[Editor's note: Please see the related article in this issue, Statement of Meredith Fuchs, General Counsel, The National Security Archive Before the House Permanent Select Committee on Intelligence Hearing on the Media's Role and Responsibilities in Leaks of Classified Information.]
The problem with making a law in the 1970s and then ignoring the fact that technology, commerce and government operations have all changed completely from the time the law was passed, is illustrated by the fee waiver provision for members of the media as set forth in the FOIA.
The FOIA grants fee waivers to "representatives of the news media, 5 U.S.C. § 552a(4)(A)(ii)(II). At the time the law came into being, the news media was either print (newspapers and magazines) or electronic (radio and TV). Today the landscape has completely changed. While news is still produced by the traditional print and electronic sources, it is also produced by an increasing amount of independent internet sites, bloggers and other entities (public and non-public), publicizing their findings on their own websites.
Agencies have now struggled for years with the question of what, in the age of the internet, constitutes the news media? Today, anyone with an internet connection can produce a site capable of publicizing information it collects via a FOIA request.
Congress has failed to address this question, leaving agencies in a no-win situation where they must struggle to find the answer to who qualifies as members of the media. If agencies fail to grant media status, they are challenged in court, such as the recent case of the National Security Archives suit against the CIA, where the CIA revoked the Archives status as a member of the media. The Archive is now challenging this decision in federal court.
Besides the legal costs of defending their actions, agencies also lose if fee waivers are granted. In a time of decreasing funding of FOIA offices, agencies lose out on being reimbursed for thousands of dollars if fees they would otherwise by being able to collect.
Additionally, one has to question whether the current fee waiver scheme is fundamentally fair, or is it merely another form of corporate welfare. Major media such as the New York Times or the Washington Post or Fox makes millions of dollars in profits every year, and no one would argue that they don't qualify for fee waivers under the current scheme. However, the National Security Archives or an individual making a FOIA request him or herself and publishing the information on a website may not qualify for a fee waiver under current law. I would argue that fundamental justice and democratic principles should allow the FOIA fee waiver provision to find a way to put big media and the lone blogger on an equal footing. Only an act of Congress can do that.
The much anticipated reports Agency FOIA Improvement Reports Under EO 13392 are on the Department of Justice FOIA website. There are numerous reports of agencies here, however, an early reading of the goals and findings of the reports is clearly underwhelming. As it is basically a process akin to one where the student can give themselves their own grade, the reports are very generous in how the agencies will deal with the problems they have found. Rather than go through this process, it would have been more beneficial to requesters if Congress had passed the FOIA legislation proposed by Texas Senator John Cornyn. Until new legislation or real Executive action occurs, FOIA backlogs will continue to rise and requesters will continue to be an afterthought.