Cybertelecom Federal Internet Law & Policy An Educational Project

Notes :: FOIA

NB: This is not a website dedicated to FOIA; we do not track it closely. These notes constitute a loose tracking of civil procedure caselaw based on opinions read relevant to Internet law subjectmatter. In other words, it is what it is (just like everything on this site).

Appeal

In a case involving review of an agency determination under FOIA, the standard set forth in Rule 56(c) of the Federal Rules of Civil Procedure does not apply because of the limited role of a court in reviewing the record before the agency. This Court will apply a de novo standard of review to the agency's FOIA fee-category determination, looking only at the record before the agency. See Elec. Privacy Info. Ctr. v. Dep't of Def., 241 F. Supp. 2d 5, 9 (D.D.C. 2003) ("The statutory language, judicial authority, and . . . legislative history thus support the view that determinations regarding preferred fee status are reviewed de novo."); see also 5 U.S.C. § 552(a)(4)(A)(vii) ("In any action by a requester regarding the waiver of fees under this section, the court shall determine the matter de novo: Provided, That the court's review of the matter shall be limited to the record before the agency."). -- Center for Public Integrity v US Dept of Health and Human Services, Civil Action No. 06-1818 (JDB) (DCDC August 3, 2007)

Fee Determination

News Organization

Rule

Federal regulations implementing FOIA provide some guidance with respect to the meaning of the term "representative of the news media." Although the FOIA statute does not itself provide a definition of the phrase, it does require agencies to promulgate regulations establishing guidelines for fee determinations in conformance with the uniform guidelines issued by the Office of Management and Budget ("OMB"). § 552(4)(A)(i). The OMB uniform guidelines define "representative of the news media" as "any person actively gathering news for an entity that is organized and operated to publish or broadcast news to the public." Uniform Freedom of Information Act Fee Schedule Guidelines, 52 Fed. Reg. 10,012, 10,018 (Mar. 27, 1987). OMB's comments to the uniform guidelines further explain that "news media" should be limited to "purveyors of information that is current or would be of current interest" and that publishing or broadcasting news "implies something more than merely 'making information available.'" Id. at 10,015. Instead, the "news media perform an active rather than a passive role in dissemination. Thus, they can be distinguished, for example, from an entity such as a library which stores information and makes it available on demand." Id. HHS's regulations provide a definition of "representative of the news media" that is essentially identical to the one in the uniform guidelines. See 45 C.F.R. § 5.5 (defining term as "a person actively gathering information for an entity organized and operated to publish or broadcast news to the public").
       The D.C. Circuit has elaborated on the meaning of "representative of the news media" for purposes of FOIA. After extensively consulting relevant legislative history, the court of appeals in Nat'l Sec. Archive v. Dep't of Defense, 880 F.2d 1381 (D.C. Cir. 1989), held that "[a] representative of the news media is, in essence, 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." Id. at 1387. The court made clear that a private library or repository of information would not fall within this definition; nor would middlemen (alternatively referred to as "information vendors" or "data brokers") who request documents on behalf of specific parties. See id.

Published Compilations

         The facts of Nat'l Sec. Archive are also illustrative. The plaintiff National Security Archive requested information from the Department of Defense in order to publish what it called "document sets" -- compilations of documents relating to particular areas of current interest, supplemented with "'detailed cross-referenced indices, other findings aids, and a sophisticated computerized retrieval system' in order to make [the compilation] more accessible to potential users." Id. at 1386. The court of appeals observed that the document sets went beyond merely making information available -- an activity that would be "insufficient to establish an entitlement to preferred status" -- and instead "entail[ed] the kind of initiative we associate with 'publishing or otherwise disseminating' that information," activities that would qualify for preferred fee status. Id. In particular, the Archive, in compiling its document sets, "gathers information from a variety of sources; exercises a significant degree of editorial discretion in deciding what documents to use and how to organize them; devises indices and finding aids; and distributes the resulting work to the public." Id. at 1387. Although the court did not want to "suggest[] that any one of these activities is either necessary or sufficient for a person or organization to be a 'representative of the news media,'" it concluded that "an organization that engages in all of them" would fall within that category. Id. -- Center for Public Integrity v US Dept of Health and Human Services, Civil Action No. 06-1818 (JDB) (DCDC August 3, 2007)

Blogs / Websites

CPI falls within FOIA's definition of "representative of the news media." Each of CPI's six original FOIA requests explained that the information it was seeking would "serve as the basis for several press releases and articles" similar in nature to previous stories that CPI had written and distributed concerning matters such as the "'Lincoln Bedroom' scandal under the Clinton administration," "President Bush's sale of Harken stock and Vice President Cheney's connections to the Halliburton Corporation." Dec. 21, 2005 FOIA Requests at 2, 6, 10, 14, 18; Feb. 14, 2006 FOIA Request at 2. CPI also indicated that it was comprised of "investigative journalists" who "write and post an online newsletter" called The Public i, and that the information sought in the FOIA requests would be posted to that newsletter. Id. Furthermore, as part of its administrative appeal, CPI submitted a list of its past publications that had garnered various awards. Def.'s Mot. for Summ. J. Ex. F at 3-7. This information pertaining to CPI's activities, which was part of the record before the agency,3 is sufficient to qualify CPI as a representative of the news media under the HHS and OMB regulations -- CPI has taken, and will continue to take, an active role in disseminating information of current interest to the public. CPI's activities also meet the D.C. Circuit's interpretation of "representative of the news media" because they demonstrate that CPI, in its newsletter, press releases, and other articles, "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." Nat'l Sec. Archive, 880 F.2d at 1387.-- Center for Public Integrity v US Dept of Health and Human Services, Civil Action No. 06-1818, Slip at 8 (JDB) (DCDC August 3, 2007)