From the hotline

From the Spring 2002 issue of The News Media & The Law, page 23.

The Reporters Committee operates a toll-free hotline (800-336-4243) for journalists with questions about free press and freedom of information issues. In this column, attorneys who answer our phones, as well as media lawyers from around the country, answer questions we get from journalists.

Q: I am a book author writing a biography about a former political leader. Do biographers and autobiographers qualify as journalists when making requests for records under the Freedom of Information Act? How should I present my FOI Act requests in order to secure waivers from costs of searches and duplication of public records?

A: The costs of searching and copying records can quickly add up, possibly discouraging journalists, writers and historians from seeking public documents. That’s one reason the FOI Act offers fee waivers for researchers who can show they are providing a public service. Three media lawyers offer advice on how biographers can seek such waivers.

Elaine English, Graybill & English, LLC, Washington, D.C.: When Congress adopted the current fee structure for the FOI Act in 1986, it deliberately did not define what was meant by “representative of the news media.” Sen. Patrick Leahy, the bill’s sponsor, stated emphatically at the time that “it is critical that the phrases . . . be broadly interpreted.” While the Office of Management and Budget, the agency charged with enacting regulations construing this provision, focused on “news” as current events, the Court of Appeals rejected such a narrow definition by holding 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 a distinct work, and distributes that work to an audience.” National Security Archive v. Department of Defense, 881 F.2d 1381,1387 (D.C. Cir. 1989) Even the Department of Justice guidance acknowledges that free-lancers are entitled to the status of a representative of the news media, “when they can demonstrate a solid basis for expecting the information disclosed to be published.”

Any book author, researching and writing a work of general public interest that is intended to be published should definitely indicate his/her status and purpose in the initial FOI Act request. The author should qualify for “special” status, entitling him/her to get the first 100 pages of documents free and to pay only for duplication fees for pages thereafter. If the author already has a publishing contract for the work, that definitely should be mentioned in the initial letter. Any other works (books, magazine articles, etc.) previously published by the author should also be mentioned. Even in the absence of a publishing commitment for this particular project, a history of publication supports the author’s statement of intent for this request.

The fact that an author may make some money as a result of publishing the project is not seen as a “commercial” use that might otherwise disqualify him from the special status. Both OMB and DOJ guidance prohibit agencies from considering this as a commercial use. In my experience, serious free-lance authors who have a record of prior publications do not experience problems with most agencies when they ask for consideration as a representative of the news media.

Certainly, if the circumstances of the request are appropriate, applying for a full waiver of fees should also be considered.

Jay Ward Brown, Levine Sullivan & Koch, L.L.P., Washington, D.C.: Under the federal FOI Act, a “news media representative” making a request in his or her capacity as such generally will qualify for a waiver of certain search and duplication fees. Congress (perhaps wisely) did not define “news media representative” when the FOI Act was adopted. For their part, the courts do not appear to have ruled on whether biographers or autobiographers qualify, at least not in any published decision.

The Bush administration’s Department of Justice has taken the position that, under this definition, the requester must have a concrete plan for the publication and distribution of the work resulting from the request. Thus, when framing a request, it is important to establish your plan for publication as specifically as possible — e.g., ideally, by indicating that you have a contract with a publisher, that you have a track record of obtaining publication of prior works, that you are a scholar affiliated with a research institution, or even that you have been provided with a grant to conduct this particular research. First-time free-lance authors without a specific contract for publication or other institutional affiliation may find resistance to the assertion that they are “news media representatives.”

Of course, a requester — including a biographer — also can obtain certain FOI Act fee waivers regardless of whether he or she qualifies as a news media representative “if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government.” Campbell v. U.S. Dep’t of Justice, 164 F.3d 20, 35-37 (D.C. Cir. 1998) Thus, where there is any question whether a biographer or autobiographer will be able to qualify as a news media representative, the request should invoke, in the alternative, the “public interest” waiver and include an explanation of how release of the requested information will benefit the public, particularly any way in which the requested information will shed light on how the government operates. A biography of a political leader may well qualify for a public interest fee waiver even if the author does not qualify as a news media representative, but it is important to provide the justification for the waiver in as much detail as practicable in the initial request.

Bob Feinberg, Deputy General Counsel, American Lawyer Media Inc., New York City: The answer to the question requires a brief review of the fees described in the Freedom of Information Reform Act of 1986. The FOI Act provides for three different fees that may be assessed in response to FOI Act requests: (i) charges for duplication of materials, (ii) charges for search time spent looking for responsive materials, and (iii) review costs, i.e., charges for time spent in determining whether particular materials must be disclosed pursuant to the FOI Act.

Which of these fees are charged depends, in turn, on the identity of the person making the FOI Act

request. “Commercial use” requesters — those individuals whose FOI Act requests further commercial, trade or profit interests — are charged for all three fees: duplication, search and review. Requests made by “educational or noncommercial scientific institution[s], whose purpose is scholarly or scientific research; or a representative of the news media” result in only duplication fees being assessed. Requests made by all others who are neither “commercial use” requesters nor “scholarly” / “news media” requesters, will be charged for duplication and search fees, but not for review.

The FOI Act also provides for a waiver of fees “if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.”

There is actually more case law on the subject of biographers seeking fee waivers, as opposed to seeking reduced fees as scholars or members of the news media. As a result, the factors that agencies are to consider in determining whether to grant a fee waiver provide guidance for the drafting of a fee waiver request by a biographer:

• The subject matter of the requested records must concern identifiable “operations or activities of the government.” The requester should emphasize the informative value of the records requested in the context of government operations or activities, not simply the underlying content of the records themselves.

• The requested information should not already be in the public domain. Requests for information that is already publicly available are deemed not “likely to contribute” to public understanding.

• The requested information should contribute to the understanding of the public at large, not simply to the understanding of the requester or to a narrow segment of the population. In determining this factor, courts have looked to current publicity about the subject of the request in the mass media, previously published materials on the same subject, research grants given to the requester or others investigating the same subject, commitment letters from recognized publishers regarding the requester’s work, supporting letters from other scholars and archives currently maintained on the same subject. One federal court has commented that “courts have consistently overturned agency denials of fee waivers when requesters have made a legitimate, objectively supportable showing of using the requested information for scholarly research into political and historical events.” However, the researcher should make clear an intention to actively disseminate the information (for example, through the publication of a book) rather than simply passively making the information available to interested readers by, for example, providing it to a library or depository.

• Agencies evaluate the identity and credentials of the requester, as the requester’s ability and intention to share the information with the public (through the publication of a book, for example) weigh in favor of a finding of public benefit. A requester should, therefore, detail her credentials as a scholar in the particular field of inquiry, the nature of the research and the use to which she intends to put the materials. To the extent that specialized knowledge will assist the requester in understanding and communicating the information to the public, the requester should emphasize that she has this knowledge.

• Agencies consider whether the request furthers the commercial interest of the requester. The requester should therefore emphasize that any private gain (payment from a publisher, enhancement of professional status) will be outweighed by the value of widely disseminating the requested information and the requester’s analysis of the same. A fee waiver must be granted when the public interest in the materials is greater than any commercial benefit to the requester.

• The requested materials should “contribute significantly to public understanding.” While this factor is intended to be an objective one, the requester should clearly indicate the importance of the subject matter. This is also a relative test: the requester should be prepared to argue how the public’s understanding following the disclosure of the materials will be increased as compared to its understanding before such disclosure.

Q: A judge has issued a prior restraint on my reporting about a criminal case. I think the order is clearly unconstitutional. Can I ignore the order, since it is an unconstitutional prior restraint?

A: If you ignore the order, you may be held in contempt, even if the order is unconstitutional. The correct procedure is to appeal the order and ask for expedited review.

If you want to contest an order, it is better to challenge it and appeal first. If you violate the order, you may still be held in criminal contempt, even if the original prior restraint is reversed.

There are some courts that allow for reversal of the contempt citation in such a situation, but they are the exception.

Q: I am a newspaper photographer. While I was taking pictures of a crime scene for my newspaper, a police officer approached me and took my camera and wouldn’t give it back. Is this legal?

A: The police officer violated a federal law, the Privacy Protection Act of 1980, 42 U.S.C. § 2000aa. The law prohibits both federal and state officers and employees from searching for or seizing a journalist’s “work product” or “documentary materials” in the journalists’ possession.

Some limited exceptions allow the government to search for or seize certain types of national security information, child pornography, evidence that the journalists themselves have committed a crime, or materials that must be immediately seized to prevent death or serious bodily injury.

“Documentary materials” may also be seized if there is reason to believe that they would be destroyed in the time it took government officers to seek a subpoena. Those materials also can be seized if a court has ordered disclosure, the newspaper has refused and all other remedies have been exhausted.

Unless those exceptions are met, the police officer could obtain your film only by issuing a subpoena for it, which can be contested in court before compliance is mandated.

If an illegal seizure has taken place, a lawsuit against the police department or the officers involved will allow you to get your camera and film back, and even recover monetary damages and attorney’s fees.