As the Freedom of Information Act approaches its 50th birthday next year, a major advocacy effort continues to push important reforms in Congress. But Capitol Hill isn’t the only place where FOIA’s future is being forged. Two federal appeals courts recently handed down opinions that clarify and affirm the rights of requestors and the responsibilities of agencies—one of them with particular importance for groups that plan to release publicly the information they gather.
That case comes from the DC Circuit, which in late August handed down an opinion that has big implications for advocacy groups and nontraditional publishers, increasing their chances of successfully claiming FOIA fee waivers. The case arose after Cause of Action, a conservative nonprofit organization, submitted three FOIA requests to the Federal Trade Commission, which denied the nonprofit’s fee-waiver claims.
The FOIA permits agencies to charge reasonable fees for “document search, duplication, and review, when records are requested for commercial use.” Depending on the request, these fees can be substantial. But certain types of requests and requesters are entitled to fee waivers, and two were at issue in this case.
First, agencies must waive or reduce fees “if disclosure of the [requested] information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.”
Second, agencies may charge only for duplication costs “when [the requested] records are not sought for commercial use and the request is made by … a representative of the news media.”
Cause of Action claimed fee waivers under both categories, and ultimately the circuit court clarified what requesters must do to claim each one.
To begin, the court held that when evaluating the “public understanding” element of the public-interest waiver, what matters is “whether the requester will disseminate the disclosed records to a reasonably broad audience of persons interested in the subject.” It’s not necessary for a requester to reach a wide general audience.
Then, the court turned to the “news media” fee waiver, trying to define who qualifies for it. The court focused on the OPEN Government Act, which amended the FOIA in 2007. It defines a “news media” representative 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.”
Significantly, the DC Circuit said that the “audience” reference “contemplates that the work is distributed to more than a single person”—but otherwise, size is irrelevant. Similarly, it’s fine for a startup organization to claim the “news media” waiver as long as it has “firm plans” to distribute the work. As the court said, “[T]here is no indication that Congress meant to make the lack of a prior publication record disqualifying.”
The court concluded:
The news-media provision requires a fact-based determination of whether a particular requester’s description of its past record, current operations, and future plans jointly suffice to qualify it as a representative of the news media. For a requester that serves (or plans to serve) the public through multiple outlets … those must be considered in combination. An entity with an extensive record will ordinarily qualify with only a thin recital of its plans (or perhaps none at all). Conversely, an entity with little or no historical record of distributing its work … may make up for that absence by concretely setting out its plans to do so.
That’s very helpful language for nontraditional publishers.
‘Summary statistics’ not good enough
The second court decision, a week later, is not as tailored to the interests of publishers. But it draws on an important earlier ruling involving the media, and the benefits it provides for requestors will be shared by journalists.
In that case, the Seventh Circuit ruled that Citizenship and Immigration Services, the federal agency responsible for issuing H-1B visas, failed to comply with the FOIA because it had conducted an inadequate search for records. At issue was whether an agency can legally respond to a request by providing information, or whether it must actually hand over preexisting records.
The case began when retired immigration lawyer David Rubman submitted a FOIA request seeking “copies of all documents reflecting statistics … about H-1B visa applications” for the past four years. CIS released a single document, a table created in response to the request. Rubman doubted its accuracy and demanded that the agency release internal reports and e-mails. When CIS refused and said more releases would “only create additional confusion,” Rubman sued.
For a search to be adequate, according to federal case law, the agency “must show that it made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.” Rubman argued that CIS’s search was inadequate because it didn’t include the type of records he requested: He wanted preexisting “documents reflecting statistics,” but the agency released what the court called “newly generated summary statistics.”
The Seventh Circuit, quoting from the 1989 Supreme Court case DOJ v. Reporters Comm. for Freedom of the Press, said “the idea that a FOIA request for ‘documents’ refers … to preexisting internal records is not only most consistent with the broad scope of the records that are subject to FOIA, it’s also most in line with FOIA’s purpose of showing requesters ‘what their government is up to.’”
The court went on to say that a preexisting document “enjoys marks of authenticity and accuracy that are absent from one generated by a FOIA officer,” and that a preexisting document “foster[s] transparency by revealing … something about the way the agency operates.” Concluding that the “context-free … table of indeterminate origin released to Rubman furthered none of these policy goals,” the circuit court ruled that CIS failed to conduct an adequate search.
The implications are at least twofold: One, the decision will force CIS to be more transparent about its approval process for H-1B visas, a process notoriously difficult to learn about, even during discovery in removal proceedings. Two, the decision makes clear that an agency must search for the types of records you request (a good thing because you don’t always know what exists or exactly which records are responsive), and the government may not simply release one record and deem the rest “too confusing” to release.
Something worth selling
The Seventh and DC Circuit decisions came down against the background of renewed efforts in Congress to reform the FOIA. House and Senate bills were introduced in February 2015, nearly identical to each other and to the FOIA reform bills that died last year. (See CJR’s earlier coverage.)
The bills’ supporters, a bipartisan coalition of dozens of lawmakers, along with groups like the Reporters Committee and the Society of Professional Journalists, are using the FOIA’s 50th birthday, next year, to set the hook and generate public interest. They’re tweeting with the hashtag #FixFOIAby50, and they have something worth selling.
Among other things, the bills would endow the Office of Government Information Services, the FOIA ombudsman, with greater independence, freeing the office from its obligation to consult the Office of Management and Budget before publicizing its recommendations for improving the FOIA; require agencies to accept FOIA requests by email; and direct that future administrations operate from a presumption of openness when responding to FOIA requests. These reforms would build on the recent developments in the courts.
“Along with the First Amendment, FOIA truly stands as one of the pillars of American democracy,” said Adam Marshall, a legal fellow at the Reporters Committee for Freedom of the Press, one of the progenitors of the “Fix FOIA by 50” movement. “[The reform] measures would be the first changes to FOIA since 2007, and are designed to ensure it remains a meaningful tool for journalists and the public. They would fix some of the most distressing obstacles that currently plague requesters and rectify structural deficiencies that prevent robust evaluations of the government’s performance.”
The bills are awaiting floor votes in the House and Senate.
Jonathan Peters is CJR’s press freedom correspondent. He is a media law professor at the University of Georgia, with posts in the Grady College of Journalism and Mass Communication and the School of Law. Peters has blogged on free expression for the Harvard Law & Policy Review, and he has written for Esquire, The Atlantic, Sports Illustrated, Slate, The Nation, Wired, and PBS. Follow him on Twitter @jonathanwpeters.