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Liberman v. U.S. Department of Transportation

United States District Court, District of Columbia

December 31, 2016

ELLEN C. LIBERMAN, Plaintiff,
v.
U.S. DEPARTMENT OF TRANSPORTATION, Defendant.

          MEMORANDUM OPINION

          KETANJI BROWN JACKSON, United States District Judge

         The "basic purpose" of the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, is '"to open agency action to the light of public scrutiny.'" U.S. Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 772 (1989) (quoting Dep't of Air Force v. Rose, 425 U.S. 352, 372 (1976)). In furtherance of that core objective, the FOIA gives "special status" to news-media entities that request government records for the purpose of disseminating them to the public, Nat'l Sec. Archive v. U.S. Dep't of Def., 880 F.2d 1381, 1388 (DC. Cir. 1989), including exempting such entities from certain document-processing fees that are charged to other records requesters under the FOIA. See 5 U.S.C. § 552(a)(4)(A)(ii)(II). In the instant lawsuit, Plaintiff Ellen C. Liberman challenges the decision of the National Highway Traffic Safety Administration ("NHTSA") to deny her request for such a FOIA-fee waiver. (See Compl. for Declaratory & Injunctive Relief ("Compl."), ECF No. 1.) Liberman, a journalist-contributor to the consumer safety blog The Safety Record, submitted a document request to NHTSA and specifically asked for a fee waiver because she was seeking documents "solely for the purpose of publication and dissemination of the requested information via The Safety Record[.]" (Id. ¶ 14 (internal quotation marks omitted).) NHTSA denied Liberman's fee-waiver request on the grounds that The Safety Recordblog is affiliated with the for-profit company Safety Research & Strategies, Inc. ("SRS")-SRS is an industry research firm that runs the blog-and, in the agency's view, the statutory fee-waiver provision is inapplicable to FOIA requests made for the purpose of that publication. (Compl. ¶¶ 18-25.) Liberman's two-count complaint against the Department of Transportation ("DOT") alleges that NHTSA's denial of her fee-waiver request violates both the FOIA (Count I) and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-06 (Count II).

         Before this Court at present are the parties' cross-motions for summary judgment (see Def.'s Mem. of P. & A. in Supp. of its Mot. to Dismiss and for Summ. J. ("Def.'s Mem."), ECF No. 10-2; Mem. in Opp'n to Def.'s Mot. for Summ. J., & in Supp. of Pl.'s Cross-Mot. for Summ. J. ("Pl.'s Mem."), ECF No. 12), which are fully briefed and ripe for decision (see Def.'s Combined Reply to Pl.'s Opp'n to its Mot. for Summ. J. & Mot. to Dismiss & Opp'n to Pl.'s Cross-Mot. for Summ. J. ("Def.'s Reply"), ECF No. 15; Reply Mem. in Supp. of Pl.'s Cross-Mot. for Summ. J. ("Pl.'s Reply"), ECF No. 17). In these motions, the parties dispute whether The Safety Re cord qualifies as "a representative of the news media" for the purpose of FOIA's fee-waiver provision (see Def.'s Mem. at 21-26; Pl.'s Mem. at 17-21), and also whether Liberman's FOIA request actually seeks records "for commercial use" because The Safety Record exists to further the pecuniary interests of SRS. (Def.'s Mem. at 18-21; Pl.'s Mem. At 12-17).[1] As explained fully below, this Court concludes that The Safety Re cord is an entity that qualifies as "a representative of the news media" within the meaning of the fee-waiver provision, and that a news-media entity's journalistic activities are not properly characterized as a "commercial use[, ]" even if those publishing activities ultimately further the financial interests of that entity or its parent company. 5U.S.C. § 552(a)(4)(A)(ii)(II). Thus, the statutory news-media fee waiver provision is applicable to Liberman's FOIA request, and therefore Liberman's Cross-Motion for Summary Judgment will be GRANTED, while DOT's Motion for Summary Judgment must be DENIED. A separate order consistent with this memorandum opinion will follow.

         I.BACKGROUND[2]

         A. The Safety Record Blog Audits Parent Company, Safety Research & Strategies, Inc.

         The Safety Record is an online blog publication that has several posts per month dating backto2004. (See Letter of Oct. 14, 2014 ("FOIA Appeal"), Ex. E to Def.'s Mem, ECF No. 10-3, at 55-70 (enclosing sample posts from The Safety Re cord blog); id. at 55-57 (showing a number of posts in The Safety Re cord blog's archive for each month between 2004 and 2014).) The sample posts and articles that are in the administrative record reveal that The Safety Re cord reports on regulatory developments, consumer litigation, and other recent events in the area of consumer safety (see FOIA Appeal, Def. 's Ex. E, at 19-70), and its articles include analysis of congressional hearings and other legislative happenings related to consumer concerns (see, e.g., Id. at 56 (describing a Senate committee hearing on NHTSA oversight and a House committee report on ignition switch issues); id. at 58-60 (reporting on a House committee hearing on ignition switch issues).[3] Ac cording to Plaintiff, the "frequently visited blog site" has always "contain[ed] in-depth information, commentary and analysis about a variety of automotive and product safety issues" (Letter of July 11, 2014 ("FOIA Request"), Ex. A to Def.'s Mem., ECF No. 10-3, at 3), and The Safety Record also "posts documents received in response to its FOIA requests along with accompanying analysis and commentary[, ]" and thus provides "insight into government operations and activities" at "no charge" with the objective of "educat[ing] the press, policymakers, public health practitioners, attorneys and the general public[.]" (Id.; see also Id. (noting that "[m]any of our reports are the basis for consumer news in more traditional broadcast, print and web-based media"). Between 2005 and 2011, The Safety Record also published a periodic newsletter, which had the same objective and covered the same topics. (See FOIA Appeal, Def.'s Ex. E, at 19-54 (enclosing sample issues of the newsletter); id. at 14 (recounting the newsletter's history).)

         Significantly for present purposes, the for-profit industry research firm SRS owns and publishes The Safety Recordblog. (Def.'s Statement ¶¶ 2, 18.) SRS provides services that include "support for civil litigation, rulemaking, legislation or public awareness campaigns[, ]" and for clients who retain the firm, SRS employees conduct "fact-based research and analysis on injuries associated with product hazards ranging from motor vehicle to consumer and industrial products to medical devices." (Id. ¶ 15 (internal quotation marks and citation omitted).) The Safety Record appears on SRS's website and is not incorporated separately from SRS. (Id. ¶¶ 16, 18.) Nor does the blog have its own employees. (Letter of Oct. 28, 2015 ("Appeal Decision"), Ex. G to Def.'s Mem., ECF No. 10-3, at83.)[4]

         Notably, SRS periodically seeks information from the government in connection with the non-journalistic services that SRS provides, including requesting records from NHTSA under the FOIA. (See Def.'s Statement ¶ 14; see, e.g., FOIA Appeal, Def.'s Ex. E, at 71 (enclosing sample SRS FOIA request letter to NHTSA).) SRS does not seek fee waivers with respect to the FOIA requests that it submits in connection with its commercial services; in fact, when SRS "seek[s] . . . information under the category of 'commercial use requester, '" it makes a proactive declaration that the company is "willing to pay [the] fees necessary to procure th[e] information." (FOIA Appeal, Def.'s Ex. E, at 71; see Def.'s Statement¶ 14); see also 5 U.S.C. § 552(a)(4)(A)(ii)(I) (permitting a responding agency to bill the requester for the direct costs of "document search, duplication, and review, when records are requested for commercial use"). SRS employees also submit FOIA requests for information that is solely intended for public distribution via The Safety Record. (See FOIA Request, Def.'s Ex. A, at 3 ("The Safety Record Blog often posts documents received in response to its FOIA requests along with accompanying analysis and commentary.").) Plaintiff maintains that "The Safety Record submits its own requests [separate and apart from those that are submitted on behalf of SRS], all of which are made in furtherance of its efforts to gather information and use its editorial skills to produce a distinct work for dissemination to the public." (FOIA Appeal, Def.'s Ex. E, at 16.)

         B. The FOIA And Fe e-Waiver Re quests At Is sue Here

         Liberman, who holds a Master's degree from the Columbia University Graduate School of Journalism, is a "researcher and writer with 28 years of experience gathering and organizing information." (Safety Research & Strategies, Inc., About Us, Ex. I to Def.'s Mem., ECF No. 10-3, at 91.) Liberman is an employee of SRS and a frequent contributor to The Safety Record. (See, e.g., FOIA Appeal, Def.'s Ex. E, at 22, 26, 30.) On July 11, 2014, Liberman submitted the following FOIA request to NHTSA on behalf of The Safety Record, seeking documents related to NHTSA's testing of "smart key" technology:

We request any and all documents produced by [NHTSA] and/or its contractors regarding the January 2014 FMVSS 114 compliance investigations involving vehicles equipped with remote ignition/"smart key" technology. We are seeking any reports, communications, data, or memoranda generated in the course of the investigation(s) conducted under the supervision of Harry Thompson, Chief of the Crash Avoidance Division, Office of Vehicle Safety Compliance.

(FOIA Request, Def. 's Ex. A, at 2.)

         Liberman's FOIA request also included a "Request for Categorization as a 'Representative of the News Media'" so as to be eligible for a waiver of the standard FOIA-request processing fees. (Id.) In support of her request for a news-media fee waiver, Liberman specifically represented that "[t]his request is separate and apart from those submitted by Safety Research & Strategies, and is made solely for the purpose of publication and dissemination of the requested information via The Safety Record.'" (Id.) In the fee-waiver discussion, Liberman also asserted that "The Safety Record qualifies as a 'representative of the news media' pursuant to the FOIA[.]" (Id.) Liberman explained that The Safety Re cord blog is a publication that "reports the latest developments and contains in-depth information, commentary and analysis about a variety of automotive and product safety issues[, ]" and that the blog "often posts documents received in response to its FOIA requests along with accompanying analysis and commentary, " which provides the public with "insight into government operations and activities[, ]" as noted above. (Id. at 3.)

         NHTSA replied to Liberman's FOIA and fee-waiver requests on September 5, 2014; its response letter notified Liberman that her request for a news-media fee waiver was denied. (Letter of Sept. 5, 2014, Ex. B to Def.'s Mem., ECF No. 10-3, at 6.) NHTSA stated that the agency was denying the fee-waiver request because "The Safety Recordis an arm of [SRS], " and because "SRS and The Safety Re cord are organized to perform activities as a commercial research and advocacy organization, not as an organization where its operational activities are for the dissemination of information as a representative of the news media." (Id. at 7.) NHTSA indicated that processing Liberman's FOIA request would cost $2, 070, and that the agency would not proceed with processing the request until Liberman agreed to pay the full cost or specified the amount she was willing to pay. (Id.) Liberman responded that she was willing to pay the full cost of the processing, but wished to preserve her right to appeal the fee-waiver denial. (See Letter of Sept. 18, 2014, Ex. C to Def.'s Mem., ECF No. 10-3, at 9.) NHTSA replied the following day, indicating that the agency would begin to process Liberman's document request. (-See Letter of Sept. 19, 2014, Ex. D to Def.'s Mem., ECF No. 10-3, at 12).

         Liberman then proceeded to appeal the fee-waiver denial to NHTSA's chief counsel. (FOIA Appeal, Def.'s Ex. E, at 14-16.) To highlight The Safety Record's news-media bona fides, Liberman's appeal letter emphasized the publication's high readership levels-averaging 6, 000 unique visitors per month-and ten-year history of publishing newsworthy content. (See Id. at 16.) Liberman also attached several issues of The Safety Record's newsletter and many sample blog posts. (See Id. at 19-70.) Furthermore, in response to NHTSA's concern that The Safety Re cordwas not distinct from SRS, Liberman's appeal letter emphasized that the two entities submit separate FOIA requests, and that The Safety Record's requests are used only for disseminating news. (Id. at 16.)

         NHTSA's chief counsel denied Liberman's appeal on December 1, 2014. As grounds for the denial, the letter that the agency sent to Liberman stated that "neither [SRS] nor The Safety Re cord &re a 'representative of the news media' under the FOIA[, ]" and also that, in the agency's view, Liberman was seeking records for commercial use, because "The Safety Re cord blog is not a distinct entity that can be separated from [SRS]" and "the publication exists primarily (if not solely) for marketing purposes." (Letter of Dec. 1, 2014, Ex. F. to Def.'s Mem., ECF No. 10-3, at 75-76, 78 (interpreting 5 U.S.C. § 552(a)(4)(A)(ii)(II)).)

         C. Procedural History

         On July 22, 2015, Liberman filed a two-count complaint in this Court challenging NHTSA's denial of her fee-waiver request under both the FOIA and the APA. (Compl.) Liberman's complaint seeks a declaration that she qualifies as a news-media requester when she seeks records on behalf of The Safety Record, and an order enjoining NHTSA and DOT to treat her as such with respect to the assessment of FOIA-processing fees "for existing and future requests submitted on behalf of The Safety Record:' (Id. ¶4.)[5]

         On September 17, 2015-two months after the filing of the instant action- NHTSA informed Liberman that it was rescinding its prior decision regarding her fee-waiver request, and that the agency would re-examine her administrative appeal in light of the D.C. Circuit's intervening decision in Cause of Action v. FTC, 799 F.3d 1108 (D.C. Cir. 2015), which had opined atlength about FOIA's news-media fee-waiver provision. (See Email of Sept. 17, 2015, Ex. K to Def.'s Mem., ECF No. 10-3, at 96.) Accordingly, DOT filed a consent motion for an extension of time to respond to Liberman's complaint (ECFNo. 6), which this Court granted on September 23, 2015 (see Mm. Order of Sept. 23, 2015).

         On October 28, 2015, NHTSA's chief counsel again denied Liberman's administrative appeal; this time, the agency's denial rested solely on its conclusion that Liberman was ineligible for the fee waiver because she was seeking records for commercial use. (See Appeal Decision, Def.'s Ex. G, at 85 ("Because I have determined that the FOIA request at issue was made 'for commercial use, ' thus precluding The Safety Record from qualifying for a fee reduction, I need not provide an agency determination on whether The Safety Recorders'] a 'representative of the news media.'"); see also Id. at 84 (finding that "The Safety Record, which does not exist separately from SRS, is merely a marketing blog intended to further the commercial and profit interests of SRS").)

         The parties then proceeded with Liberman's lawsuit in this Court. On January 5, 2016, DOT filed a motion to dismiss and for summary judgment; Liberman filed a cross-motion for summary judgment on February 9, 2016.[6]

         DOT's summary judgment motion argues that the fee-waiver denial was proper, because the contents of The Safety Record are essentially advertisements for SRS's services, rather than news, and thus, The Safety Record is not "a representative of the news media." (Def.'s Mem. at23-26; Def.'s Reply at 13-16.) DOT also maintains that Liberman's FOIA request sought records "for commercialuse[, ]" because The Safety Record exists to further the pecuniary interests of SRS. (Def.'s Mem. at 18-21; Def. 's Reply at 8-13.) Liberman responds that nearly all of The Safety Record s articles are purely informational and do not reference SRS's services. (Pl.'s Mem. at 17-21; Pl.'s Reply at 5-6.) Furthermore, Liberman maintains that the fact that a news-media requester may have a pecuniary interest in its news-dissemination activities does not render those activities a "commercial use" within the meaning of 5 U.S.C. § 552(a)(4)(A)(ii)(II). (Pl.'s Mem. at 12-17; Pi's Reply at 2-5.) This Court held a hearing on the parties' ripe cross-motions on October 25, 2016.

         II. LEGAL STANDARD

         A. Summary Judgment ...


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