Media Matters

From the Fall 2009 issue of The News Media & The Law, page 9.

Being a member of the news media has its advantages when it comes to the Freedom of Information Act. Individuals and organizations that can claim news media status are exempt from certain fees incurred when agencies fill requests, unlike requesters from the general public.

Journalists can only be charged for the reasonable cost of copying records — commercial requesters pay for searching and reviewing as well — but the definition of a news media requester has been a matter of some debate.

Over the years, disputes over who qualifies have ended up in court. In 2007, FOIA amendments attempted to clarify the definition of news media requesters for fee-waiver purposes. But with the definition of a journalist evolving so rapidly, FOIA requesters say some agencies are having trouble catching up.

“Most requesters who get turned away by the agencies don’t have the ability to go to court, so they end up being shut out of the FOIA,” said Meredith Fuchs, general counsel of the National Security Archive who has testified before Congress about FOIA reform. “I think that’s one reason to get agencies to have regulations consistent with the law.”

The discussion began before “bloggers” were even on the radar. In 1986, Congress added categories of requesters to the FOIA and linked the amount of fees charged to the type of requester. Members of the news media received the most favorable treatment because they need only pay for actual copying costs. The next-best fee waiver, the public interest waiver, is available to organizations or individuals that plan to disseminate information that leads to increased public understanding of the government. The amendments created confusion, however, as to which groups qualify for the news media waiver.

In the 1989 case National Security Archive v. Department of Defense, a federal appeals court in Washington, D.C. rejected the Office of Management and Budget’s interpretation of the definition of the news media, which required journalists to be affiliated with an official broadcaster or publisher and defined news as strictly information “about current events or of current interest to the public.”

The appeals court rejected such a narrow reading and said that “representative of the news media” should be interpreted broadly. The court held that a representative of the news media is “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 distinct work, and distributes that work to an audience” and that the archive, an independent nongovernmental research institute at George Washington University, was a member of the news media.

Courts have used the language in that decision as the basis for granting fee waivers to various authors, freelance journalists and writers of nonprofit or organizational newsletters. For instance, in the 1999 case Hospital & Physician Publishing Inc. v. Department of Defense, a federal court in Illinois granted news media status to a small publisher that primarily conducted information retrieval because it planned to begin publishing a newsletter.

Similarly, in the 2003 case Electronic Privacy Information Center v. Department of Defense, the federal court in the District of Columbia determined that EPIC, a nonprofit educational organization, qualified as a member of the news media because the number of books it had already published surpassed the standard set in the National Security Archive case.

The Justice Department’s interpretation of which organizations qualify for the waiver has given way to multiple disputes. The department has granted news-media status to the National Security Archive, but not the Reporters Committee’s magazine The News Media and the Law. Even when groups challenge denials in court, judges offer very different opinions.

In the 2000 case Judicial Watch v. Department of Justice, the same court ruled in favor of a media fee waiver for a nontraditional news disseminator. Although the judge noted that the public interest group Judicial Watch’s Web site was “self-serving,” the court held that the organization should not be disqualified as a representative of the media simply because it used technology to deliver information to its readers.

Other judges, however, disagreed. In 2000 and 2001, Judicial Watch was involved in a number of fee-waiver disputes with the Justice Department. The federal court in the District of Columbia found that because the watchdog group portrayed itself online as a public-interest law firm — not a member of the news media — it should not be allowed to claim news media status simply to obtain a fee waiver. In the court’s decision, the judges pointed out that since Judicial Watch often serves as a source of information for the news media, it cannot itself be a representative of the media.

In 2006, the National Security Archive encountered a similar setback when the CIA denied its news media fee waiver. The CIA based the denial on a new policy that said records must concern current events, be of interest to the general public and enhance the public’s understanding of governmental operations in order to qualify for a fee waiver, despite the 1989 federal decision that specifically granted the archive media status.

When the CIA determined that two of the archive’s requests — queries for Taliban biographical documents and records related to the U.S. policy in Afghanistan during the Carter administration — did not meet its new standard for newsworthiness, the archive filed suit in a District of Columbia federal court. The suit was dismissed when the CIA amended its 2005 revisions after critics charged it was trying to shut down public debate.

The emergence of new media journalism has ratcheted the debate over media status up another notch. In 2007, Sens. Patrick Leahy, D-Vt., and John Cornyn, R-Tex., joined forces to improve government transparency in the first meaningful reform to FOIA in more than a decade. The Openness Promotes Effectiveness in our National Government Act included bloggers, Internet columnists and freelance journalists. President George W. Bush signed the bill into law at the end of that year.

The amendments attempted to clarify whether organizations like Judicial Watch can claim news media status for fee-waiver purposes by taking the exact language of the 1989 National Security Archive case and writing it into law. That definition explicitly included members of the alternative press, electronic news gatherers and freelance journalists with an established track record. The reforms also codified the court’s ruling that a book author who compiles and edits information from documents is entitled to a media status to obtain a fee waiver.

Public access advocates say there is still room to clarify who qualifies as a member of the news media even after the 2007 reforms. While the amendments made clear that existing news companies could expand their reporting online, the status of independent online journalists is still on shaky ground.

“It ensures that people don’t lose media status as they start disseminating news through new forms of communication, but I don’t think it resolves fully who qualifies,” Fuchs said.

Part of the problem, Fuchs explained, is that agencies have not changed their regulations to match the new amendments and policies can vary from agency to agency.

The policy on the CIA’s Web site conflicts with the regulations it amended after the archive case. It states that the news media consists of “[r]epresentatives of US newspapers, television stations, radio stations, and freelancers (if publishing through one of these news organizations) disseminating current events of interest to the general public to enhance its understanding of the operation or activities of the US Government.”

Fuchs said this statement is inconsistent with the archive case, the law and the CIA’s own regulations. “There is nothing that limits news media status to U.S. news media. The law certainly doesn’t say that,” Fuchs said.

Some organizations are news media requesters at some agencies but not others. Chris Farrell, director of investigations and research at Judicial Watch, describes an ongoing battle with the Defense Department over the fee-waiver issue, despite media status recognition from other agencies. The department has argued that Judicial Watch engages in lobbying even though the Air Force, the Department of Treasury, the Department of Housing and Urban Development and other agencies found otherwise.

“The whole world says we are members of the media, except the Department of Defense,” Farrell said. “They seemed very determined not to identify us as members of the media.”

The proprietor of The Black Vault — a conspiracy Web site that has compiled one of the largest private collections of government documents in the world — has also faced fee-waiver resistance from the Defense Department, the CIA and the National Security Agency. John Greenewald, Jr., a freelance journalist who has contributed articles to newspapers across the country including the L.A. Daily News, and the Baltimore Sun, says he runs into the same problems as Judicial Watch when it comes to obtaining news media status — some agencies have agreed to classify him as such, others have not.

“Roughly a quarter of a million people come to my site every month, which is free, to download tens of thousands of pages of government material on topics ranging from World War II, to current events of this year,” said Greenewald in an e-mail pleading Senators Dianne Feinstein, Leahy and Cornyn to help.

Without a fee waiver, Greenewald’s records requests can cost thousands of dollars. The National Security Agency estimate for one search was $8,000 and the agency couldn’t guarantee it would hand over the records after reviewing them. According to Greenewald, the CIA wants him to agree to pay all fees upfront but refuses to provide an estimate. The appeals process can take six months or more and Greenewald said he cannot afford to litigate.

The Defense Department concluded that Greenewald’s work is not in the public interest and cannot be categorized as news. The department’s language also means it would be futile for Greenewald to argue for the next-best fee waiver that exists for individuals and organizations who seek information for the public interest.

Even if The Black Vault could obtain a public interest fee waiver, which are only awarded on a case-by-case basis after meeting strict criteria, Judicial Watch’s Farrell says nontraditional media should not have to rely on a waiver that was intended for public interest organizations.

“It’s the principal of the thing,” Farrell said. “Those same outlets are increasingly the source of an awful lot of people’s first look at the news . . . they are breaking news, coming up with compelling newsworthy stuff.”