I. Fee Category

Upon receiving a FOIA request, an agency will place the requester in one of three “fee categories” based on the intended use of the records and/or the nature of the requester, and will — depending on the category — waive search, review, and/or some duplication fees.² Appealing your placement in a fee category is different from appealing the denial of your request that the agency waive all fees (which is discussed in the section on Fee Waivers).

The FOIA provides that “fees shall be limited to reasonable standard charges for document duplication when records are not sought for commercial use and the request is made by . . . a representative of the news media.”³ Additionally, requesters in this category receive the first 100 pages of duplication for free.⁴ If the agency denies your request to be placed in the “representative of the news media” category, you should appeal this finding by providing explanations and evidence of how you satisfy the definition of a “news media representative” under the FOIA, as well as under the agency’s regulations.

The FOIA defines “a representative of the news media” as “any 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.”⁵ It defines “news” as “information that is about current events or that would be of current interest to the public.”⁶ Therefore, you should provide any available documentation supporting the fact that you engage in such work in challenging an agency conclusion that you are not a “representative of the news media. For example, the National Security Archive — a research institution — obtained “representative of the news media” status by explaining that it intended to use government records to publish a set of documents on “topic[s] of current interest,” such as “United States policies toward various countries.”⁷ In support of this publication plan, the Archive submitted its grant proposal for the document sets.⁸

The FOIA also provides examples of entities that would qualify as news media representatives: “television or radio stations broadcasting to the public at large and publishers of periodicals (but only if such entities qualify as disseminators of ‘news’) who make their products available for purchase by or subscription by or free distribution to the general public.”⁹  Therefore, if you are affiliated with a news media outlet that falls into one of those categories, you should highlight that fact in your appeal letter. It may be helpful to cite some of your recent articles that have been published with that news outlet and — where possible — to submit your appeal letter on the outlet’s official letterhead. (Of course, taking such steps at the initial request level may prevent the need to argue such points in an appeal).

Importantly, those examples of “news media representatives” are “not all-inclusive.”¹⁰ The statute provides that “as methods of news delivery evolve (for example, the adoption of the electronic dissemination of newspapers through telecommunications services), such alternative media shall be considered to be news-media entities.”¹¹ Additionally, “[a] freelance journalist shall be regarded as working for a news-media entity if the journalist can demonstrate a solid basis for expecting publication through that entity, whether or not the journalist is actually employed by the entity.”¹² If you fall into this category, the statute specifies that “[a] publication contract would present a solid basis for such an expectation; the Government may also consider the past publication record of the requester in making such a determination.”¹³ If you have such documents, it may be helpful to attach copies of them to your appeal letter, or to provide a link to them, if they are available online.

You generally cannot claim that you are a news media representative merely based on the fact that you operate a website.¹⁴ One court held that a requester failed to demonstrate that he met the U.S. Patent and Trademark Office definition of a freelance journalist even though he owned a website on which he posted information about the agency’s activities, the website was featured in news articles, and he was invited to discuss the website on a webcast.¹⁵ The agency’s regulations, like the FOIA, specify that freelance journalists “must demonstrate a solid basis for expecting publication through” a news organization,¹⁶ and the requester had failed to demonstrate this.¹⁷ The requester did “not provide any evidence of traditional publication activities,” such “an editorialized work,” a “timely newsletter of current developments in a subject area,” “an electronic newsletter,” or “a subscription service related to his website.”¹⁸ Therefore, if you are a freelance journalist, it may be helpful to provide a copy of your publication contract and/or submit examples of past journalistic work, particularly if it has been published or broadcasted by the news platform or entity through which you intend to publish the work related to your request.

If the agency has previously placed you in this fee category with respect to a previous request, you should provide supporting documentation of this, such as a letter from the agency acknowledging this point. For example, where the Central Intelligence Agency denied the National Security Archive placement in this category with respect to some FOIA requests, after having previously granted it for others, a court ordered the agency to treat the Archive as a news media representative “for all pending and future noncommercial FOIA requests.”¹⁹ Even though the agency had granted “discretionary fee waivers” in some of the cases in which it denied the organization placement within its desired fee category, the court held that the agency’s denial of the fee category was still wrongful.²⁰

In addition to demonstrating that you are a journalist, you should also explain that you seek the records for journalistic and non-commercial purposes, as you may be denied placement in this fee category if your request is “in aid of . . . nonjournalistic activities.”²¹ The agency’s regulations may provide helpful language for journalists on that point.

For example, Department of Defense regulations require that in order to be placed in this fee category, the request must not seek the records for “commercial use,” but that “[a] request for records supporting the news dissemination function of the requester shall not be considered to be a request that is for a commercial use.”²² In a case interpreting that particular regulation, the U.S. Court of Appeals for the District of Columbia Circuit held that the fact that a news media representative intends to use the records in a publication to be offered for sale does not constitute a “commercial use.”²³ The court explained that such an interpretation would “frustrate Congress’s purpose to give the news media special status,” as “[m]ost news media organizations are for-profit enterprises.”²⁴ Therefore, if an agency denies you placement in the news media fee category on the basis that you will gain a profit from the sale of the work to be published, you should insert the relevant language from the agency’s regulations and/or the court’s ruling in your appeal letter.