WMATA says blogs aren’t news media

Are blogs journalism? This perennial question generates heated debate around reporter shield laws, press passes, and the Freedom of Information Act. Most non-lawyers would say that some blogs are definitely media (like the NY Times’ City Room), and some blogs are really not (like your friend’s LiveJournal about what he eats for breakfast each day). The Federal Election Commission says blogs are media.

But WMATA’s lawyers think blogs definitely aren’t news media, even blogs like Greater Greater Washington. Why? Because they claim we don’t “publish or broadcast news to the public.” To WMATA’s lawyers, “publish” means “disseminate the information, not merely make it available,” citing Judicial Watch, Inc. v. United States Department of Justice, 185 F.Supp. 2d 54, 59 (D.D.C. 2002), and “disseminate” requires more than simply posting information on a Web site where many people go to read about newsworthy information.

WMATA’s Public Access to Records Policy (PARP), their equivalent of FOIA, lets news media (among others) receive a waiver from having to pay for copying of records. GGW contributor Michael P filed some PARP requests for various WMATA records, and asked for the fee waiver on the grounds that he publishes articles on Greater Greater Washington and Infosnack.org; WMATA denied the request.

Congress seems to disagree with WMATA’s lawyers. Last December, Congress amended the federal FOIA law to broaden the definition of “news media”:

[T]he term ‘a representative of the news media’ means 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. In this clause, the term ‘news’ means information that is about current events or that would be of current interest to the public. Examples of news-media entities are television or radio stations broadcasting to the public at large and publishers of periodicals (but only if such entities qualify as disseminators of ‘news’) who make their products available for purchase by or subscription by or free distribution to the general public. These examples are not all-inclusive. Moreover, 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.

I am not a lawyer, but I’d point out that publishers of periodicals count even if they just “make their products available for purchase by” the public, and for “free distribution.” It seems making available for free download would fall within at least the intent of this clause. And the last part of the statute clarifies Congress’ intent to include new technologies. Just because a blog reaches people through their Web browsers and RSS readers instead of “sending” something shouldn’t matter, and under Congress’ definition, probably doesn’t. (On top of that, this blog does actually directly send content to subscribers, for those who sign up for email delivery.)

So has a court said, unequivocally, that a blog that publishes news electronically counts as “news media”? Not yet, says the EFF:

The question of whether or when a blogger would qualify as a journalist for FOIA purposes based solely on his or her blog work has not yet been addressed. However, the FOIA makes it clear that alternative media and freelance journalists can qualify as representatives of the news media for fee purposes. If you plan to publish information on your blog based on the records you are seeking, you should note as much in your FOIA request and ask for a fee waiver/reduction. You may or may not succeed, but there’s no harm in trying. If you are denied, you may file suit in federal court to challenge the denial.

I don’t know if Congress’ statute specifically changes WMATA’s PARP as well, but since their lawyers cited a FOIA case instead of a PARP case in their denial, Congress’ intent in defining “news media” seems extremely relevant.

The Judicial Watch case is also not quite the same as our situation; the District of DC decided Judicial Watch wasn’t a member of the media because “Judicial Watch does not characterize itself as an entity engaged in the broadcast and publication of news but rather as a non-profit public interest law firm … the Court concludes that plaintiff is at best a type of middleman or vendor of information that representatives of the news media can utilize when appropriate.” Greater Greater Washington’s and Infosnack’s readers are mostly members of the public, not primarily journalists, and I do characterize GGW as an entity engaged in the broadcast and publication of news.

Know any attorneys interested in a pro-bono case to clarify that blogs count as news media for FOIA and PARP purposes?