Sad but true: last Friday, the FCC finally responded to my appeal of its denial of my Freedom of Information Act request involving a case in which the agency declared Workers Independent News to not be news.
The dismissal was fairly perfunctory. What I was primarily asking for was the other 5,600+ pages of documentation the agency collected regarding correspondence (both internal and external) and deliberations on the WLS/WIN case (it only released 88 heavily-redacted pages). My primary objective was to discover the identity of the complainant who kicked off this sordid saga, as well as the identities of FCC staff who took the complaint and turned it into libel by official writ. Never before in the history of U.S. broadcast regulation has the FCC made a content determination on the legitimacy of a news organization.
The Office of General Counsel focused on the potential threat of a lawsuit in this case and made that the core of its dismissal. Interestingly, it also claimed a new FOIA exemption to preclude releasing the names of those who were involved in this chicanery. Now, the FCC claims that the identities of the complainant who slandered WIN back in 2009, and the internal discussions the FCC had about the case over five years, are “law enforcement records.” Thus, they are covered by a “substantial privacy interest [protecting] their name, address, phone number, and email address.” It should be noted that a colleague and I attempted to get these records earlier this year from a copy of WLS’ public file held at FCC HQ, but the documents were mysteriously not available.
Furthermore, the FCC rejected the notion that releasing further information about its deliberation on the WLS/WIN case would help all parties understand how its policy processes work. In doing so, the agency practically invited me or WIN to sue it: “In civil discovery, however, application of the deliberative process privilege may be overcome by a showing of relevance or need by an opposing party, while under FOIA, a showing of relevance or need for the requested information has no bearing on the applicability of the privilege.”
Unfortunately, there’s no solidarity to be found here. Not among journalists, who’ve turned a blind eye to this unconventional assault on access to the airwaves and the willful complicity of FCC staff that allowed it to happen. Certainly not from the labor movement, whose interests WIN supposedly represents, but who’ve never subsantially provided support over 15 years at a level where the organization could rightfully thrive. The only solidarity is among the Commissioners themselves, as all five of them voted unanimously to deny this FOIA appeal.
The obvious next step is to head to court on this, but considering the circumstances outlined above, that’s unfortunately unlikely. I’ll hold out hope, but not my breath. The full (albeit short) smackdown is embedded below.FCC Denial of FOIA Appeal, 10/27/16