Shall I compare thee to a newspaper?

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 non-profit 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. Its opinion suggests that as long as the requester seeks information that will significantly help an interested segment of the public understand what the government is doing, and that information is somehow disseminated online, the requester should be given a fee waiver as long as the request is not primarily in their commercial interest.

Who qualifies as a representative of the news media under FOIA?

The second issue addressed by the court concerns the standard that a requester must meet in order to qualify as a “representative of the news media” for fee purposes under FOIA.

If a requester is categorized as a representative of the news media, only duplication fees may be charged by an agency when responding to a FOIA request.

That category, and the corresponding fee provisions, were added to FOIA by Congress in 1986. But Congress did not specify exactly who would qualify as a member of the news media, instead leaving the definition of the term to the Office of Management and Budget.

In 1987, OMB promulgated guidelines that defined a “representative of the news media” as, in part, “any person actively gathering news for an entity that is organized and operated to publish or broadcast news to the public.”

In 2007, Congress further amended FOIA to include an express definition of “representative of the news media.” In so doing, it adopted language from an earlier, influential D.C. Circuit opinion that considered whether the National Security Archives, a Washington D.C.-based organization, qualified for that fee categorization.

The 2007 amendments, which remain in force today, state that a “representative of the news media” is defined as “any 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.”

They also state that “as methods of news delivery evolve (for example, the adoption of the electronic dissemination of newspapers through telecommunications services), such alternative media shall be considered to be news-media entities.”

OMB has not updated its guidelines to reflect the 2007 amendments to FOIA, a phenomenon that is seen throughout the federal government. A study conducted by the National Security Archives in 2014 found that nearly half of all federal agencies had not updated their FOIA regulations to comply with the 2007 statutory changes.

The FTC regulations at the time COA’s FOIA requests were made still included the “organized and operated” language from OMB. Fortunately, the court’s opinion in COA v. FTC confirmed that this requirement is defunct and should have no impact on how FOIA requesters are treated. This aspect of the opinion has significant implications for many other federal agencies that have yet to update their regulations and still rely on the old OMB guidelines.

Based on the 2007 Congressional amendments, the D.C. Circuit laid out the five elements of the criteria that a requester must satisfy in order to qualify as a representative of the news media. It must: (1) gather information of potential interest (2) to a segment of the public; (3) use its editorial skills to turn the raw materials into a distinct work; and (4) distribute that work (5) to an audience.

Before diving into the specific requirements, however, the court noted that these criteria apply only to the requester, not the nature of the materials that are requested. For example, the court said, a newspaper reporter “is a representative of the news media regardless of how much interest there is in the story for which he or she is requesting information.”

The court’s reasoning suggests that once an individual or organization has established itself as a representative of the news media it should almost always be accorded such status. In other words, if a requester satisfies the five criteria listed above “as a general matter, it does not matter whether any of the individual FOIA requests does so.”

With regard to the third requirement — that the requester uses its editorial skills to turn the raw materials into a district work — the court noted that this can happen in several different ways that need not necessarily amount to a traditional news article. For example, the requester can issue a “substantive press release” on the records it obtained. They can also provide editorial comment “to other outlets about documents it obtains under FOIA.”

In satisfying this requirement there is no need for the requester to use information from a range of sources. Indeed, the court noted that “nothing in principle prevents a journalist from producing ‘distinct work’ that is based exclusively on documents obtained through FOIA.”

On the fourth and fifth requirements, the court offered some of its most expansive views (and its strongest rebukes to the government) on what constitutes distributing work to an audience in the digital age.

Recognizing the changes in technology and information distribution since its last consideration of these questions, the court held that “posting content to a public website can qualify as a means of distributing it — notwithstanding that readers have to affirmatively access the content, rather than have it delivered to their doorsteps or beamed into their homes unbidden.”

In other words, the meaning of “distribute” does not mean that a representative of the news media has to affirmatively push stories to their audience. As long as they have a means for the public to access the information, including Internet-based access options, that should suffice.

This comports with arguments made by the Reporters Committee, which pointed out that traditional newspapers remain representatives of the news media even when publishing something only on their websites.

In terms of how big the audience has to be that accesses the information, the court simply stated that there must be an audience, but “beyond requiring that a person or entity have readers (or listeners or viewers), the statute does not specify what size the audience must be.”

Under the standard set out by the court, new organizations can qualify as a representative of the news media even if they don’t have an established track record of publication. Although a “bare statement of intent” to publish is not enough to get a media categorization, it is sufficient if the person or organization has “firm plans” to distribute the work to an audience.

This part of the opinion has two important implications for those seeking to establish themselves as a representative of the news media for fee purposes under FOIA. For organizations “with an extensive record” of dissemination, there need only be the barest assertion of their plans for the records. In fact it is possible, as the Court stated, that an established outlet need not disclose any plans for the information.

On the other hand, a nascent journalist or organization with no track record should only have to set out concrete plans to disseminate the information in order to qualify. Presumably organizations somewhere in the middle could satisfy the requirements by including examples of both their past activities and future plans.

Cheaper access to public information in the digital age

Because agencies are slow to update their regulations and internal practices, requesters may want to consider citing Cause of Action v. FTC when making requests and administrative appeals. With this guidance it is clear that new and emerging organizations, as well as those that primarily exist online, have a much lower burden when seeking recognition as a member of the news media and fee waivers for FOIA requests.