Federal Communications Commission FCC 14-140
DISSENTING STATEMENT OF
COMMISSIONER AJIT PAI
Re: Greenberg Traurig, LLP, On Request for Inspection of Records, FOIA Control No. 2013-25.
This item raises a simple question:  Is a private law firm representing a private client part of the 
Federal Communications Commission?  My answer is no, but the Commission disagrees.  In order to 
shield documents from public disclosure, today’s FCC order brings the attorneys of Wiltshire Grannis 
into the Commission’s ranks.  Because that conclusion is inconsistent with the text and purpose of the 
Freedom of Information Act (FOIA), defies common sense, and does not reflect a commitment to 
transparency, I must respectfully dissent.
This dispute involves a FOIA request for communications between attorneys at Wiltshire 
Grannis
1
and those at the FCC.  And in this item, the Commission refuses to produce those 
communications on the ground that they are protected from public disclosure by FOIA Exemption 5.  
Looking to the text of the statute, the Commission specifically claims that these documents constitute 
“intra-agency memorandums or letters which would not be available by law to a party other than an 
agency in litigation with the agency.”
2
But are these documents really intra-agency memorandums?  Getting to the basics, “intra” means 
“within” or “in the interior”
3
so intra-agency means within an agency.
4
  Thus, for communications 
between Wiltshire Grannis and the FCC to be intra-agency memorandums, the Commission must 
conclude that Wiltshire Grannis was functioning as part of the FCC.
For me, that is a bridge too far.  To state the obvious, Wiltshire Grannis is not a Commission 
Bureau or Office.  Its attorneys certainly are not compensated pursuant to the GS scale.  And when they 
come to lobby the Commission, its attorneys must comply with our ex parte rules.
Notwithstanding these facts, the Commission suggests that Wiltshire Grannis became part of the 
FCC for purposes of this dispute when the FCC decided to file an amicus brief supporting one of the 
firm’s clients in the U.S. Court of Appeals for the Fourth Circuit.
Had the Commission hired Wiltshire Grannis to represent us in court or to function as 
consultants, I could see the argument that the firm should be treated as a part of the FCC for FOIA 
purposes.  As the U.S. Supreme Court has noted in a seminal case expounding Exemption 5, “the fact 
about the consultant that is constant in the typical cases is that the consultant does not represent an interest 
of its own, or the interest of any other client, when it advises the agency that hires it.  Its only obligations 
are to truth and its sense of what good judgment calls for, and in those respects the consultant functions 
just as an employee would be expected to do.”
5
  In such cases, the Court has indicated that “consultants 
may be enough like the agency’s own personnel to justify calling their communications ‘inter-agency.’”
6
That is not the case here.  Wiltshire Grannis was not hired to represent or provide advice to the 
FCC.  Rather, in communicating with the FCC, it was representing a private client, the Lansdowne on the 
                                                          
1
Following the events relevant to this item, Wiltshire & Grannis LLP (Wiltshire Grannis) changed its name to 
Harris, Wiltshire & Grannis LLP.
2
Memorandum Opinion and Order at para. 8 (quoting 5 U.S.C. § 552(b)(5)) (emphasis added).
3
See Webster’s New International Dictionary 1302 (2d ed. 1958).
4
See, e.g., Tigue v. U.S. Dep’t of Justice, 312 F.3d 70 (2d Cir. 2002) (“‘[I]ntra-agency’ documents are those that 
remain inside a single agency.”).
5
Dep’t of the Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 10–11 (2001) (emphasis added) 
(Klamath).
6
Id. at 12.
Federal Communications Commission FCC 14-140
2
Potomac Home Owners Association, Inc.  In each communication, Wiltshire Grannis had an ethical 
responsibility to represent its client’s interest, not the federal government’s.
7
The Supreme Court’s Klamath decision is squarely on point.  There, the Court rejected the 
argument that a Tribe’s communications with the Bureau of Reclamation were “intra-agency” 
memorandums protected by Exemption 5.  Critically, the Court said that the Tribe “would be pressing its 
own view of its own interest in its communications with the Bureau.”
8
  So too here.  In its 
communications with the Commission, Wiltshire Grannis was pressing its client’s interest, not the
government’s.  Therefore, those communications cannot reasonably be described as “intra-agency” 
memorandums.
9
* * *
President Obama has stated that the Freedom of Information Act “should be administered with a 
clear presumption:  In the face of doubt, openness prevails.”
10
  Today, the Commission falls woefully 
short of meeting that standard.  
In the meantime, all that is left to say is “welcome” to our new FCC colleagues, the attorneys of 
Wiltshire Grannis. 
                                                          
7
While the Commission maintains that those interests were one and the same once the FCC decided to file an 
amicus brief supporting the firm’s client’s litigation position in the Fourth Circuit, that argument ignores the realities 
of litigation.  A private party and the FCC as an amicus might share a similar objective in the litigation, but their 
strategic interests often diverge.  A private party is generally more interested in winning a particular dispute while 
the FCC is generally more concerned with the development of a particular body of law.  This, among other things, 
can lead parties ostensibly on the same side to make and/or emphasize different arguments.  Moreover, even on 
mundane issues, interests are distinct.  For example, a party and an amicus will often discuss how to divide time at 
oral argument.  And having worked in the Office of General Counsel, I can assure you that both sides to such 
conversations are not pursuing a common interest.  The FCC often wants more time than the private party’s counsel 
is willing to cede.
8
Klamath, 532 U.S. at 13.
9
To the extent that the Fourth Circuit’s decision in Hunton & Williams v. U.S. Dep’t of Justice, 590 F.3d 272 
(2010), points in the other direction, I find Judge Michael’s dissenting opinion in that case to be more persuasive.  
See id. at 290–91 (“The majority argues that when an outsider and the government have a unitary interest that fits 
within the common interest doctrine, communications between the outsider and the agency can be understood as 
‘intra-agency’ under exemption 5.  The common interest doctrine, however, only relates to the second condition of 
the exemption, that is, the communications ‘must fall within the ambit of a privilege against discovery.’  Satisfaction 
of the second condition cannot serve as automatic satisfaction of the first condition.  As the Supreme Court 
emphasized in Klamath, there is ‘no textual justification of draining the first [intra-agency] condition of independent 
vitality,’ and ‘the first condition of Exemption 5 is no less important than the second.’  Failure to satisfy the first 
(intra-agency) condition ‘rules out any application of Exemption 5’ to a communication that would otherwise be 
privileged against discovery.”  (internal citations omitted)).
10
President Barack Obama, Memorandum for the Heads of Executive Departments and Agencies (Jan. 21, 2009).