The opinion of the court was delivered by: John D. Bates, United States District Judge
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
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.
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.
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
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'
Pl. Motion, Ex. 4, p. 1 (letter from Cooke to Madsen) (emphasis in
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
Pl. Motion, Ex. 5 at pp. 2-3 (letter from Madsen to DoD).
However, on May 28, 2002, DoD again denied EPIC's request ...