‘Internet Publications’ May Get FOIA Fee Waivers

Terms in the bill could give agencies broad discretion over which online writers can qualify for fee waivers, though. A Leahy statement said “bloggers and other Internet- based journalists” would have “access” to the waivers, but some expressions in the bill aren’t defined, including “reasonably broad audience” and “Internet publications.”

The bill seeks to “restore some meaningful deadlines” on FOIA responses, Leahy said at a news conference, pointing to National Security Archive research that found FOIA requests that have been pending since 1989: “A lot has taken place since then and we'd like to know what the government is doing.” Cornyn called states like Tex. “tremendous laboratories” for open govt. initiatives, and he deplored “far too much classification” of govt. records. The GAO found 43% more outstanding requests in 2006 than 2002, probably because FOIA violations lack “real consequences,” Leahy said. S-849 counts as govt. documents records held by private contractors.

“Representatives of the news media” pay “reasonable standard charges” for document duplication only, whereas those seeking records for commercial use also pay charges for document search and review, under Title 5, Sec. 522. The Leahy-Cornyn bill said agencies can’t deny news-media status to applicants “solely on the basis of the absence of institutional associations.” Agencies must consider the person’s “prior publication history,” which includes “Internet publications” as well as print and broadcast media, the bill said. For those without a publication history, agencies must consider the person’s intent to distribute information to a “reasonably broad audience” -- perhaps an indication that publishing online, with a potentially limitless audience, won’t be an automatic basis for a waiver. We couldn’t reach sponsors’ aides for clarifications.

Bloggers we asked differed on how to interpret the fee- waiver section for their medium. RedState.com founder Mike Krempasky, a leader for hands-off Federal Election Commission rules on Internet politicking, said the Leahy-Cornyn bill “signals a very encouraging move… that citizen journalists are no less legitimate than their well-heeled counterparts at the major newspapers.” But Media Bloggers Assn. founder Robert Cox said the definitions in reporters’ shield legislation in recent years gave him pause when considering the new FOIA bill.

The Free Flow of Information Act introduced in both houses was designed to prevent bloggers from qualifying for protection, Cox said, although House and Senate sponsors gave us varying interpretations of which bloggers would be covered by the legislation (WID Oct 26/05 p1). Cox said his group warmed to the bill when it learned that the bill’s language was based on a Cal. Court of Appeal decision protecting Internet writers under the state shield law (WID May 30 p1), which said implicitly that “journalism has nothing to do with who writes your paycheck.” But the bill relies on other courts’ ruling the same as Cal.’s on vague terminology, Cox said.

Professional journalists and transparency groups haven’t spoken up for their online counterparts when their right to govt. information was stymied, Cox said. He cited a Me. blogger who beat a lawsuit by a subcontractor for the state tourism office (WID May 9 p8), then filed a FOIA request with the agency that went nowhere. But blogger Lance Dutton learned through an approved FOIA request to the agency’s IT dept., which responded by handing over backup tapes, that the agency had deleted more than 1,000 e-mails requested through FOIA, many “incriminating” -- showing collusion with the subcontractor, Cox said. State organizations, including the local Society of Professional Journalists, “have not shown a great deal of interest” in the attempted coverup, he added. - - Greg Piper