The fact that an initial
    search does not produce a particular document does not render the
    search inadequate.[^18] Similarly, repeated searches were conducted
    by the offices of Commissioners Copps, Martin and Adelstein and by
    WCB, CGB and EB for the correspondence requested in FOIA 2005-034,
    but none were able to locate the correspondence. The extensive,
    thorough search by WCB and others who might have been in possession
    of the requested records clearly was designed to uncover the
    relevant documents. We therefore conclude that the Bureaus and the
    Commissioners' offices conducted a reasonable search under the FOIA
    for the records sought by Mr. Wrobel in both instances.[^19]

7.  IT IS ORDERED that Leo A. Wrobel, Jr.'s applications for review ARE
    DENIED. Mr. Wrobel 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 and
    Tate.

    FEDERAL COMMUNICATIONS COMMISSION

    Marlene H. Dortch

    Secretary

[^1]: Letter from Leo A. Wrobel, Jr., to FOIA Officer (Aug. 6, 2004)
    (FOIA 2004-553).

[^2]: Letter from Joseph T. Hall, Assistant Bureau Chief, Management,
    WCB, to Leo A. Wrobel (Sept. 2, 2004) (FOIA 2004-553 Decision).

[^3]: Letter from Leo A. Wrobel to Joseph T. Hall (Sept. 17, 2004) (FOIA
    2004-553 Application for Review). We also note that the application
    for review was not filed in accordance with the Commission's rules.
    FOIA applications for review are properly directed to the Office of
    General Counsel, *see* 47 C.F.R. § 0.461(j), not the Bureau
    responding to the initial FOIA request. *See also* FOIA 2004-553
    Decision, at 1 ¶3 (indicating the proper procedure for filing a FOIA
    application for review).

[^4]: FOIA 2004-553 Application for Review (emphasis in original).

[^5]: [See]{.underline} letter from Leo A. Wrobel to Joseph T. Hall
    (Oct. 15, 2004) (FOIA 2004-553 Application for Review Supp.).

[^6]: Facsimile to Jocelyn Frye, WCB, from Sharon Wrobel, Premiere
    Network Services, Inc. (Oct. 7, 2004).

[^7]: Facsimile to Leo A. Wrobel from Jocelyn Frye (Oct. 15, 2004)
    transmitting letter to Leo A. Wrobel from Joseph Hall (Oct. 15,
    2004).

[^8]: FOIA 2004-553 Application for Review Supp.

[^9]: Letter from Leo A. Wrobel, Jr., to FOIA Officer (Oct. 15, 2004)
    (FOIA 2005-034).

[^10]: Letter from Joel Kaufman, Deputy Associate General Counsel, to
    Leo A. Wrobel, Jr. (Dec. 2, 2004) (FOIA 2005-034 Decision).

[^11]: Letter from Leo A. Wrobel to Joel Kaufman (Dec. 10, 2004) (FOIA
    2005-034 Application for Review).

[^12]: *See* *Zemansky v. EPA*, 767 F.2d 569, 571-73 (9th Cir. 1985)
    (observing that reasonableness of agency search depends upon facts
    of each case (citing *Weisberg v. United States Dep\'t of Justice*,
    705 F.2d 1344, 1351 (D.C. Cir. 1983) (*Weisberg*)).

[^13]: *Weisberg*, 705 F.2d at 1351; *see, e.g., Campbell v. United
    States Dep\'t of Justice*, 164 F.3d 20, 27 (D.C. Cir. 1998) (noting
    that an agency must search \"\'using methods which can be reasonably
    expected to produce the information requested\" (quoting *Oglesby v.
    United States Dep\'t of the Army*, 920 F.2d 57, 68 (D.C. Cir.
    1990)).

[^14]: *See, e.g.,* *Meeropol v. Meese*, 790 F.2d 942, 956 (D.C. Cir.
    1986) (*Meeropol*) (\"\[A\] search need not be perfect, only
    adequate, and adequacy is measured by the reasonableness of the
    effort in light of the specific request.\").

[^15]: *See* 5 U.S.C. § 552(a)(3)(A) (2000) (statutory provision
    requiring that a FOIA request \"reasonably describe\[\]\" the
    records sought).

[^16]: *See* *FCC Announces Disposition of Certain Mail*, *Public
    Notice* (Mar. 8, 2002) (http://ftp.fcc.gov/
    Bureaus/Miscellaneous/Public_Notices/2002/pnmc0201.html); *Fact
    Sheet*, http://ftp.fcc.gov/Bureaus/OMD/
    Factsheets/030802anthrax.pdf; and *FCC Announces a New Filing
    Location for Paper Documents*, *Public Notice*, DA 01-2919 (Dec. 14,
    2001)
    (http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-01-2919A1.doc).

[^17]: *See* n.7, *supra*.

[^18]: *See* *Duenas Iturralde v. Comptroller of the Currency*, 315 F.3d
    311, 315 (D.C. Cir. 2003) (\"\[I\]t is long settled that the failure
    of an agency to turn up one specific document in its search does not
    alone render a search inadequate . . . . After all, particular
    documents may have been accidentally lost or destroyed, or a
    reasonable and thorough search may have missed them.\"); *Grand
    Cent. P\'ship. Inc. v. Cuomo*, 166 F.3d 473, 489 (2d Cir. 1999)
    (declaring that the fact that \"some documents were not discovered
    until a second, more exhaustive, search was conducted does not
    warrant overturning the district court\'s ruling\" that the agency
    conducted a reasonable search); *Meeropol*, 790 F.2d at 953
    (rejecting argument that later produced records rendered initial
    search unreasonable and recognizing that subsequent searches
    constituted evidence of agency's cooperation and good faith).

[^19]: As previously noted, one copy of the letter in FOIA 2004-553 was
    located and provided to Mr. Wrobel. Because it is in the nature of
    an informal complaint, it has been forwarded to CGB for handling on
    the merits. In addition, Mr. Wrobel provided a copy of his May 14,
    2004 correspondence to Commissioners Copps, Martin and Adelstein. A
    copy of this correspondence has also been forwarded to CGB for
    appropriate handling.