The Federal Communications Commission is refusing to release the draft versions of jokes told by Chairman Ajit Pai at a recent dinner, claiming that releasing the drafts would "impede the candid exchange of ideas" within the commission.

In December, Pai gave a speech at the annual FCC Chairman's Dinner and played a video that attempts to lampoon critics who accuse Pai of doing the bidding of Verizon, his former employer. The video was shown less than a week before the FCC voted to repeal net neutrality rules, a favorable move for the broadband industry requested by Verizon and other ISPs.

The satirical skit shows Pai planning his future ascension to the FCC chairmanship with Verizon executive Kathleen Grillo in 2003, the last year Pai worked as a Verizon lawyer. The video shows Pai and the Verizon executive plotting to install a "Verizon puppet" as FCC chair.

Document release would “harm” FCC processes

Gizmodo subsequently filed a Freedom of Information Act (FoIA) request for "any communications records from within the chairman's office referencing the event or the Verizon executive," the news site wrote yesterday.

"Nearly a dozen pages worth of emails were located, including draft versions of the video's script and various edits," Gizmodo wrote. "The agency is refusing to release them, however; it is 'reasonably foreseeable,' it said, that doing so would injure the 'quality of agency decisions.'"

The FCC's search for records in response to Gizmodo's request "returned no communications whatsoever with Kathy Grillo," the article said.

Pai has repeatedly praised himself for making the FCC more "transparent" in its deliberations, and criticized previous FCC chairs for not releasing the drafts of agency decisions before they are voted on. But Pai's FCC has also stonewalled several FoIA requests, including one submitted by Ars for records related to the FCC's claim that a DDoS attack targeted the online system for accepting public comments while the agency was pursuing its repeal of net neutrality rules.

Here's the highlight from the FCC's denial of Gizmodo's latest FoIA request:

In the present case, we have withheld responsive records which solely contain internal, intra-agency discussions between FCC staff. The records consist of internal deliberations among FCC staff regarding the referenced video. These deliberations are primarily comprised of draft versions of the video's script and edits thereto. We have determined that it is reasonably foreseeable that disclosure would harm the Commission's deliberative processes, which Exemption 5 is intended to protect. Release of this information would chill deliberations within the Commission and impede the candid exchange of ideas.

The FCC letter to Gizmodo says that records can be kept secret if they were "prepared in order to assist an agency decision maker in arriving at his decision" and "would expose an agency's decision-making process in such a way as to discourage candid discussion within the agency and thereby undermine the agency's ability to perform its functions."

The exemption "encompasses a deliberative process privilege intended to 'prevent injury to the quality of agency decisions,'" the FCC letter also said.

We asked Pai's office today to explain how the draft versions of jokes could "chill deliberations and impede the candid exchange of ideas" and will update this story if we get a response.

The FoIA denial is dated February 2, the same day that Pai's FCC released a Broadband Deployment Report that takes credit for projects that were funded by the Obama administration and attributes them to Pai's net neutrality repeal.

FoIA expert calls refusal “absurd”

Gizmodo writer Dell Cameron plans to file an application for review with the FCC to appeal the denial, he told Ars.

The FoIA law allows agencies to withhold records in certain scenarios. The exemption cited by the FCC in this case protects "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency," according to a Department of Justice [DOJ] FoIA guide.

This exemption is generally used to protect deliberations related to government policy decisions rather than deliberations related to jokes. The FCC letter does not explain why this exemption should cover deliberations like the ones that produced the video, which was not an official FCC ruling or even a general statement of policy.

The DOJ says says that "records covered by Exemption 5 are good candidates for discretionary release."

Gizmodo talked to FoIA experts who scoffed at the FCC's reason for denying the records request.

"To argue that this video amounts to the same kind of deliberative process that goes on behind the scenes in terms of an agency deciding an official policy on a topic, or what actions it's going to take, is absurd," said Adam Marshall, an attorney at the Reporters Committee for Freedom of the Press. "The deliberative process is frequently used to withhold embarrassing information or inconvenient information. I have no idea how a draft of a skit that was supposed to be funny would impair the FCC's decision-making process on anything, except on, I guess, maybe future skits."

The Deliberative Process Privilege is the most widely abused FOIA exemption, Nate Jones, director of the FOIA Project at the National Security Archive, told Gizmodo. Jones pointed to guidelines issued by the Obama administration, which told agencies "that records cannot be withheld merely to protect public officials from embarrassment, or 'because errors and failures might be revealed, or because of speculative or abstract fears.'"

Grooming a “Verizon puppet” to lead FCC

At the FCC Chairman's Dinner, which is hosted by the Federal Communications Bar Association, Pai made a joke about collusion and then played the finished version of the video for the audience. The video contained this exchange between Pai and the Verizon executive:

Verizon executive: "As you know, the FCC is captured by industry. But we think it's not captured enough. We want to brainwash and groom a Verizon puppet to install as FCC chairman. Think Manchurian Candidate." Ajit Pai: "That sounds awesome." Verizon executive: "I know, right? There are only two problems. First, this is going to take 14 years to incubate. We need to find someone smart, young, ambitious, but dorky enough to throw the scent off." Ajit Pai: "Hello." Verizon executive: "So you will do it?" Ajit Pai: "Absolutely. But you said there was another issue?" Verizon executive: We need to find a Republican who can win the presidency in 2016 to appoint you FCC chairman. I think our best bet is an outsider, but I have no idea who that would be. If only somebody can give us a sign.

At that point in the video, a picture of Donald Trump appeared. "And that, ladies and gentlemen, is how I became chairman of the FCC," Pai told the audience. Laughs and applause followed.

This article was edited to specify that the FCC Chairman's Dinner is hosted by the Federal Communications Bar Association.