The U.S. Court of Appeals for the D.C. Circuit heard arguments Tuesday in Cause of Action v. FTC, a case that challenges whether the Federal Trade Commission properly denied fee waiver requests made by the non-profit group Cause of Action. The group asserted it was entitled to a fee waiver both because its requests were in the public interest and they are a representative of the news media. Katie Townsend, Litigation Director at the Reporters Committee, argued before the court as amicus curiae in support of the Cause of Action, focusing on the changing nature of disseminating information to the public in the digital age.
The oral arguments before Chief Judge Garland, Judge Brown, and Judge Sentelle saw extensive questioning from the bench, and extended well over the allotted time to almost 80 minutes. The judges’ questioning highlighted many of the issues that are affecting the news media at large, especially regarding the online dissemination of information.
The court repeatedly raised the question of how it should determine what counts as “an audience,” a question that must be resolved to determine whether an entity is a representative of the news media and therefore qualifies for reduced fees under FOIA. Townsend explained that online news is a growing source of news for many Americans, and argued that because today many people seek out news online, any distinction based on active versus passive distribution that may have once been used to define the news media is no longer appropriate.
Additionally, noting that the 2007 amendments to FOIA were intended to make it easier for alternative and online news organizations to receive fee waivers, Townsend argued that “it’s important to ensure there’s room for startups” and freelance journalists who are just beginning their professional career. She said that FOIA requesters should not have to prove that they have a certain number of readers in order to qualify for reduced fees.
As the Reporters Committee’s brief points out, when the 2007 FOIA amendments were introduced in Congress Senator Leahy said they were meant to “protect the public’s right to know, by ensuring that anyone who gathers information to inform the public, including freelance journalists and bloggers, may seek a fee waiver when they request information under FOIA.”
The Reporters Committee was joined in its amicus brief by the First Amendment Coalition, the Investigative Reporting Workshop at American University, the National Press Photographers Association, National Public Radio, North Jersey Media Group, The Seattle Times, Stephens Media, and the Washington Post.
During the government’s argument, Chief Judge Garland questioned the FTC about its failure to examine the articles cited by COA in its FOIA requests showing it exercised editorial skill and that material it created was used by news organizations. The Chief Judge even pulled up one of the articles on his courtroom laptop, and challenged the government to explain why it did not show that COA’s history showed it should qualify for a fee waiver.
One issue that may ultimately determine the outcome of the case is whether an agency may refuse to honor a FOIA request that is either duplicative or closely related to a previous FOIA request. COA’s third FOIA request in this case was not fully responded to by the FTC because the agency claimed that it was the same as a previous FOIA request. However, in that previous FOIA request the FTC did not produce all of the responsive records to COA because of the contested fee waiver issue. COA argued that the FTC could not use its failure to process all parts of a FOIA request as a basis for failing to grant a fee waiver, and the court of appeals may ultimately remand to the district court on that issue.