Magazine article The News Media and the Law (Online)

Shall I Compare Thee to a Newspaper?

Magazine article The News Media and the Law (Online)

Shall I Compare Thee to a Newspaper?

Article excerpt

Last week the D.C. Circuit released its opinion in Cause of Action v. FTC, a Freedom of Information Act case that will have far-reaching and beneficial implications for journalists and organizations seeking fee waivers and reductions when making records requests.

The Reporters Committee for Freedom of the Press, joined by eight other news media organizations, filed an amicus brief in support of the requester and participated in oral arguments before the court.

At issue in the case was the Federal Trade Commission's determination that Cause of Action, a recently formed nonprofit organization, did not qualify for either a fee waiver or a fee reduction as a member of the news media for its FOIA requests sent in the weeks and months after its creation.

While the district court agreed with the FTC, the Court of Appeals did not. Its sweeping opinion makes clear that both the government and the court below failed to take into account statutory changes to FOIA and the changing nature of news dissemination in the digital age.

Although the full opinion is rather lengthy, there are two major aspects that journalists and news organizations should know.

Who is entitled to a public interest fee waiver under FOIA?

The court first clarified the standards that apply when a FOIA requester seeks a public interest fee waiver. If a requester is granted such a waiver then the agency cannot charge them any fees for processing the request or providing the records.

To qualify for such a fee waiver under FOIA, the requested information must: (1) shed light on the operations or activities of the government; (2) be likely to contribute significantly to public understanding of those operations or activities; and (3) not be primarily in the commercial interest of the requester.

The FTC, like every other federal agency, promulgates regulations interpreting statutes it administers, including FOIA. These regulations are designed to provide additional guidance and procedural rules for processing FOIA requests. However, unlike other statutes agencies are charged with implementing, courts do not give any deference to agency regulations that interpret FOIA.

In COA's case, the FTC regulations in place at the time stated that in order to be granted a fee waiver, the requested documents had to "increase understanding of the public at large". This requirement was rejected by the Court of Appeals, noting it imposed a higher burden than the statute specified.

Instead, the Court said that a proper application of the "public understanding" requirement requires an examination of two different dimensions. First, agencies and courts should look to "the degree to which 'understanding' of government activities will be advanced by seeing the information." Second, they must examine the "extent of the 'public' that the information is likely to reach."

On the second dimension, the Court stated that FOIA does not require a requester to reach a "wide audience." Rather, the proper question "is whether the requester will disseminate the disclosed records to a reasonably broad audience of persons interested in the subject."

In determining whether a requester has the capacity to disseminate such information, the court stated that there is no requirement, as the district court held, that the requester identify multiple publishing avenues to qualify for a fee waiver. Indeed, recognizing the importance of online publishing, it suggested that merely having a website is a sufficient means of dissemination.

"There is nothing in the statute that specifies the number of outlets a requester must have, and surely a newspaper is not disqualified if it forsakes newsprint for (or never had anything but) a website," the court held.

The court's clarifications are a welcome confirmation that fee waivers should be liberally awarded by agencies to persons and organizations that disseminate such information to the public. …

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