Office of the Secretary of Defense
Overrules STRATCOM FOIA Fees
(June 23, 2005)In an important
victory for the Freedom of Information Act, the Office of the Secretary
of Defense
has determined that I "meet the criteria of a representative
of the news media" and voided three FOIA fees initially charged by U.S.
Strategic Command's FOIA office. The appeal
ruling concerns three FOIA requests made to STRATCOM in 2003 for three
clearly identified documents. In all three cases, the FOIA officer at
STRATCOM provided a "no documents" response, failed to locate (or
determine the status of) the documents, denied my request for a free waiver, and instead
charged over $400 in search fees. In justifying its denial of the fee
waiver,
the STRATCOM FOIA officer said that the denial was:
"based on your assertion you are a member of the
press. It is our opinion you are not, in fact, a viable member but a
private researcher who occasionally writes an article for a limited
audience and as a freelance author rather than a paid, full-time
reporter."
STRATCOM's justification went far beyond what the law
permits and threatened to establish new criteria for free
determination. If unchallenged, the justification would significantly
narrow the group of "media type" requesters that could use the FOIA to
request information from government agencies without paying search and
copying costs by restricting requesters to "paid, full-time reporters."
In addition, the lucky few would be required to write more than
"occasionally" and to more than a "limited audience."
In
my appeals, I argued that contrary to STRATCOM's
determination, I do not claim to be "a member of the press" but rather a
"representative of the news media." The latter is the term the law uses
for fee determination, and Department of Defense regulations identify a "representative of
the news media" as "a person
actively gathering news for an entity organized and operated to publish
or broadcast news to the public." The Department of Justice
states that a "representative of the news media" is defined as "any
person actively gathering information of current interest to the public
for an organization that is organized and operated to publish or
broadcast news to the general public."
STRATCOM's fee determination
significantly
narrowed the legal interpretation of the "representative of the news
media" requester category. The court has specifically rejected a narrow
interpretation of the “representative of the news media” category and
ruled that, for purposes of the FOIA’s free waiver provisions, a
"representative of the news media" is "a person or entity that gathers
information of potential interest to a segment of the public, uses its
editorial skills to turn the raw material into a distinct work, and
distributes that work to an audience." (National Security Archive vs.
DOD, 881 F.2d at 1387).
In reaching this
determination, the court noted that "because one of the purposes of the
[FOIA] is to encourage the dissemination of information in Government
files…it is critical that the phrase 'representative of the news media'
be broadly interpreted if the Act is to work as expected." (Id. at 1386,
quoting 132 Cong. Rec. S14298 (daily ed. Sept. 30, 1986)(remarks of Sen.
Leahy).
In short,
my FOIA appeal concluded
that
"contrary to STRATCOM's FOIA determination, I fully qualify as a
'representative of the news media' requester as defined by [Department
of Justice, Office of Management and Budget, Department of Defense], and the courts. STRATCOM's FOIA
determination, in contrast, goes beyond the provisions of the statute,
the courts, and current guidance, and establishes new and restrictive
fee determination and requester status requirements for which there is
no legal basis."
Background to STRATCOM's Position
STRATCOM didn't always behave like
this. Prior to April 1998, STRATCOM granted me full fee waivers as a
"representative of the news media" as a matter of routine. Then, in
April 1998, I
wrote the report
"Proliferation of Weapons of Mass Destruction and U.S. Nuclear Strategy"
for the British American Security Information Council (BASIC), which
used STRATCOM FOIA documents to critique US nuclear weapons policy
developments. The report created widespread media attention. STRATCOM's FOIA office
then reassessed my requester status and began denying my fee waiver
requests and charging large fees for "no document" responses.
Obviously, Government agencies are not allowed
to use fees to "chill" the public's pursuit of documents
under the FOIA. Nor should they use fees to "punish" researchers that
write "critical" assessments of the government's nuclear policy and
operations.
Overruled
In two rounds of appeals, involving
four FOIA cases, STRATCOM denials were overruled by higher authority at
the Pentagon. In
the first round, which involved a STRATCOM fee of $279.60 for a "no
document" determination, the
chief of the Pentagon's Office of Freedom of Information and Security
Review ruled:
"I have determined that you meet
the criteria of a representative of the news media. STRATCOM has
been requested to continue the processing of your request and to
recategorize your fee status from 'other' to news media."
In the
second round of appeal, which involved fees of more than $400 for no
documents, the
Office of the Secretary of Defense
overruled STRATCOM's reassessment of my requester status and voided
the fees assessed by STRATCOM. The
OSD letter reads:
"I have determined that you meet
the criteria of a representative of the news media. Therefore, fees
for processing your requests fall below the automatic fee waiver
threshold of $15.00 and are no longer an issue."
©
Hans
M. Kristensen |
www.nukestrat.com | 2004-2005
|
