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The FCC Is Refusing to Release Emails About Ajit Pai's 'Harlem Shake' Video

Citing the infamous b5 exemption, the Federal Communications Commission refused to release emails related to the planning of the net neutrality video.
Image: Screengrab YouTube

It seems even the Federal Communications Commission doesn’t want you to know exactly who thought this video was a good idea:

A joint production with online publication The Daily Caller, the above video was released in December just one day before the FCC voted to repeal net neutrality. That’s right. On the eve of the net neutrality repeal, just as tensions and public debate over the issue were reaching a fever pitch, someone in the FCC decided it would be a good idea to have chair Ajit Pai ridicule legitimate concerns of internet users with a video featuring an outdated meme and a pizzagate conspiracy theorist.


JPat Brown, executive editor of public records platform MuckRock, wanted to know just what exactly they were thinking, so he filed a Freedom of Information Act request for the emails planning the project (disclosure: Motherboard files FOI requests using MuckRock's platform). In response, the FCC said it identified two pages of emails, but refused to release them because it would “foreseeably harm the staff’s ability to execute its functions by freely discussing relevant matters.”

The agency invoked the b5 exemption, a vague protection that is becoming more frequently cited by government agencies as an excuse to not release public documents. The b5 exemption is supposed to protect “inter-agency or intra-agency memorandum or letters which would be privileged in civil litigation,” but each agency interprets that meaning differently. It’s been used in the past by agency’s to withhold, then censor, documents including a history of the government’s nazi-hunting program and even the definition of when b5 should be invoked.

Just last month, the FCC responded to a Gizmodo request for emails containing jokes about Ajit Pai being a Verizon-back stooge, also citing b5 exemption. In both that case and this one, the exemption seems unusual, since neither correspondence, as far as we know, has to do with actual FCC policy-making, but two attempts at making jokes. I guess it’s all fun and games until someone files a FOIA request.

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