WMATA lawyers incorrectly read the laws in 2009 to declare Greater Greater Washington, and other blogs, not part of the news media. Today, they reiterated this incorrect interpretation in response to a PARP request (their version of FOIA) from Michael Perkins.
The “news media” does not have to pay fees when they request information via PARP for news stories. Michael was asking for information about the riders’ survey which WMATA used to design the fare increase this year. WMATA legal staff asked for a fee of $261 to provide the information, and denied his request to waive the fee for the news media.
We’d like to pursue appealing this ruling. Are there any lawyers who can help us out pro bono?
As Michael explained 3 years ago, WMATA is basing this decision on a 2 DC district court cases, Judicial Watch, Inc. v. United States Department of Justice and Electronic Privacy Information Center v. Department of Defense, where courts denied “news media” status to these organizations in 2000, 2002 and 2003.
WMATA’s Public Access to Records Policy (PARP) says that it follows the federal FOIA, meaning that this law clarifying FOIA also applies to WMATA’s PARP.
The WMATA denial, which just copies the previous one from 2009, claims that, “A representative of the news media must itself disseminate the information not merely make it available.”
But, as Michael Perkins notes, the Open Government Act of 2007 clarified a broader interpretation of “news media” 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.
These examples [newspapers and broadcast radio or television] 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.
Greater Greater Washington “disseminates” information via the web, email, Twitter and other means. Some people, like the subscribers to our daily email, do get it “delivered” directly (though electronically), while others request the information via the web. Newspapers today also do the same; some people get a copy on their doorstep, others get a daily email, while others go to the website.
Back in 2009, the media relations team wasn’t sure they should talk to blogs such as Greater Greater Washington, but since then, that group has started to treat us as “news media” and help answer questions that will go into articles. Perhaps they should speak with the legal department.
If you can help us formulate a more detailed legal argument to make to WMATA and, if they don’t see the light, pursue the matter in the courts, please email email@example.com.
Here is the full text of their email from Keysia Thom at WMATA:
Dear Mr. Perkins,
This acknowledges receipt of your request for a copy of the survey, results, and weights used by the JCC to determine the fare model for the Metrorail rider survey. This also responds to your request for a fee waiver and requires an advance payment by May 16, or your request file will be closed. Your request is being processed pursuant to the Public Access to Records Policy (PARP), which can be viewed on our website at http://www.wmata.com/about_metro/public_rr.cfm, under the section marked, “Legal Affairs.” Generally, we aim to issue decisions on a request for records within 20 working days after the date of receipt of the request.
We note that you requested a fee waiver for search time because you are an author for Greater Greater Washington. Pursuant to federal regulations, a representative of the news media is any person actively gathering news for an entity that is organized and operated to publish or broadcast news to the public. 28 C.F.R. § 16.11 (b)(6) (2012). Examples include television and radio stations broadcasting to the general public, publishers of periodicals that disseminate news to the general public, and freelance journalists who can demonstrate a solid basis of publication through a news organization. Judicial Watch v. United States Dep’t of Justice, No. 99-2315, 2000 U.S. Dist. LEXIS 19789 *9-12 (D.D.C. August 17, 2000). Your request consists of a conclusory statement that you are a member of the news media, but does not provide any details about your editorial skills and how you intend to distribute the records to the public at large. We have viewed Greater Greater Washington’s website and it appears to be a blog. Judicial Watch, an organization that promotes transparency in government and operates a website that includes news on that topic and its activities (including those reported by the media), has been found not to qualify as a representative of the news media. Judicial Watch v. United States Dep’t of Justice, No. 99-2315, 2000 U.S. Dist. LEXIS 19789 *9-12 (D.D.C. August 17, 2000). A representative of the news media must itself disseminate the information not merely make it available. Judicial Watch, Inc. v. United States Dept of Justice, 185 F.Supp. 2d 54, 59 (D.D.C. 2002). For these reasons we have denied your request for a fee waiver under the media category.
We estimate that it will cost $261.00 for 3.0 (5 hours of staff time - the first two hours of staff time, which are provided free of charge) to retrieve and review the records that are responsive to your request for exempt material. Please remit a check for the full amount made payable to the Washington Metropolitan Area Transit Authority to my attention by May 16, 2012. The records will be provided as soon as possible after receipt of payment, along with reimbursement of any excess payment or request for additional payment. If we do not receive the payment by May 16, we will close your request file.