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Media coalition files comments on restrictive Department of Defense FOIA regulations

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  1. Freedom of Information
The Reporters Committee for Freedom of the Press, joined by a national coalition of media organizations, has filed comments on…

The Reporters Committee for Freedom of the Press, joined by a national coalition of media organizations, has filed comments on proposed Department of Defense (DoD) Freedom of Information Act (FOIA) regulations. As the comments note, the press routinely relies on FOIA to gain access to government records in order to inform the public on the workings of the government and its elected officials. Ensuring agencies implement FOIA in a manner that is faithful to the spirit of the law and President Obama’s stated commitment to transparency is imperative in order for the press to perform its important role in our democracy.

The coalition includes the American Society of News Editors, the Associated Press, the Association of Alternative Newsmedia, Courthouse News Service, Dow Jones & Company, Inc., the Investigative Reporting Workshop at American University, the McClatchy Company, the National Press Club, the National Press Photographers Association, News Corp., the Seattle Times Company, and the Tribune Publishing Company.

According to the coalition comments, one of the most troubling aspects of the proposed regulations concerns how FOIA requests by members of the media are processed. The proposal specifically requires FOIA officers at the DoD to “advise PAOs [public affairs officers] of FOIA requests from news media representatives. The IDA [initial denial authority] also should inform PAOs in advance when they intend to withhold or partially withhold a record if it appears the withholding action may be a media issue.”

Requiring FOIA officers to notify public affairs officers “serves no legitimate purpose,” the coalition said. “[A]part from fee benefits and expedited processing, there is no part of FOIA that authorizes a request from a member of the news media to be treated differently from any other FOIA request. FOIA is about informing the public about what the government is up to, not informing the government about what the press is up to.”

The coalition noted that several incidents over the last few years have raised “significant concerns” about how FOIA requests related to politically sensitive topics are processed. For example, in 2010 it was discovered that the Department of Homeland Security (DHS) was sending certain FOIA requests to senior political advisors for special scrutiny. FOIA officers were asked to provide, among other information, whether the requester was a reporter. The DHS stopped the practice after inquiries were made by the Associated Press, but the episode illustrates how important it is for an agency’s FOIA regulations and procedures to respect the right of all persons to have access to information from the government without discrimination. The coalition requested that the provision of the proposed regulations giving special notice to FOIA requests from the media be deleted in its entirety.

Other portions of the coalition’s comments focused on ensuring members of the news media are entitled to expedited processing of FOIA requests that concern information that is urgently needed by the public. The comments requested that the regulations be modified to ensure that a wider range of information, including historic records, would be eligible for expedited processing.

Finally, the coalition commented on various provisions of the proposed rule relating to fees. Specifically, the comments argued that various sections needed to be changed or clarified to ensure fee benefits are awarded to media organizations that provide their services to the public for free and to freelance journalists.