by Matthew L. Schafer
The Department of Justice is refusing to follow its own interpretation of the Freedom of Information Act (“FOIA”) by declining to grant fee waiver requests to independent journalists and bloggers. This comes despite Congress’s intent to make such fee waivers available to journalists who do not fit neatly into the traditional definition of a journalist.
In 1966, Congress passed the FOIA in order to give citizens a right of access to information about how their government works or, for that matter, does not work.
As a Senate committee report on the FOIA said, “The committee feels that [the FOIA] would establish a much-needed policy of disclosure . . . . A government by secrecy benefits no one. It injures the people it seeks to serve . . . . It breeds mistrust, dampens the fervor of citizens, and mocks their loyalty.”
On signing the bill into law, President Lyndon Johnson agreed, at least in writing, with the Senate committee, writing, “This legislation springs from one of our most essential principles: A democracy works best when the people have all the information that the security of the Nation permits. No one should be able to pull curtains of secrecy around decisions which can be revealed without injury to the public interest.”
Since its passage in 1966, the FOIA “has become a cornerstone of American democracy, making it possible for Americans to find out what their government is doing and to hold it accountable for its actions.”
Unfortunately, many think that the FOIA is broken. These opinions spring from a variety of perceived deficiencies. One of the most glaring deficiencies, however, comes from the fees that agencies charge citizens who request information.
Normally, agencies charge requesters for costs of searching and duplicating documents. These costs can be in the hundreds and thousands of dollars. Because Congress was concerned that these costs may dissuade citizens from taking advantage of the FOIA, it decided to provide certain fee waivers. Thus, in 1986, Congress amended the FOIA, directing agencies to waive fees for a search of responsive documents when “a representative of the news media” makes a request.
Senator Patrick Leahy, who along with a colleague in 1986, offered the amendment modifying fee waivers, explained that “[i]t is critical that the phrase ‘representative of the news media’ be broadly interpreted if the act is to work as expected.” Indeed, with the rise of telecommunications and digital communications in the 1980s, Congress was concerned that agencies would deny fee waivers to new forms of media.
As the Senator explicitly acknowledged, “As new technologies expand, there are new methods of communications which disseminate information to people through media other than traditional print or broadcast media, and these entities should be considered as ‘representatives of the news media.”
Unfortunately, the 1986 amendments to the FOIA did not define the term of “representative of the news media.” That task was left to the Office of Management and Budget (“OMB”). The OMB adopted a relatively restrictive definition of “representative of the news media”: “The term ‘representative of the news media’ refers to any person actively gathering news for an entity that is organized and operated to publish or broadcast news to the public.”
This definition effectively made it impossible for independent journalists to receive fee waivers, leaving them subject to the prohibitive fees that the amendments intend to assuage, because they did not work “for an entity.”
Realizing this, in 2007, Congress again attempted to make fee waivers available to more people under the “representative of the news media” with the passage of the Open Government Act. That Act did not adopt the OMB’s definition of “representative of the news media” as “any person actively gathering news for an entity.”
Instead, it changed the language to read: “In this clause, the term ‘a representative of the news media’ means any person or entity that gathers information.” No longer then was a representative of the news media required to work for an entity; instead, any person or entity could qualify, which made fee waivers available to independent journalists.
At the time, the Act’s sponsor, Senator Leahy explained on the floor, “The bill ensures that Federal agencies will not automatically exclude Internet blogs and other Web-based forms of media when deciding whether to waive FOIA fees.”
Senator Cornyn, a co-sponsor of the Act, felt the same way: “[The Act] grants the same privileged FOIA fee status currently enjoyed by traditional media outlets to bloggers and others who publish reports on the Internet.”
The DoJ protested the 2007 changes. In a letter to Senator Leahy, then Acting Assistant Attorney General Richard A. Hertling acknowledged that “Section 3 of the legislation, titled ‘Protection of Fee Status for News Media,’ expands the definition of ‘representative of the news media.’”
Mr. Hertling also admitted that the Act’s amendments were intended to extend fee waivers to bloggers: “Section 3 of the legislation amends subclause (II) so that an agency ‘may not deny [to a representative of the news media] status solely on the basis of the absence of institutional associations of the requester, but shall consider the prior publication history of the requester’ including Internet publications.”
Guided by an understanding of the plain language of the amended FOIA, scholars agreed with the DoJ’s assessment of the changes to FOIA: “The Act opens the definition of news media to apply to bloggers and [I]nternet journalists who are not associated with a media institution.”
That was then. Since the Act was passed, at least one DoJ division has asserted that the change of the law actually affected no change to the law. In a recent request by Lippmann Would Roll for documents relating to subpoenas against the news media, the Civil Rights Division at the DoJ has refused to grant a fee waiver for a search of documents.
In the denial of fee waivers, the Civil Rights Division wrote that “current case law has not recognized blogs to constitute news media for purposes of a fee assessment.” And, for that reason, it did not grant the fee waiver request. An appeal is currently being drafted by LWR.
This denial is in direct conflict with the intent of Congress, and, more importantly, the plain language of the FOIA. As the Senate committee report on the FOIA amendments explained, “[The amendments] make clear that independent journalists are not barred from obtaining fee waivers solely because they lack an institutional affiliation with a recognized news media entity.”
Moreover, the denial conflicts with the Office of the Attorney General’s views of fee waiver requests by bloggers. At least in the case of LWR, the Office of the Attorney General agreed to grant a fee waiver to LWR in the past under the same circumstances as the request to the Civil Rights Division. The Civil Rights Division’s denial of these fees, then, are even inconsistent with the apparent policy of the Office of the Attorney General.
All that should matter when it comes to requests for fee waivers under the “representative of the news media” waiver is whether the requester is actually gathering and disseminating news related to the requests. Indeed, the history of waivers is one the bends toward a broad view on interpreting who qualifies as a representative of the news media.
DoJ divisions, as well as other government agencies, should begin to grant fee waivers consistent with the intent of Congress. If they do not, they are essentially gutting a valuable provision of the FOIA that is aimed at making more information about the government available to the new breed of journalists to share with citizens around the country.