Failure to Communicate

FCC handling of information requests show pattern of stonewalling, bias, records show

June 18, 2012

The Federal Communications Commission has shown under the Obama administration a pattern of opacity and bias in handling public records requests despite its claims that it is "committed to increasing openness and transparency."

The FCC has been forthcoming with information to Democratic opposition researchers and liberal watchdog groups, but regularly stonewalls requests from members of Congress and outside groups seeking potentially embarrassing information for the Obama administration, records show.

"We’ve done thousands of FOIA requests over the years," said Ken Boehm, cofounder of the National Legal and Policy Center. "There’re agencies even now where you can get a fairly quick, reasonable response, but the FCC is without a question in my experience the worst of the worst when it comes to transparency issues. It’s been shown over and over again."

Over the past several years the FCC has seen an unprecedented growth in the number of FOIA requests denied because the records sought were "not reasonably described."

Under Chairman Julius Genachowski—who was the technology chairman on Barack Obama’s 2008 presidential campaign—the FCC has denied 246 FOIA requests on such grounds.

That is more than the FCC denied for the same reason in the entire decade prior to Genachowksi’s tenure.

The 2010 federal government average for denials of requests because records were not reasonably described was 1 percent, according to a Justice Department report. The FCC denied around 16 percent of FOIA requests for this reason in 2010.

The Electronic Privacy Information Center (EPIC), a non-profit government watchdog, has also encountered problems with the FCC and other agencies using the not reasonably describe explanation to deny requests.

Ginger McCall, the director of EPIC’s open government program, said the organization has "certainly seen an increase over the past few years" in government agencies denying FOIA requests because the records weren’t "reasonably described."

EPIC is currently trying to pry information from the FCC about Google Street View, but the agency has either withheld documents or heavily redacted them.

"We’ve already challenged the agency internally and we may in fact take them to court,’ McCall said.

However, it appears some groups have it easier than others having FOIA requests approved.

For example, the FCC has been generous to the Democratic Congressional Campaign Committee (DCCC).

The DCCC employs 25 opposition research staff, the most of the four congressional campaign committees. Each election cycle, staffers put in reams of FOIA requests, which are known as "FOIA bombs," in their search for dirt on Republican candidates.

Four DCCC staffers filed a wave of FOIA requests with the FCC in June 2009, seeking "any" correspondence between the agency and 54 House Republicans—in some cases going as far back as 1971.

With one exception, the FCC responded to the DCCC’s requests with a "total grant." The exception was the FCC’s June 18, 2009, response that it had "no records" concerning Joseph Cao (R., La.).

The National Legal and Policy Center’s Boehm, who is familiar with some of the DCCC’s records requests, said they are not held to the same standard as others.

"Some of their FOIA letters look like third graders wrote them," he said.

The FCC also obliged Citizens for Responsibility and Ethics in Washington (CREW)—a left-leaning non-profit watchdog organization funded in part by left-wing billionaire George Soros—when it requested records on Rupert Murdoch and News Corporation between 2006 and 2011.

CREW’s request sought "any and all records … of any kind … regardless of format, medium, or physical characteristics" within that four and a half year timespan "referencing or pertaining to News Corp and/or Rupert Murdoch."

The FCC’s response totaled 176 pages of email communications between outside parties and Commission personnel, as well as 57 pages of congressional correspondence.

However, the FCC has stonewalled senior members of Congress. When Sen. Chuck Grassley (R., Iowa) requested documents pertaining to LightSquared—the company of a prominent Democratic donor that hired dozens of lobbyists to gain approval from the FCC for a flawed plan to build a nationwide 4G wireless network—the agency steadfastly refused.

"The FCC has played games for a year on LightSquared documents," Grassley said in an April statement to the Daily Caller. "In fact, I know even FOIA requesters who have been waiting for almost a year for LightSquared documents. Even when the agency started producing documents recently for the House Energy and Commerce Committee, those documents already had been public for months, with the exception of a few newly unredacted items that are hard to identify. This is not transparency. It's important to remember that the FCC's accelerated treatment of LightSquared in the first place is what attracted scrutiny. The FCC's resistance to answering basic questions about its decision-making is unacceptable for a public agency."

Sen. Grassley’s office said that, although the FCC eventually provided the documents to the House Energy and Commerce Committee—which in turn gave them to Grassley—the senator continues to be concerned about FOIA problems at the FCC.

The FCC’s FOIA problems are only part of a larger trend in the Obama administration, however.

"Obama is the sixth administration that’s been in office since I’ve been doing Freedom of Information Act work. … It’s kind of shocking to me to say this, but of the six, this administration is the worst on FOIA issues. The worst. There’s just no question about it," Katherine Meyer, a Washington lawyer who’s been filing FOIA cases since 1978, told Politico. "This administration is raising one barrier after another. … It’s gotten to the point where I’m stunned—I’m really stunned."

The FCC did not return a request for comment.