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DOW, LOHNES & ALBERTSON v. PRESIDENTIAL COMMN. ON

January 23, 1984

DOW, LOHNES & ALBERTSON, Plaintiff
v.
PRESIDENTIAL COMMISSION ON BROADCASTING TO CUBA, et al., Defendants



The opinion of the court was delivered by: GREEN

GREEN, U.S.D.J.

 MEMORANDUM OPINION AND ORDER

 Plaintiff brings this action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 to compel production of documents relating to radio broadcasting to Cuba. Defendants Presidential Commission on Broadcasting to Cuba ("Commission") and National Telecommunications and Information Administration ("NTIA") have withheld 47 documents in whole or in part, claiming the protection of various FOIA exemptions, the attorney-client privilege and the attorney work-product privilege, to justify nondisclosure. Currently before the Court are the cross motions of plaintiff and defendants for summary judgment.

 Plaintiff's FOIA request, which was submitted to both defendants in March of 1982, sought disclosure of material relating to:

 
1. Radio broadcasting to Cuba;
 
2. The establishment of and/or proposals to establish a facility for broadcasting to Cuba, including, but not limited to, a facility popularly known as "Radio Marti";
 
3. The assignment of a frequency in either the government or non-government spectrum for broadcasting to Cuba. This would include, but not be limited to, all studies on frequency searches, analyses and assignments for broadcasting to Cuba and/or the extent of potential interference to non-government broadcast stations in the United States by broadcasting to Cuba and/or Cuban measures to jam or otherwise counter such broadcasts;
 
4. All studies relating to the likelihood or capacity of Cuba to cause interference to a United States Government station broadcasting to Cuba;
 
5. All studies relating to the likelihood or capacity of Cuba to cause interference to non-government broadcasting stations in the United States;
 
6. The use of Radio Marathon, a Voice of America operated broadcasting facility located in Florida, for broadcasting to Cuba. This would include, but not be limited to, studies prepared in the late 1950's and/or the early 1960's, concerning broadcasting to Cuba on Radio Marathon;
 
7. The number of TV, AM, FM and short wave receivers in Cuba;
 
8. The extent and quality of reception in Cuba of United States TV, AM, FM and shortwave broadcasts; and
 
9. Minutes of the closed meeting of the Presidential Commission on Broadcasting to Cuba held Tuesday, March 2, 1982, and the minutes of all other closed meetings held at any other time.

 In response to that request, both defendants made substantial disclosures to plaintiff, but withheld all or part of 47 documents (32 of defendant Commission and 15 of defendant NTIA), asserting the applicability of FOIA Exemptions (b)(1) (the national security exemption), (b)(5) (the deliberative process privilege) and/or (b)(3) (applicable to material specifically exempted from disclosure by certain other statutes). Defendant NTIA also asserts that the attorney-client privilege and the work-product privilege shield one document from plaintiff's FOIA request. To support their claims of exemption and privilege, defendants have submitted the declaration of Frank M. Machak of the Foreign Affairs Information Management Center of the Department of State which processed plaintiff's FOIA request, the affidavit of Thomas W. Ainsworth, the official directly responsible for the review of Department of State documents pursuant to FOIA ("Ainsworth Affidavit") and the affidavit and supplement of Richard H. Shay, chief counsel and FOIA officer for defendant NTIA ("Shay Affidavit", "Supplemental Shay Affidavit"). The latter three provide a brief description of each document at issue and detail ...


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