The District of Columbia Circuit Court of Appeals issued a decision which could make a huge difference for alternative media and nonprofit organizations seeking to have fees waived when making Freedom of Information Act (FOIA) requests.
Under FOIA, a requester can have fees from document searches, duplication, and review of records waived if the individual or organization is a “representative of the news media.” But government agencies often refuse to grant waivers to advocacy organizations or lesser-known media outlets, which can have a prohibitive impact. More and more agencies—at all levels of government—charge high fees for public documents.
For three requests, the Federal Trade Commission refused to grant a fee waiver to Cause of Action, a nonprofit organization which sought records on guides for the “use of product endorsements in advertising.”
The FTC responded to the first request and rejected a fee waiver because Cause of Action would not “contribute significantly to public understanding of the operations or activities of the government.” It later declared in an administrative appeal, “You have failed to provide adequate information about your dissemination plans.”
In response to a second request (which focused specifically on FTC’s process of granting fee waivers), the FTC informed Cause of Action during an administrative appeal it had failed to provide “sufficient information to establish [its] status as a news media representative.”
Judge Merrick Garland disagreed [PDF] with a district court’s previous decision in favor of the FTC, because the focus had been on the requests themselves and not the requester. Cause of Action posts content to a public website to distribute information, which should be enough to qualify it as a publisher entitled to a waiver.
Additionally, as Garland noted, FOIA was amended by Congress in 2007 to define “a representative of the news media” as “a person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience.” This definition encapsulates groups like the National Security Archive, which disseminate collections of government documents, and non-legacy media organizations as well.
Agencies should not be able to discriminate against organizations, which are not well-known legacy media outlets like The New York Times or NBC News. However, agencies get away with it by claiming budgets are tight and they need to charge big expenses to process requests. This makes public documents request costly, especially for independent journalists and small alternative media or nonprofit organizations.
There is a long list of instances, where the government abused its authority and refused to recognize individuals or organizations as news media representatives under FOIA:
- Mike Masnick of Techdirt.com had a fee waiver request rejected by ICE. Amazingly, the ICE FOIA Officer wrote, “I have determined that your fee waiver request is deficient because.” No explanation followed. (2014)
- Homeland Security rejected MuckRock’s request for a fee waiver because its business model involves driving traffic to its website through the publication of government documents—a “commercial interest.” (2014)
- Jason Leopold, an investigative journalist renowned for his FOIA work, was denied [PDF] a fee waiver for records from U.S. Army Criminal Investigative Command (CID) on detainee treatment at Guantanamo Bay. (2014)
- Sharon Weinberger, who is now a National Security Editor with The Intercept, had a fee waiver denied during Sunshine Week by the FBI. It was the “first in all” of her years filing FOIA requests. (2014)
- Journalist CJ Ciaramella, a frequent FOIA requester, had the Treasury Department deny him a fee waiver for records on Jay-Z and Beyonce’s trip to Cuba. (2013)
- MuckRock’s co-founder was denied a fee waiver by the NSA for records related to the opening of the spy center in Bluffdale, Utah. (2013)
- Before his Dirty Wars project, journalist Jeremy Scahill had a FOIA request kicked by Joint Special Operations Command to SOCOM and then CENTCOM, and later CENTCOM denied his request for a fee waiver, even though he was with The Nation Magazine. (2011)
- ACLU of Southern California was denied a fee waiver for Immigration and Customs Enforcement documents worksite enforcement policies and practices. (2011)
- The ACLU was denied [PDF] a fee waiver for records on the detention and treatment of prisoners at the Bagram prison in Afghanistan. (2009)
One of the most egregious examples of abuse has occurred in requests by Leopold and MuckRock users, where records were denied to representatives of the news media because another requester had not paid fees. The government accused Leopold of conspiring with another journalist to avoid paying fees. (Of course, members of the news media should not be paying any fees at all.)
As Human Rights Watch points out, fees are often arbitrary. A request to the Air Force may lead to a charge of $168,316 while a similar request leads to the Army charging $1,584. This disproportionately impacts journalists with alternative media outlets.
States increasingly seem to depend on huge fees for public records requests for funding resources. One law enforcement lobbyist in Kansas opposed lowering costs for open records because it would mean “fewer dollars to buy police equipment, fewer dollars to put into investigations.”
Fortunately, the law is on the side of alternative media and nonprofit organizations. Syracuse University’s Transactional Records Access Clearinghouse prevailed against President Barack Obama’s administration in July after the government tried to charge huge fees for records from DHS and ICE. The federal judge recognized they qualified as a news media representative.
Ryan Shapiro, a renowned transparency researcher and FOIA specialist at the Massachusetts Institute of Technology, has said, “The Freedom of Information Act is one of the most under-appreciated elements of the entire American experiment. The notion that the records of government are the property of the people, and all we need to do to get them is to ask for them, is radically democratic.”
While there is great need for reform to FOIA to create enforcement mechanisms which force government agencies to comply with requests—and in a timely fashion, it remains an effective way for independent journalists and alternative media outlets to break major news stories. The fact that it is getting harder for the government to deny fee waivers is critical for the future of public interest journalism.