Denial of FOIA on Net Neutrality Comments Spawns 'Unusual' Commissioner Clash

Chairman Ajit Pai and Commissioner Jessica Rosenworcel clashed over the FCC denying media outlets Freedom of Information Act requests for data about who was commenting in last year's net neutrality proceeding. "What is the Federal Communications Commission hiding?" Rosenworcel asked in a statement Monday accompanying the order. Pai called Rosenworcel's critique "partisan gamesmanship."

Such a disagreement is "pretty unusual," said FOIA lawyer Kevin Goldberg of Fletcher Heald. Most FOIA requests, while of high value to the public, "tend to be very in-the-weeds and wonky," and don't give rise to public intra-agency clashes, he said. The dispute probably reflects the heated nature of the net neutrality rollback, he said.

The New York Times' Nicholas Confessore and BuzzFeed News' Jeremy Singer-Vine submitted FOIA requests seeking server logs and IP addresses for blocks of comments submitted in the docket. The agency denied Confessore's request, citing two FOIA exemptions and calling the request "a clearly unwarranted invasion of personal privacy" seeking nonpublic information. Commissioners said the disclosure would give detailed information about FCC's relationship with commercial cloud servers and the agency's electronic comment filing system infrastructure, and would open the door to future compromises of its system like it experienced in May 2017. Denying Singer-Vine's request, the agency also said disclosure would release information about how the FCC protects ECFS' security. Confessore and Singer-Vine appealed.

Monday's order upholding those denials said a balance of interests weighs in favor of withholding the addresses given the privacy interests of individuals. It said since other media outlets, FCC staff and GAO have looked at the integrity of the agency's comment process, it has no reason to believe Confessore's review of the data "would significantly advance any public interest beyond the investigations that are already underway."

Andrew Schwartzman, a senior counselor at Georgetown University Law Center’s Institute for Public Representation, emailed that under FOIA, even when an agency has a legal basis for withholding a document, it has discretion to release it. "This is a case that screams for exercise of that discretion," he said. "The public is entitled to know what happened and why." Goldberg said the agency should want to give such information out and engage in discretionary disclosure, but noted the FCC is "probably in the right overall," especially with the support that comes from traditional judicial deference.

The Times, with a federal suit pending in U.S. District Court in Manhattan in docket 18-cv-08607-LGS on the FOIA request (see here, in Pacer), looks "forward to challenging in court the FCC’s refusal to provide this information, which the public is entitled to have," a spokesperson said. "We will continue to pursue the facts in court," Confessore tweeted. He tweeted that the FCC "has let its regulatory dockets be overrun with automated and fraudulent comments ... [but] insists that the security of commenting would be endangered by allowing us to see how this fraud was perpetrated." A BuzzFeed spokesperson emailed that as Rosenworcel pointed out, "this decision shields the FCC with outdated exemptions and obstructs the very investigative journalism that is critical to exposing fraud in the public record. We believe the bar needs to be raised in what justifies an agency's withholding key information from the public."

Rep. Jerry McNerney, D-Calif., tweeted that the FCC's "lack of transparency here is incredibly troubling. It’s been nearly a year-and-a-half since I requested the agency provide server logs related to the alleged DDoS attacks on the #netneutrality docket, and I’m still waiting."

Rosenworcel said that with the legions of seemingly fraudulent comments, including close to half a million filed from Russian email addresses, "It's time for the FCC to come clean." She said the agency makes "an overbroad claim" about ECFS security and seemingly "is trying to prevent anyone from looking too closely at the mess it made of net neutrality."

Pai said Rosenworcel was conspicuously silent under a Democrat-run FCC when he would advocate for more transparency such as publishing meeting items before a vote. He said the commission, in denying the FOIAs, relied "on clear judicial precedent," including a September decision by "Obama appointee" U.S. District Judge Christopher Cooper of Washington about the same server logs.

Cooper granted an FCC motion for summary judgment on withholding some privileged emails and server logs but granted the plaintiff's summary judgment motion on the email addresses used to submit comma-separated value files, in the docket 17-cv-01835-CRC decision (in Pacer). Freelance journalist Jason Prechtel sued the agency over its handling of FOIA requests filed with the FCC and the General Services Administration about details about use of electronic comment submission tools.