FOIA Fee Waivers Protected

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit unanimously protected the Freedom of Information Act’s (FOIA) public interest fee waiver and news media fee classification, preventing federal agencies from using fees as a weapon against public access to government information.

Cause of Action, an advocacy group promoting transparency and accountability, submitted a FOIA request to the Federal Trade Commission about changes to “product-endorsement guides” and “documents concerning the FTC’s history of granting public-interest fee waivers.” The FTC categorized Cause of Action as commercial and refused to grant its request for a public interest fee waiver or, in the alternative, to be classified as a member of the media. Cause of Action then filed a lawsuit.

The district court agreed with the FTC’s FOIA policy, and Cause of Action appealed the district court ruling. The U.S. Court of Appeals for the D.C. Circuit overturned the district court decision and remanded the case to the trial court with new criteria for interpreting FOIA.

Cause of Action primarily wanted to receive a public interest fee waiver, which would waive all fees associated with its FOIA requests. The district court found Cause of Action needed to reach a “wide audience” to receive a public interest waiver, but the appellate court disagreed. In fact, according to the appellate court, “there is nothing in the statute that specifies the number of outlets a requester” needs to reach “to contribute significantly to the public understanding.”

The D.C. Circuit Court also cited a Second Circuit ruling that stated organizations only need to reach “a reasonably broad audience of persons interested in the subject” to be in the public interest. The type and number of outlets the requested information would reach are irrelevant.

The appellate court also found that the FTC was wrong to deny Cause of Action a public interest waiver concerning the FTC’s policy regarding FOIA waivers. The FTC argued that because Cause of Action would be the “primary beneficiary,” it could not be in the public interest category. However, the court ruled that FOIA requests only need to “enlighten more than just the individual requester.” It also ruled that the request was not for commercial gain because it did not increase Cause of Action’s “commerce, trade, or profit.”

If its request did not meet the requirements for a public interest waiver, Cause of Action had asked to be classified as a member of the news media. Unlike the public interest category, agencies may charge organizations categorized as news media duplication costs for documents over 100 pages. The appellate court defined “news media” as a “person or entity” who “gathers information” to create “a distinct work” for distribution to an audience. It also said entities who only partner with media to disseminate information are also news media.

The appellate court ruled that the media category focuses “on the nature of the requester, not its request.” Once an organization is categorized as news media, it should continue to be classified as such regardless of the content of its FOIA requests.

Additionally, organizations only need to show a “firm plan” to make information available to the public. They do not need to actively disseminate this information.

The FOIA protections reaffirmed by the appellate court came soon after an important case involving the Transactional Records Access Clearinghouse (TRAC), which submitted a FOIA request for three Immigration and Customs Enforcement (ICE) databases and “broader electronic data maintained by U.S. Customs and Border Protection.”

In its ruling on TRAC, the U.S. District Court of D.C. stated that if organizations establish that they “intend and have the ability to disseminate new research to the public,” than they are news media. This ruling also supports the decision in Cause of Action v. FTC establishing that a news media organization can remain classified as such in perpetuity unless it changes “its research activities in the future.”

The Project On Government Oversight frequently advocates reforming FOIA’s fee waivers. In a 2011 public comment on FOIA, POGO, along with Public Citizen, criticized the chilling effect fees have upon requesters, and in 2014 POGO asked Congress to reform FOIA fees by supporting the FOIA Improvement Act.

Ultimately, the court decisions in favor of Cause of Action and TRAC will make it easier for traditional and non-traditional media and public interest organizations, like POGO, to receive FOIA fee waivers. As a result, more information will be disseminated to the public, increasing government transparency and accountability.