The opinion of the court was delivered by: Robertson, District Judge.
Judicial Watch, Inc., self-anointed "representative of the news media"
and paladin for the public interest, seeks judicial review of the Justice
Department's denial of its application for a waiver of the fee provisions
of the Freedom of Information Act, 5 U.S.C. § 552 (a)(4)(A). Judicial
Watch demands that the Department of Justice conduct a free search for
materials related in any way to the "Decision(s) by Attorney General
Janet Reno, the Department of Justice, the Immigration and Naturalization
Service, and/or other persons and entities
to return Elian Gonzales to the custody of his biological father in Cuba"
— and that it provide free copies of what it finds.
Judicial Watch describes itself as a "non-profit, nonpartisan,
tax-exempt 501(c)(3) organization which as a public interest law firm
specializes in deterring, monitoring, uncovering, and addressing public
corruption in government." Judicial Watch has filed some thirty-three
lawsuits in this Court, at least twelve of them against the Department of
Justice. In this case, the co-director of DOJ's Office of Information
Processing determined that Judicial Watch was not a representative of the
news media and further that Judicial Watch was not entitled to a
"`blanket' fee waiver" because the information requested by Judicial
Watch was not likely to contribute significantly to the public's
understanding of DOJ's operations or activities.
Denials of requests for fee waivers are to receive de novo review
"limited to the record before the agency." 5 U.S.C. § 552
(a)(4)(vii). DOJ advances the novel argument that the Administrative
Procedure Act's "arbitrary, capricious, not in accordance with law"
standard (rather than de novo review) should apply to review of its
decision as to which category fits a FOIA requester. The argument is
unsupported, and rejected.
FOIA amendments enacted in 1986 provide, in essence, that a
"representative of the news media" is entitled to a waiver of FOIA search
fees. The term "representative of the news media" is broadly inclusive
and covers a 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." National Security Archive v. U.S. Department of Defense,
880 F.2d 1381, 1387 (D.C.Cir. 1989).
The government acknowledges that Judicial Watch has publicly
disseminated documents that it obtained through FOIA in the past, and
that it has published reports based on such requests, but in this case,
it argues, Judicial Watch has not demonstrated the requisite intent to
turn the raw materials of the particular documents it has requested into
a distinct work, or, for that matter, to use them for anything
recognizable as the work of the news media. Judicial Watch's response is
that its web site and radio show manifest its ongoing efforts to
The website does not resemble a "news medium" in any traditional
sense. It is the product of an organization that seeks to make news and
to generate publicity for itself The website does post a number of
"press releases," but they are self-serving accounts of Judicial Watch's
activities and transparent solicitations for either financial support or
for clients. See, e.g., Judicial Watch, As Millenium Approaches,
Judicial Watch's 43 Lawsuits Will Require Great Use of Resources in Next
Year (visited Oct. 26, 2000) <http://www. judicialwatch.org/press
— release.asp? pr — id = 240>. Most of the documents
obtained from Judicial Watch's prior FOIA requests are referenced by
hyperlink, but contain no further editorial element.
The 1989 decision of the Court of Appeals in National Security
Archive, supra., took respectful note of Senator Leahy's 1986 comment
(when the FOIA amendments were enacted) that "any person or organization
which regularly publishes or disseminates information to the public . . .
should qualify for waivers as a `representative of the news media.'"
(emphasis in original and quoting 132 Cong. Rec. S14298 (daily ed. Sept.
30, 1986)). Neither National Security Archive nor Senator Leahy
apparently anticipated the evolution of the Internet or the morphing
of the "news media" into its present indistinct form. Traditional lines
separating actor and reporter, objectivity and spin, even truth and
fiction, have become blurred. At a time when the news media are
frequently their own lead story, a publicity seeker may be a
representative of the news media, and vice versa. Indeed, if the regular
publication or dissemination of information to the public is enough to
qualify for a "representative of the news media" waiver, then arguably
anyone with a website is entitled to demand free search services under
the Freedom of Information Act. If such a result is intolerable (and for
the Justice Department, which may have several employees doing searches
for Judicial Watch, it may well be), the remedy lies with Congress.
Summary judgment on this issue will be denied to the government, and,
since the facts are undisputed and the record is complete, granted to the
plaintiff See McBride v. Merrell Dow & Pharmaceuticals, Inc., 800 F.2d 1208,
1212 (D.C.Cir. 1986) (citing Celotex Corp. v. Catrett, 477 U.S. 317,
326, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).
Judicial Watch is thus entitled to a waiver of search fees under
5 U.S.C. § 552 (a)(4)(A)(ii)(II), but in order to qualify for the
"blanket" waiver under 5 U.S.C. § 552 (a)(4)(A)(iii) — to avoid
duplication costs — it must also show that "the disclosure of the
information is in the public interest because it is likely to contribute
significantly to public understanding or operations or activities of the
government and is not primarily in the commercial interest of the
requester." Such a showing must satisfy four factors: (1) the subject of
the requested records must concern the "operations or activities" of the
government; (2) the disclosure must be "likely to contribute" to an
understanding of government operations or activities; (3) the disclosure
of information must contribute to the public's understanding; and (4) the
disclosure must be likely to contribute "significantly" to public
understanding of government operations or activities. See D.C. Technical
Assistance Organization v. U.S. HUD, 85 F. Supp.2d 46, 48-49 (D.D.C.
2000). Requests for public-interest waivers must be "reasonabl[y]
specific" and are judged on a case-by-case basis. See Larson v. CIA,
843 F.2d 1481, 1483 (D.C.Cir. 1988).
Judicial Watch requested a public interest waiver in this case so that
it might "promote accountable government . . . by disseminating relevant
information" that would purportedly "benefit the public by identifying
areas for future reform as well as deterring future abuses that could
otherwise proliferate without scrutiny." These perfunctory assertions
were too "ephemeral" to satisfy the "reasonable specificity" standard.
See American Fed'n of Gov't Employees v. United States Dep't of
Commerce, 632 F. Supp. 1272, 1278 ...