III. "Exceptional Media Interest" Standard

The Department of Justice’s FOIA regulations provide that in addition to the above two-part compelling need standard, requesters may also seek expedited review by showing that the request concerns “[a] matter of widespread and exceptional media interest in which there exist possible questions about the government’s integrity which affect public confidence.”⁵³

The Federal Housing Finance Agency⁵⁴ and the Department of Veterans Affairs⁵⁵ are some of the agencies that have adopted similar provisions. Where this basis for expedited review is available, you should both argue compelling need based on two-part standard provided in the FOIA, as well as the existence of exceptional media interest.

As with the “compelling need” standard, you should provide examples of news coverage of the subject of the request to demonstrate “exceptional media interest.” You should ensure that any articles or sources cited on this point demonstrate media interest in “the exact subjects of the FOIA request,” rather than in “the general subject area of the request.”⁵⁶ One court held that a requester was not entitled to expedited review on this basis as found in the Justice Department regulations for a request for records related to the organizational structure of a joint terrorism task force, as well as the task force’s relationship with other government entities.⁵⁷ The news articles submitted to demonstrate “exceptional media interest” contained “only a few generalized references” to the task force, rather than discussions of the organization and relationships of the task force, and therefore failed to show media interest in the specific topic of the request.⁵⁸

In contrast, a requester organization met the “exceptional media interest” standard where it submitted articles “published in a variety of publications” that “repeatedly reference[d] the ongoing national discussion” about the national controversy and discussion centering on the government’s controversial use of Section 215 of the Patriot Act in gathering intelligence the exact topic on which the organization requested records.⁵⁹

It would be wise to provide articles to the agency that show the media interest in the precise subject of your records request, and that are published in different sources and different regions.