Watchdog Group Appeals Government’s Definition of Media

FTC imposed heavy fees for record requests from group, because it wasn’t ‘ news media’

• January 15, 2015 4:10 pm


After an initial round of arguments on Wednesday, a government watchdog group is hopeful that an appeals court will overturn a Federal Trade Commission decision that it does not qualify as a legitimate media outlet.

Cause of Action, a non-profit organization, argued in a federal appeals court Wednesday that the Federal Trade Commission wrongly denied several of its Freedom of Information Act requests based on a narrow, biased interpretation of what qualifies as a media outlet.

The FTC in 2012 denied requests from Cause of Action for fee waivers on several FOIA requests, saying it did meet the qualifications because it was not a news media outlet.

""FTC’s desire to chill criticism appears to explain what occurred here," Cause of Action executive director Dan Epstein said in a statement. "Upholding FTC’s ‘weaponization’ of FOIA will empower agencies to selectively define what is and isn’t ‘media’, thereby blocking transparency and significantly reducing the federal government’s accountability to all Americans."

Cause of Action appealed the denial, but the U.S. District Court of Washington, D.C., ruled in favor of the FTC in 2013, finding that the watchdog group did not qualify as media because it was insufficiently disseminating news to the public.

Epstein said the court’s line of questioning on Wednesday gave the group hope that the lower court’s decision could be overturned.

"We are encouraged by the Court’s focus on FTC’s selective document disclosure and by its recognition that steps are needed to ensure agencies do not take advantage of loopholes to deny web-based media FOIA disclosure, a recognition reflected by its hard questioning of the parties regarding the precise scope and meaning of FOIA’s language in a digital age," Epstein said.

Cause of Action’s lawsuit is considered a "case of first impression," meaning it’s the first time a court has considered the issue.

The Open Government Act of 2007 mandates that federal agencies recognize "alternative media," but in practice agencies have had broad discretion to choose which organizations qualify for fee waivers that exempt groups from hefty costs for obtaining public records.

For example, Cause of Action notes that the FTC awarded fee waivers to groups such as the AFL-CIO and Environmental Defense Fund.

Because it will set a precedent and affect how federal agencies classify digital media, the case has attracted support from numerous other press groups.

An amicus brief in support of Cause of Action was filed by the Reporters Committee for Freedom of the Press, the Washington Post, National Public Radio, the First Amendment Coalition, and the Daily Caller News Foundation, among others.

"This case centers on a question that strikes at one of the central accountability principles of democratic government: How far government agencies and the courts can go in defining what is ‘news’ and of ‘public interest,’ and this merits disclosure without hefty fees to the requestor," the Reporters Committee wrote in its amicus brief last year.

A court decision is expected in two to three months.

Published under: FOIA