In the Matter of REQUEST BY REUBEN
B. ROBERTSON, III AND RONALD L. WINKLER For Inspection of Records
FEDERAL COMMUNICATIONS COMMISSION
25 F.C.C.2d 942
RELEASE-NUMBER: FCC 70-1063
October
9, 1970 Released
Adopted
September 30, 1970
JUDGES:
BY THE
COMMISSION: COMMISSIONER JOHNSON CONCURRING AND
ISSUING A STATEMENT; COMMISSIONER WELLS ABSENT.
OPINION:
[*942]
1. The Commission has before it
for consideration an application for review, filed by Reuben B. Robertson, III
and Ronald L. Winkler on August 17, 1970.
The application is directed against a ruling of August 3, 1970, issued
under 47 CFR § 0.461 by the Commission's
Executive Director, denying an inspection request of July 15, 1970, submitted
by Mr. Winkler. The document involved
in the inspection request and the application for review is an intra-agency
memorandum, from the Commission's Office of General Counsel to the Commission
concerning the impact of the Supreme Court's opinion in Red Lion Broadcasting
Co., Inc. v. Federal Communications Commission, 395 U.S. 367 (1969).
2. The basis for both the request for
inspection and the application for review is that, in an article appearing in a
September 1969 issue of a trade magazine, the memorandum was quoted to a degree
suggesting that the magazine had gained access to the full text. On these facts, the Executive Director's
denial of the inspection request is unassailable, and the Commission is in
complete accord with his holding that "this circumstance is not sufficient
to alter the confidential nature of the memorandum." Both 5 U.S.C. § 552(b)(5) and 47 CFR § 0.457 (e) recognize the normally-privileged
nature of intra-agency memoranda; and, apart from those provisions, the
lawyer-to-client nature of the memorandum involved imparts to it a privilege
against disclosure needing no statutory or regulatory affirmation. Equally clear is that the mere fact that a
news medium has somehow gained access to privileged material is an inadequate
basis for setting the privilege aside and declaring the material available for
public inspection. News stories often
reflect "leaks" of confidential material, and the official bodies are
undoubtedly few which are not confronted with this problem from time to
time. Such leaks "tend to restrain
the commitment of ideas to writing [and] tend to inhibit communication among
Government personnel" [see 47 CFR §
0.457(e)]; and the degree of restraint and inhibition would very
probably multiply if the fact of a leak became the [*943] criterion for
determining the continued confidentiality of intra-agency memoranda.
3. From a review of the article in the trade
magazine quoting the memorandum in question, it seems clear that the magazine
did in fact have access to the full text of the memorandum in preparing the
article. More importantly, the
Commission reliably believes that there has been widespread circulation of
copies of the memorandum within the broadcasting industry. For this reason, and because the nature of
the particular memorandum is not such that its release here will substantially
impair proper agency operations, the Commission has determined to depart from
its established procedure and make the memorandum publicly available. We stress that this action is limited to the
special facts before us (i.e., the combined force of all of the above
considerations), and that the action should not be construed as in any way an
indication that the Commission will in the future make confidential material
available for inspection on a mere showing that the material has in some
unauthorized manner been "leaked."
4. Finally, it cannot be emphasized too
strongly that leaks of the type which have apparently occurred here do severely
hamper the proper functions of the Commission.
We cannot be too strong in our condemnation of this insidious
practice. A Commission rule, 47 CFR
§ 19.735-206, specifically prohibits
Commission employees from disclosing to outside persons documents or
information not routinely available to the public. We fully intend to take such remedial action as may be necessary
to prevent further abuses of this type.
5. Accordingly, IT IS ORDERED, That the
application for review, filed on August 17, 1970, by Reuben B. Robertson, III
and Ronald L. Winkler, IS GRANTED to the extent indicated above. The Commission will make available copies of
the memorandum for distribution to the public.
FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE,
Secretary.
CONCUR:
CONCURRING
OPINION OF COMMISSIONER NICHOLAS JOHNSON
Although the
Commission supports the Executive Director's denial of petitioners' request for
inspection of the Geller memorandum as "unassailable," it
nevertheless reverses his action. A few
words of comment are in order.
On September 8,
1969, Television Digest published an article recounting the contents of an
internal FCC memorandum by General Counsel Henry Geller describing the impact
and importance of the Supreme Court's Red Lion decision. On September 15, 1969, Broadcasting magazine
published a similar account of Mr. Geller's memorandum. The specificity of both articles made it
obvious that Television Digest and Broadcasting had obtained copies of that
memorandum.
On July 9, 1970,
petitioners requested disclosure of this memorandum; this request was denied by
the Commission's Executive Director on August 3, 1970. The Executive Director acknowledged that the
memorandum had appeared in the trade press, but stated [*944]
that this "circumstance was not sufficient to alter the
confidential nature of the memorandum." The Commission now affirms the
validity of his position, but reverses the Executive Director on two other
grounds: the widespread circulation of copies of the memorandum within the
broadcasting industry; and the belief that release of the memorandum will not
impair proper agency operations. I
concur in the release of the Geller memorandum, but disagree with the reasoning
advanced by the majority to support its action.
The Commission
justifies its release of the Geller memorandum on three grounds: (1) trade
magazines had access to the complete text of the memorandum; (2) the memorandum
has been circulated widely within the broadcasting industry; and (3) the
release of the memorandum will not substantially impair proper agency
operations. It warns, however, that the
Commission will not in the future make confidential information available
merely because it has been "leaked" -- presumably to the press.
The point
largely disregarded by the majority is that the Geller memorandum was leaked to
the trade press, and thus found its way into the broadcasting establishment,
through Commission negligence, inadvertence, or direct connivance. As a result, certain members of the broadcasting
establishment acquired insights into internal agency thinking that were denied
to members of the general public. The
tactical and substantive unfairness to members of the public is obvious. Once leaks have occurred, therefore, the
real question facing the Commission is whether it will correct the unfairness
it has caused. When the Commission
refuses to do so, for whatever reason, it adopts a stance of bias in favor of
the industry it serves, and weights the scales of procedural fairness even more
heavily against the public.
Once the Commission,
through its own negligence, has leaked information or documents to the
broadcasting industry, I believe it must correct the injury it has caused by
making the materials generally available to members of the public as well.
One possible
exception may exist. When a publication
of general circulation, such as the Washington Post or the New York Times,
obtains and publishes portions of "leaked" Commission documents, then
all parties -- industry and public alike -- are left in equal positions. Each knows what he has read and no
more. We may assume, I think, that such
newspapers as the Post and the Times are not beholden to vested industry
interests, and that their reporters do not circulate documents to their friends
in the industry. One cannot say as much
for the trade press. The cozy links
between Television Digest and Broadcasting magazine, the NAB, the three
networks, and the large multiple owners are well-known if not notorious. By feeding "inside" information to
the industry, Television Digest and Broadcasting establish their powerful
positions as reliable sources of industry gossip and news.
I think we may
properly assume, therefore, that if an item appears in an industry trade
publication, it will find its way into industry hands with a speed approaching
that of light. When that happens, our
primary duty to the public is to repair the damage we have caused. The parties before the Commission can only
be placed on equal footing [*945] if the item is made available to all. I would apply this doctrine to all items
appearing in the trade press, but would apply it to items appearing in the
general press only upon evidence that the items had found their way into
industry hands.
One final
point. The majority states that release
of the Geller memorandum will not substantially impair proper agency
operations, yet it does not say why. It
is not clear to me why this is so only in this instance. It is not easy to envision an instance of a
release substantially impairing agency operations. And even in cases where some harm is possible, that harm would no
doubt be outweighed by the procedural unfairness to members of the public. It is possible, however, that the majority
feels willing to release Mr. Geller's memorandum because it does not intend to
follow its recommendations, much less exercise the authority the Supreme Court
has given us in its Red Lion decision.
Certainly we have done very little, for example, to establish the
general program standards the Supreme Court has sanctioned. I hope that the majority, in releasing the
General Counsel's memorandum, does not feel it is merely ejecting a bit of
troublesome flotsam, a memorandum soon to be forgotten. The Commission's inaction since the Red Lion
decision, however, may well justify this fear.