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ELECTRONIC PRIVACY INFORMATION CENTER v. ECF DEPT. OF DEFENSE

January 16, 2003

ELECTRONIC PRIVACY INFORMATION CENTER, PLAINTIFF,
V.
ECF DEPARTMENT OF DEFENSE, DEFENDANT.



The opinion of the court was delivered by: John D. Bates, United States District Judge

MEMORANDUM OPINION

This matter comes before the Court on a motion for a preliminary injunction by plaintiff Electronic Privacy Information Center ("EPIC"). EPIC is a non-profit educational organization that disseminates information to the public on privacy, technology, and civil liberties issues. EPIC has sought certain records under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, relating to the Information Awareness Office of the Department of Defense ("DoD") and its Director, John Poindexter, and challenges the decision of DoD denying its request for preferred fee status under FOIA as a "representative of the news media." Under the fee provisions of FOIA, representatives of the news media are not charged the costs and fees that ordinarily would be assessed for processing and duplicating requested documents. EPIC contends that it regularly publishes and disseminates an electronic newsletter and has written and published several books on privacy and civil liberties issues, thus qualifying as a representative of the news media under DoD regulations.

BACKGROUND

A. Freedom of Information Reform Act

Congress amended FOIA's fee provisions through the Freedom of Information Reform Act of 1986 ("FIRA") in an effort to "keep fees from becoming an unnecessary barrier to disclosure." 132 Cong. Rec. H9464 (daily ed. Oct. 8, 1986) (Joint Analysis of Reps. English and Kindness). Originally, FOIA required requesters to pay the costs of searching for and duplicating documents, but allowed agencies to waive or reduce fees if the information would "be considered as primarily benefitting the general public." 5 U.S.C. § 552(a)(4)(A) (1982). Under the FIRA amendments, government agencies must adopt fee regulations waiving or reducing search and duplication fees depending on the requester's status and on whether the requested records are for a commercial or non-commercial purpose. See Nat'l Security Archive, 880 F.2d at 1382.

Under FIRA, "when records are requested for commercial use," an agency may charge the fees related to document search, duplication, and review. 5 U.S.C. § 552(a)(4)(A)(ii)(I). However, if the records are sought for non-commercial use, and the requester qualifies for one of three preferred status categories, an agency may only charge fees for document duplication (over 100 pages):

[F]ees shall be limited to reasonable standard charges for document duplication when records are not sought for commercial use and the request is made by an educational or noncommercial scientific institution, whose purpose is scholarly or scientific research; or a representative of the news media.

5 U.S.C. § 552(a)(4)(A)(ii)(II). Hence, FOIA, as amended by FIRA, now grants "preferred status" to qualifying requesters — educational and scientific organizations, or news media — by limiting or waiving the fees associated with their requests. Nat'l Security Archive, 880 F.2d at 1385; Media Access Project v. FCC, 883 F.2d 1063, 1065 (D.C. Cir. 1989).

Those requesters who do not qualify for one of the three preferred status categories, and do not request documents for commercial use, fall within the "other" fee category under FIRA, and are charged for document search and duplication, but not for document review. Moreover, any requester may have its fees reduced or waived entirely if the material sought is for a non-commercial use and "in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government." 5 U.S.C. § 552(a)(4)(A)(iii). Here, EPIC seeks preferred status as a "representative of the news media." DoD denied that request because EPIC is a non-profit public interest organization that does not meet DoD's definition of "representative of the news media." Instead, DoD placed EPIC in the "other" fee category, which would require EPIC to pay the full document search and duplication fees related to its FOIA request. The sole issue before this Court is whether EPIC qualifies as a representative of the news media for purposes of the FOIA fee provisions as applied in DoD's regulations.

B. EPIC's FOIA Request

EPIC publishes a biweekly electronic newsletter, issues regular public reports and analyses, and maintains a free online electronic library. EPIC staff members are also regular contributors to numerous newspapers, newsletters, magazines, and law reviews. Any information that is obtained as a result of this request will be disseminated through these publications and others.

Id. DoD denied EPIC's request for news media status on March 1, 2002. Pl. Motion, Ex. 2 (letter from McIntyre to Madsen). According to DoD, in order to qualify as a representative of the news media under DoD's regulations, a FOIA requester must actively gather news (i.e., "information that is about current events or that would be of current interest to the public") for an entity that is organized and operated to publish or broadcast news to the public. Id. DoD noted that "[i]t is very doubtful that a large majority of these [requested] documents would qualify as `news' as defined [by DoD regulations]." Id. Instead, DoD placed EPIC in the "other" fee category under FIRA, requiring EPIC to pay all search and duplication fees incurred in processing EPIC's request. Id. DoD advised EPIC that "a search for documents responsive to your request will not be initiated until we receive your willingness to pay fees that you may incur as an `other' requester." Id.

On March 12, 2002, EPIC appealed DoD's decision denying it news media status. EPIC explained that it "routinely and systematically disseminates information to the public." Pl. Motion, Ex. 3, at p. 2 (letter from Madsen to DoD). It noted that its website "highlights the `latest news' concerning privacy and civil liberties," and that its organization "publishes a bi-weekly electronic newsletter that is distributed to more than 15,000 readers, many of whom report on technology issues for major news outlets." Id. EPIC also pointed out that it "publishes and distributes printed books that address a broad range of privacy, civil liberties and technology issues." Id. EPIC attached 50 pages of documents from its website, including its homepage, a web page displaying scanned images of documents EPIC obtained through FOIA requests, a web page displaying an archive of past EPIC newsletters, and a list of EPIC publications. Id.

DoD denied EPIC's appeal on April 16, 2002:

[Y]ou state that `EPIC is a non-profit, educational organization that routinely and systematically disseminates information to the public.' You state that EPIC is an educational organization that disseminates information instead of being an entity that is both organized and operated to disseminate information. Additionally, the EPIC internet website states that `EPIC is a public interest research center.' Therefore, I am denying your appeal for EPIC to be considered a representative of the news media, and accordingly it should be classified as an `other' requester.

Pl. Motion, Ex. 4, p. 1 (letter from Cooke to Madsen) (emphasis in original).

On May 10, 2002, EPIC sought further reconsideration of DoD's decision. EPIC reiterated its claim that it was "organized and operated to publish or broadcast news to the public":

We maintain a heavily visited Web site that highlights the `latest news' concerning privacy and civil liberties issues. These featured news items reflect EPIC's editorial judgment concerning what is newsworthy for our audience, and include EPIC's analysis of information derived from a variety of sources, including material obtained under the FOIA.
EPIC publishes and distributes printed books that address a broad range of privacy, civil liberties and technology issues. . . . [T]hese paper publications reflect EPIC's analysis of information derived from various sources and which we believe is of interest to our audience.

Pl. Motion, Ex. 5 at pp. 2-3 (letter from Madsen to DoD).

However, on May 28, 2002, DoD again denied EPIC's request ...


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