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FCC Affirms Decision to Allow Release of Privilege Log from KUSF Letter of Inquiry

KUSF Rally April 2011 (Photo: J. Waits)

KUSF Rally April 2011 (Photo: J. Waits)

With 2012 drawing to a close, there’s a new twist in the nearly two-year-old saga of KUSF 90.3 FM. Although the FCC has approved the license assignment from University of San Francisco (USF) to Classical Public Radio Network (CPRN), various appeals are ongoing.

Former KUSF listener Ted Hudacko, who filed a Freedom of Information Act (FOIA) request more than a year ago, just got word that the FCC is recommending the release of a document (a privilege log) that USF and CPRN have been shielding. In a December 21, 2012 memorandum, the FCC denies USF and CPRN’s “request for confidential treatment” and denies USF’s application for review. If USF does not seek judicial review within 10 days, the FCC will “direct the Media Bureau to produce the privilege log to Mr. Hudacko.”

Hudacko had previously filed a petition to deny the KUSF license assignment as well as a motion to dismiss and an application for review. Following the University of San Francisco (USF) station’s shut-down in January, 2011 and subsequent lease agreement with KDFC operator Classical Public Radio Network (CPRN), USF’s license assignment application was met with scrutiny by the FCC. In a June, 2011 letter of inquiry, the FCC sought additional documentation from USF and CPRN in order to evaluate the legality of the lease and purchase of 90.3 FM. Part of the letter also stated instructions in regard to confidential information. The letter stated,

“If either party withholds any information or Documents under claim of privilege, it shall submit, together with any claim of privilege, a schedule of the items withheld that states, individually as to each such item, the numbered inquiry to which each item responds and the type, title, specific subject matter, and date of the item; the names, addresses, positions, and organizations of all authors and recipients of the item; and the specific ground(s) for claiming that the item is privileged.”

In response to the letter of inquiry, USF requested that the FCC limit the scope of documents required. Despite objections by Friends of KUSF and Ted Hudacko (who had both filed petitions to deny the license assignment), this request was granted. Following the production of the documents in response to the letter of inquiry, Hudacko submitted a FOIA request in November, 2011 asking for copies of  “all documents submitted by University of San Francisco and Classical Public Radio Network as their Joint Response to the Commission’s June 28, 2011 administrative Inquiry in the matter of the KUSF-FM license transfer and which information has improperly been asserted as confidential by USF and CPRN.” As Hudacko pointed out in his FOIA request, as a petitioner he was provided with a redacted copy of the letter of inquiry response. His copy did not include 5 items which USF and CPRN asked for confidential treatment on, including salary information for USF and CPRN employees, donor and underwriting documentation for USF, donation and underwriting documentation for CPRN, and a privilege log.

According to the Memorandum Opinion and Order (PDF) released by the FCC on December 21, the FCC is affirming its earlier decision to allow the release of a privilege log that University of San Francisco is attempting to keep private. Although Hudacko’s initial request to have a privilege log released was granted by the FCC earlier this year, USF appealed that decision. The FCC’s memorandum from December 21 states:

“…the University of San Francisco (University) has filed an Application for Review challenging the Bureau’s decision to release a ‘privilege log’ submitted by the University in response to a Letter of Inquiry (LOI) from the Bureau. We find that the privilege log is an agency record subject to the FOIA, and that the University did not demonstrate that the log is a confidential attorney-client communication that can be withheld under FOIA Exemption. We therefore affirm the Bureau’s decision.”

The FCC denied USF/CPRN’s request for confidential treatment of the privilege log and denied USF’s application for review. According to the memo, “University of San Francisco may seek judicial review of this action pursuant…If University of San Francisco does not seek a judicial stay within ten (10) working days of the date of release of this memorandum opinion and order, we direct the Media Bureau to produce the privilege log to Mr. Hudacko.”

When I spoke with Hudacko over email today, he told me that he wanted to express “grateful appreciation to Chairman Genachowski and the four Commissioners who participated in reaching this decision on my FOIA request.” When I asked him about the specific implications of the privilege log, he told me, “As to the privilege log and USF’s efforts to shield it, the aphorism goes ‘Where there’s smoke, there’s fire.’  I look forward to reading and sharing it, then awaiting the Commission’s decision on our Applications for Review of the license transfer.”

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