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File pnmc5021 (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ***************************************************************** ******** [FOR RECORD ONLY] $// MO&O, Fox Television, FOIA 95-194, FCC 95-216 //$ $/ 400.05552 Public Information; agency rules, opinions, /$ Before the FEDERAL COMMUNICATIONS COMMISSION FCC 95-216 Washington, D.C. 20554 In re Application of ) ) FOX TELEVISION STATIONS, ) File No. BRCT-940201KZ INC. ) ) For Renewal of License of ) FOIA Control No. 95-194 Station WNYW-TV, ) New York, New York ) MEMORANDUM OPINION AND ORDER Adopted: June 5, 1995; Released: June 6, 1995 By the Commission: 1. The Commission has under its consideration three requests filed by the Metropolitan Conference of NAACP Branches, Hilda Rogers, Amnews, Inc., Wilbert A. Tatum, New Jersey State Conference of Branches of the NAACP, Thomas Smith, and Lynn Johnson ("Metro Council"). Metro Council requests (1) the release under the Freedom of Information Act ("FOIA"), 5 U.S.C.  552, et seq., of records circulated to the Commission concerning the application by Fox Television Stations, Inc. ("FTS") to renew its license for Station WNYW-TV, New York, New York; (2) the release of these documents to permit judicial review on "the whole record" under the Administrative Procedure Act ("Due Process Request"); and (3) extensions of time for filing a petition for reconsideration of our decision in Fox Television Stations, Inc., No. FCC 95-188 (released May 4, 1995) ("Fox Television") and for filing comments on FTS's request for a waiver of 47 U.S.C.  310(b)(4), pending grant of its document disclosure requests. FTS opposes Metro Council's request for extensions of time. For the reasons discussed herein, we deny Metro Council's requests. FOIA Request 2. In its FOIA Request, Metro Council seeks public disclosure of "all records prepared by the Mass Media Bureau and the Office of the General Counsel concerning the [Commission's decision in Fox Television] which were circulated to the commissioners or their offices." The FOIA Request also states (at p.1) that these materials "presumably consist of an Agenda Item Memorandum as well as other memoranda," and explains further (at p.2) that Metro Council seeks "only those documents reaching the Eighth Floor which contained factual evidence not presently in the record." 3. No documents that were circulated to the Commission regarding disposition of the Fox license renewal proceeding contained evidence not in the public record of the proceeding. All of the evidence submitted and considered in the Commission's decision was placed in the public record prior to the submission of comments on February 27, 1995. Therefore, to the extent that Metro Council seeks documents containing extra record evidence, no such documents exist. However, to the extent that Metro Council's FOIA Request also seeks access to any recommendations circulated to the Commission regarding the disposition of the Fox renewal application, one document exists that is within the scope of the request. That document, an 83 page draft decision, accompanied by a 13 page cover memorandum describing the staff's recommended decision, is exempt from mandatory disclosure under FOIA Exemption 5, 5 U.S.C.  552(b)(5). 4. Exemption 5 exempts from disclosure intra-agency memoranda, draft decisions, and work papers to protect the integrity of the deliberative process. See, e.g., NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975). The document in question, which consists of the staff's recommended disposition of the renewal application and the Petition to Deny the application, fits squarely within the deliberative process privilege of Exemption 5, and therefore need not be disclosed pursuant to the Freedom of Information Act. Public Interest Considerations 5. Metro Council also requests that, if the Commission determines that the records it seeks need not be disclosed under the FOIA, the Commission should nevertheless exercise its discretion to disclose them. In its companion Due Process Request, Metro Council advances a number of arguments in support of its request for discretionary disclosure. We have reviewed these arguments and find no basis to disclose the staff's recommendation as a matter of our discretion. 6. Metro Council first argues that withholding the staff recommendation would violate the Administrative Procedure Act's requirement that judicial review be available "on the whole record," citing Independent U.S. Tanker Owners Committee v. Lewis, 690 F.2d 908, 922 (D.C. Cir. 1982) ("Tanker Owners") and U.S. Lines, Inc. v. FMC, 584 F.2d 519 (D.C. Cir. 1978) ("U.S. Lines"). These cases are inapposite, however. Tanker Owners involved circumstances in which the agency failed to provide an explanation for its decision, and expressly adopted the staff's recommendation as the basis for its decision. The Commission's decision in Fox Television, in contrast, was fully explained and contained a detailed and extensive analysis of the underlying evidentiary record. Thus, the Commission's own decision provides the full basis for its decision in the matter. Moreover, in contrast to U.S. Lines, all of the evidence relied upon by the Commission in Fox Television is in the public record of the proceeding and was fully available to the commenters in the proceeding. The entire record in Fox Television will also be available to a court if judicial review is sought. There is thus no concern in this case that judicial review will not be based upon the entire record. 7. Metro Council also claims (Due Process Request, at 6-7) that disclosure would serve the public interest because, it alleges, the Commission "is under incredible political pressure in this case," and, hence, "there is an enormous public interest in full disclosure of exactly what it was that the commissioners rejected." As indicated above, however, the Commission based its decision in this case exclusively on matters that are in the public record, consistent with its duty to ensure fairness to the participants and with the proper exercise of its quasi- adjudicatory responsibilities. We have no doubt, moreover, that many cases exist in which some members of the public have an "enormous interest" in what the staff recommended to the Commission and what the Commission may or may not have rejected. Central to the purposes of the deliberative process privilege incorporated in Exemption 5, however, are protection of the Commission's deliberations in order to preserve openness in discussions between subordinates and superiors, and protection against public confusion that might result from disclosure of reasons and rationales that were not in fact grounds for the agency's action. See, e.g., Russell v. Department of the Air Force, 682 F.2d 1045, 1048 (D.C. Cir. 1982). Disclosure of the document in question would directly implicate these policy considerations underlying Exemption 5, and we perceive no countervailing public interest benefit in this case that would be achieved by its disclosure. Requests for Extensions of Time 8. Metro Council has also requested that, until the Commission grants its document requests, the Commission should extend the time for seeking reconsideration of Fox Television (June 5, 1995), as well as extend the June 12, 1995, deadline for public comments on the May 11, 1995, request by FTS for a waiver of 47 U.S.C.  310(b)(4). In the alternative, Metro Council requests "appropriate stays" of the proceedings. Metro Council maintains that without the opportunity to review the evidence relied upon by the Commission, it is "impossible" for Metro Council to make an informed selection of the issues on which to seek reconsideration, and that without access to "key evidence" related to FTS's candor, it cannot comment on the waiver request, which is based on "the presumption that [FTS] can be trusted to continue its purported public service in the future . . . ." 9. In view of our decision herein to deny Metro Council's information requests, Metro Council's request for an extension of time pending grant of those requests is denied. Moreover, we note that the 30 day time period for filing petitions for reconsideration is a statutory time limitation. 47 U.S.C.  405(a); 47 C.F.R. 1.106(f); Reuters Ltd. v. FCC, 781 F.2d 946, 951-52 (D.C. Cir. 1986). Finally, as discussed above, Metro Council has already had the benefit of access to all of the evidence compiled in this proceeding that was relied upon by the Commission, and the document that it seeks does not contain any extra-record evidence. Metro Council, whose counsel also attended the depositions of all the witnesses in this case, thus has not been denied access to any evidence, and no impediment exists to its full and fair participation in subsequent stages of this proceeding. Ordering Clauses 10. Accordingly, IT IS ORDERED that Metro Council's request for release of the Agenda Item Memorandum and draft decision circulated to the Commission concerning the application by FTS to renew its license for WNYW-TV, filed May 24, 1995, IS DENIED. Judicial review of this action may be sought pursuant to 5 U.S.C.  552(a)(4)(B). 11. IT IS FURTHER ORDERED that Metro Council's Due Process Request, filed May 24, 1995, is DENIED. 12. IT IS FURTHER ORDERED that Metro Council's Contingent Motion for Extension of Time or Stays, filed May 24, 1995, IS DENIED. 13. The Officials responsible for this action are the following Commissioners: Reed E. Hundt, Chairman, James H. Quello, Andrew C. Barrett, Rachelle B. Chong, and Susan Ness. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary