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
BY THE COMMISSION: COMMISSIONER JOHNSON CONCURRING AND ISSUING A STATEMENT; COMMISSIONER WELLS ABSENT.
[*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.
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.