NOTICE ********************************************************* NOTICE ********************************************************* This document was originally prepared in Word Perfect. If the original document contained-- * Footnotes * Boldface & Italics --this information is missing in this version The document format (spacing, margins, tabs, etc.) is changed too. If you need the complete document, download the Word Perfect version. For information about downloading documents (FTP) see file how2ftp. File how2ftp (.txt & .wp) is in directory /pub/Bureaus/Miscellaneous/Public_Notices/ ***************************************************************** ******** [FOR RECORD ONLY] $// MO&O, Rainbow/Press, FOIA No. 96-68, FCC 96-134 //$ $/ 400.05552 Public Information; agency rules, opinions, order /$ $/ 1.311 General /$ Before the FEDERAL COMMUNICATIONS COMMISSION FCC 96-134 Washington, D.C. 20554 In the Matter of ) ) Bruce A. Eisen and ) FOIA Control No. 96-68 Allan G. Moskowitz, ) Rainbow Broadcasting Company ) ) Margot Polivy, ) Rainbow Broadcasting Limited ) ) Harry F. Cole, ) Press Broadcasting Company, ) Inc. ) ) ) On Request for Inspection of Records ) Memorandum Opinion and Order Adopted: March 26, 1996; Released: March 28, 1996 By the Commission: 1. The Commission has under its consideration a Freedom of Information Act (FOIA) request, 5 U.S.C.  552, jointly submitted on behalf of Rainbow Broadcasting Company, Rainbow Broadcasting Limited, and Press Broadcasting Company Inc. (hereinafter referred to as "requesters"). Specifically, the requesters seek access to Commission records relating to the Rainbow Broadcasting proceedings that were generated between January 25, 1991 and November 22, 1993, as well as certain additional material. 2. We have reviewed the Commission records responsive to the request and have determined that most of the material within the scope of the request should be made available. Much of this material is already publicly available, including copies of pleadings concerning the Rainbow Broadcast proceedings, material contained in the Mass Media Bureau's station files, copies of Commission decisions that have been released, as well as material that was released by the Office of the Inspector General pursuant to an earlier FOIA request from Harry F. Cole, Esquire, FCC FOIA Control No. 94-28, released February 18, 1994. 3. Several documents are being withheld because they consist of predecisional and deliberative material which is shielded from disclosure under FOIA Exemption 5, 5 U.S.C.  552(b)(5). See Appendix for list of withheld items. Material which is being withheld in accordance with Exemption 5 consists of predecisional drafts, attorney comments on drafts and similar predecisional deliberative material concerning the Commission's decisions in Rainbow Broadcasting Company, 9 FCC Rcd. 2839 (1994) and William J. Kitchen, 7 FCC Rcd. 4169 (1992). 4. Exemption 5 protects from mandatory disclosure "inter-agency or intra-agency memoranda or letters which would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C.  552(b)(5). The deliberative process privilege contained in Exemption 5 is intended to encourage frank discussion within the government; to prevent public confusion which could result from the disclosure of internal debate prior to the formation of agency policies; and to guarantee that the government will be judged on positions actually adopted rather than on factors considered in reaching such positions. Jordan v. Department of Justice, 591 F.2d 753, 772-73 (D.C. Cir. 1978)(en banc). These policy concerns are directly applicable to the predecisional Commission records being withheld since disclosure would not only inhibit or stifle free and open exchanges but would also impermissibly intrude upon the integrity of the Commission's decision-making process. 5. In addition, we are also withholding records prepared by the Office of the Inspector General and other material submitted to the Inspector General that would reveal a confidential source. This material is being withheld pursuant to FOIA Exemption 7(D), 5 U.S.C.  552(b)(7)(D), which permits the withholding of records that could reasonably be expected to disclose the identity of a confidential source. The material is also protected by FOIA Exemption 7(C), which permits the withholding of law enforcement information when its disclosure would constitute an unwarranted invasion of personal privacy. 5 U.S.C.  552(b)(7)(C). 6. You have requested a waiver of the cost of processing your FOIA request, including search and duplication fees. 5 U.S.C.  552(a)(4)(iii). According to your request letter, the instant FOIA request is necessitated by the Commission's Order designating for hearing five specified issues against Rainbow Broadcasting Company, specifically the issue of whether Rainbow Broadcasting Company intentionally violated the Commission's ex parte rules by soliciting a third party to call the Commission on their behalf and by meeting with Commission staff to discuss the merits of their application proceedings. See Memorandum Opinion and Hearing Designation Order, FCC 95-468 (November 22, 1995). You emphasize that "substantially all evidentiary material relevant to, and shedding light on, the violation of the ex parte rules issue is in the possession and under the control of the FCC." Request Letter at 6. 7. Section 1.311(b)(3) of the Commission's rules, 47 C.F.R.  1.311(b)(3), states that "Commission records are not subject to discovery under 1.325," and that "the inspection of Commission records is governed solely by the Freedom of Information Act . . . ." Since the Commission's rules do not allow you to obtain these records through discovery, we will, under these circumstances, grant a waiver of the reasonable costs for processing this request. 8. Accordingly, for the reasons set forth above, IT IS ORDERED, That the Freedom of Information Act Request filed by the above-captioned Requesters IS GRANTED to the extent indicated herein and IS OTHERWISE DENIED. The Requesters may seek judicial review of this decision pursuant to 5 U.S.C.  552(a)(4)(B). 9. To arrange for inspection of the material, please contact Sharon Kelley, Office of General Counsel, at (202) 418-1720. 10. The officials responsible for this decision are the following Commissioners: Reed E. Hundt, Chairman, James H. Quello, Andrew C. Barrett, Rachelle B. Chong, Susan Ness. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary Appendix APPENDIX MATERIAL EXEMPT FROM DISCLOSURE 1. Cover memorandum to Commission and predecisional draft copies of the Memorandum Opinion and Order, Rainbow Broadcasting Company. 9 FCC Rcd. 2839 (1994). 2. Cover memorandum to the Commission and predecisional draft copies of the Memorandum Opinion and Order. William J. Kitchen, 7 FCC Rcd. 4169 (1992). 3. Handwritten Notes of Robert Andary, Office of the Inspector General, made during conversations with a confidential source and material from a confidential source submitted to the Office of the Inspector General.