William Davenport Hiring Documents & Financial Disclosure

To Whom It May Concern:

Pursuant to the Freedom of Information Act, I hereby request the following records:

I am a journalist with The Markup.

I hereby request all documents and materials related the hiring of William Davenport as the Chief of Staff and Senior Legal Advisor covering Wireless and International issues for FCC Commissioner Geoffrey Starks.

Here is a link to a press release announcing Mr. Davenport's hiring: https://docs.fcc.gov/public/attachments/DOC-356209A1.pdf

I am seeing all emails and hard-copy documents, both internal to the FCC and with other government agencies and members of the public, regarding the hiring of Mr. Davenport and what his role will be at the FCC, and any discussions about potential conflicts of interest with his previous employer, Ligado. I am also seeking all communications FCC staff have had with Ligado officials regarding Mr. Davenport.

In addition, I am seeking all financial disclosure forms Mr. Davenport has filed with the FCC. If there are other financial disclosure documents Mr. Davenport has filed with other government agencies that FCC officials cannot produce, please let me know, so I can go to those other agencies directly.

Please limit the time period for this search to between January 1, 2016 and the date when the search for responsive records is carried out.

I seek all responsive records regardless of format, medium, or physical characteristics. In conducting your search, please understand the term “communications” in its broadest sense, to include any written, typed, recorded, graphic, printed, or audio material. I seek records of any kind, including electronic records, audiotapes, videotapes, and photographs, as well as letters, emails, facsimiles, telephone messages, voice mail messages and transcripts, notes, or minutes of any meetings, telephone conversations or discussions. Our request includes any attachments to these records. No category of material should be omitted from search, collection, and production.

You may not exclude searches of files or emails in the personal custody of your officials, such as personal email accounts. Records of official business conducted using unofficial systems or stored outside of official files is subject to the Federal Records Act and FOIA. It is not adequate to rely on policies and procedures that require officials to move such information to official systems within a certain period of time; I have a right to records contained in those files even if material has not yet been moved to official systems or if officials have, through negligence or willfulness, failed to meet their obligations. If any potentially responsive records have been destroyed and/or transferred to other agencies or offices, such as the National Archives and Records Agency (NARA), then I request copies of the destruction or transfer slips as well as any other documentation relating to, mentioning or describing said transfer or destruction, to include but not be limited to confirmation that the FCC has no other copies of said records.

In addition, please note that in conducting a “reasonable search” as required by law, you must employ the most up-to-date technologies and tools available, in addition to searches by individual custodians likely to have responsive information. Recent technology may have rendered the FCC prior FOIA practices unreasonable. In light of the government-wide requirements to manage information electronically by the end of 2016, it is no longer reasonable to rely exclusively on custodian-driven searches.

Furthermore, agencies that have adopted the NARA Capstone program, or similar policies, now maintain emails in a form that is reasonably likely to be more complete than individual custodians’ files. For example, a custodian may have deleted a responsive email from his or her email program, but the FCC's archiving tools would capture that email under Capstone.

Accordingly, I insist that the FCC use the most up-to-date technologies to search for responsive information and take steps to ensure that the most complete repositories of information are searched.

Under the FOIA Improvement Act of 2016, agencies must adopt a presumption of disclosure, withholding information “only if . . . disclosure would harm an interest protected by an exemption” or “disclosure is prohibited by law.”

If it is your position that any portion of the requested records is exempt from disclosure, I request that you provide an index of those documents as required under Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974). As you are aware, a Vaughn index must describe each document claimed as exempt with sufficient specificity “to permit a reasoned judgment as to whether the material is actually exempt under FOIA.” Moreover, the Vaughn index “must describe each document or portion thereof withheld, and for each withholding it must discuss the consequences of disclosing the sought-after information.” Further, “the withholding agency must supply ‘a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of a withheld document to which they apply.’”

In the event some portions of the requested records are properly exempt from disclosure, please disclose any reasonably segregable nonexempt portions of the requested records. If it is your position that a document contains non-exempt segments, but that those non-exempt segments are so dispersed throughout the document as to make segregation impossible, please state what portion of the document is non-exempt, and how the material is dispersed throughout the document. Claims of non-segregability must be made with the same degree of detail as required for claims of exemptions in a Vaughn index. If a request is denied in whole, please state specifically that it is not reasonable to segregate portions of the record for release.

Please institute a preservation hold on information responsive to this request.

The Markup is an investigative, non-profit news organization. Any documents gathered as part of this FOIA request will be used as part of my reporting. As such, I am requesting a fee waiver of search and review fees as a member of the news media. 5 U.S.C. § 552(a)(4) (A)(iii). For additional details about CIR, please see our web site: www.themarkup.org.

Please be aware that under 5 U.S.C. § 552(a)(6)(A), a FOIA request is considered constructively denied after twenty business days and is subject to litigation on that basis. If my request is denied in whole or part, I ask that you justify all deletions by reference to specific exemptions of the act. As the law requires, I will also expect you to release all segregable portions of otherwise exempt exempt material.

I request that the FCC expedite the processing of this request. We certify to be true and correct to the best of our knowledge and belief, that there is an urgent need to inform the public about the federal government activity that is the subject of this request.

Mr. Davenport was previously at a telecom company called Ligado, which has a deeply controversial proposal to roll out a terrestrial wireless network on a portion of the wireless spectrum previously reserved for GPS. This proposal is currently under review by the FCC. If the FCC allows the plan to go through, it would be a multi-billion dollar windfall for Ligado. However, critics of the plan charge that Ligado's proposed could cause significant overloading interference on millions high-precision GPS receivers across the country, leading to billions of dollars of economic loss and (at least according to the head of a 911 operators industry group I spoke with) put a significant number of lives at risk.

It is essential that the public be informed if Mr. Davenport is in a position to influence this deeply consequential decision currently before the FCC. It is unclear when the agency's ruling on Ligado will come down, it's been pending for a while, but it would be deeply disappointing if these documents were not made public prior to that occurring.

If you have any questions, do not hesitate to contact me at (415) 786-0793. Thank you for your prompt attention to this request.

The requested documents will be made available to the general public, and this request is not being made for commercial purposes.

In the event that there are fees, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 20 business days, as the statute requires.

Sincerely,

Aaron Sankin