Today I had a long conversation with two agency attorneys, who report that because my request was so broad (any correspondence related to the WLS case) there may well be more than 1,000 pages of documents involved. The majority of these are apparently e-mails between FCC staff.
In essence, the FCC attorneys were trying to convince me to narrow the scope of my FOIA request to save them work. This is a common tactic many state and federal agencies use to stymie such inquiries. Their rationales went something like this:
"This is a very old case, there’s a ton of stuff here, so it will take us much longer to fulfill your request." Sorry to hear that, but I want everything you have on this case.
"You may not even get the information you seek, because certain types of e-mail correspondence is exempt from FOIA." That’s fine, and sorry to make you redact the hell out of things, but even that information may be useful to me.
"Perhaps you could revise your FOIA request only to ask for correspondence relating to that aspect of the decision where Workers Independent News has been impugned." I’d love to do that, but the FCC’s journalistic determination about WIN pervades the decision in many respects, so it’s not possible for me to narrow my ask down to specific mentions in the Forfeiture Order against WLS ….especially since we don’t know yet (and neither do they) if any such discussions about WIN’s journalistic legitimacy even took place.
"This is going to cost you." As an academic who is also a member of the news media, I get the first 100 pages for free, and then it’s 10 cents per page after that. If that’s 1,000 pages, then I pay for 900; I can certainly afford $90 (or even more, if necessary).
"You know, you’re not the only FOIA request we have. This one could take us hundreds of hours of time to work on." I totally understand that, but it’s also not my fault that someone in the Enforcement Bureau (they do not believe an administrative law judge was involved in the decision) went so far off the reservation that it forced my hand. You made this bed, you lie in it.
Interesting sidenote: during the conversation, the FCC attorneys first claimed that they had not read the Forfeiture Order in the WLS case. Not 10 minutes later, they claimed to have read both the decision and "your Congressional thing." I feigned ignorance: "Congressional thing?" There was dead silence for a beat, and then they came back and said basically, "Whoops, our bad, different case." I don’t believe that, which suggests that someone in Congress has reached out to the agency on this issue, and that also counts for something.
All the FCC has to do is rewrite its WLS forfeiture to remove the news value judgments the agency makes about Workers Independent News, and apologize to WIN for straying into making unconstitutional territory, and this would all go away. Obviously this is not something the FCC is prepared to consider at this point. No estimate yet on exactly how long it will take for the agency to comply with my FOIA request, either.