by Matthew L. Schafer
The OPEN Government Act of 2007 was passed to ensure that “anyone who gathers information to inform the public, including freelance journalist and bloggers, may seek a fee waiver when they request information under FOIA.”
Under the Freedom of Information Act, anyone can request information from the government. Depending on who requests the information, however, some requesters are given preferential treatment. Such treatment comes in a variety of forms, one of the most important being a waiver of fees if one is a “representative of the news media” for searching for and reviewing documents.
That term, “representatives of the news media,” was given an extremely narrow construction since the late 1980s, which required that a journalist show that he or she was working for an entity that was organized to disseminate news. As a result, Congress in 2007 attempted to broaden that definition to include all different types of journalists who are engaged in the function of gathering and disseminating news no matter if they have an institutional connection.
At the time, the Digital Media Law Project called the OPEN Government Act “striking” in that it would significantly “benefit bloggers and non-traditional journalists by making them eligible for reduced processing and duplication fees that are available to ‘representatives of the news media.’”
The Department of Justice was less than enthused by the Act. In fact, the DoJ vigorously opposed the Act. In the run up to its passage, the DoJ employed various adjectives like “grave,” “draconian,” and “misguided” to protest the Act’s provisions, including the provisions that were intended to give fee waivers to bloggers and independent journalists.
More specifically, the DoJ was concerned that discarding the institutional requirement would cause a flood of requesters to claim to be representatives of the news media because they had a some degree of demonstrable publication history or claimed that they intended to publish information resulting from the their FOIA request.
Moreover, the DoJ also worried that the Act, even where the requester showed no prior publication history, would require the DoJ to inquire into “the requestor’s stated intent at the time the request is made to distribute information to a reasonably broad audience,” which would eviscerate any limiting power the “representative of the news media” language once had.
In short, the DoJ was of the opinion that the Act expanded “the definition of ‘representative of the news media,’ and thereby exempts a larger class of requesters from the obligation to pay what can sometimes be quite significant fees assessed for searching for responsive documents.”
Despite the DoJ’s concerns, the Act passed. Nonetheless the DoJ has continued to ignore the Act’s provisions. In fact, the DoJ’s own Freedom of Information Act regulations still require that a requester show he or she is affiliated with a news organization to obtain a fee waiver.
Concerned by this fact, Reps. Darrell Issa and Elijah Cummings sent a letter to the DoJ, “[I]t is unknown whether agencies are complying with the Attorney General ‘s presumption of openness or the significant changes in fees and requester classes under the OPEN Government Act.”
The Representatives also noted, “[T]he OPEN Government Act broadens the types of requesters who may qualify for a fee waiver under FOIA. Unfortunately, not all agencies appear to be complying with FOIA’s fee requirements.”
In an about-face that would make even the best-flipflopper blush, the DoJ, now under the Obama administration, responded that the Act does not mean what the Act actually says it does and does not even mean what the DoJ said it meant at the time the Act was passed.
“As an initial matter, we respectfully note that it is not technically correct that, as your letter suggests, the OPEN Government Act ‘broadens the type of requesters who may qualify for a fee waiver under the FOIA,'” the DoJ said in response to the Representatives. “Rather, the OPEN Government Act codified the definition of ‘representative of the news media,’ which is a fee category.'”
Thus, on the one hand, the DoJ explained on passage of the Act that it “exempt[ed] a larger class of requesters.” On the other hand, the DoJ told Congress that the Act does not necessarily “broaden the type of requesters who may qualify.”
The fact of the matter – technicalities aside – is that nearly everyone agrees that the OPEN Government Act was intended to liberalize the fee waiver provisions relating to representatives of the news media. Unfortunately, bloggers and independent journalists are still being denied such waivers. This amounts to willful blindness.
The OPEN Government Act was passed with a lofty goal in mind – namely to “grant the same privileged FOIA fee status currently enjoyed by traditional media outlets to bloggers and others who publish reports on the Internet.” Congress tried to achieve this goal by defining for itself who was a “representative of the news media.” It is time for the DoJ recognize this by revising its own regulations and granting fee waivers to people engaged in the act of journalism under whatever banner.
 It could be possible that the DoJ is pointing out that the Act did not add another whole category of requesters. But, this is form over substance. The Act, as the DoJ has recognized elsewhere did expand the applicability of the fee waivers to a larger class of representatives of the news media, e.g., independent journalists.