AAN Joins Comments Regarding Proposed Department of Defense FOIA Rules

AAN members may not engage in a lot of coverage of federal defense agencies but that doesn’t mean the association will look the other way when the Department of Defense (“DOD”) tries to make it harder for you to access their records when you need them. That’s why we were one of 13 organizations who jointly filed comments drafted by the Reporters Committee for Freedom of the Press in response to a DOD Notice of Proposed Rulemaking that would affect the way requests filed by news media are processed, how quickly they are processed and how much you’d have to pay to get the records. In fact, one proposed change in particular, was deemed so pernicious that it alone merited our participation.

The occasion of the Notice of Proposed Rulemaking was the DOD’s updating its FOIA rules in response to the Electronic Freedom of Information Act (EFOIA) Amendments of 1996 and the Openness Promotes Effectiveness in our National (OPEN) Government Act of 2007. So, as you can see, timely FOIA responses aren’t just limited to the requests themselves.

The most offensive provision is a change to Proposed Rule 286.29(a)(4), which reads:

The IDA should consult with PAOs to become familiar with subject matter that is considered to be newsworthy, and advise PAOs of FOIA requests from news media representatives. The IDA also should inform PAOs in advance when they intend to withhold or partially withhold a record if it appears the withholding action may be a media issue.

“IDA” means “Initial Denying Authority”, i.e., the FOIA officer. So this rule says that the FOIA officer should check with the Public Affairs Office when it gets a request that may be newsworthy, including any request from a member of the news media, or when they intend to deny a request in a way that would generate media coverage. This is obviously a complete affront to FOIA and probably contributes to the politicization of FOIA requests that grabbed headlines a few years ago when the Department of Homeland Security was found to be running FOIA requests past political appointees before responding, especially to delay the process whenever possible.

But this isn’t the only provision we’re commenting on. We also suggest changes to a proposed definition of “compelling need” as used in conjunction with a request for expedited processing of a request (requiring the agency to respond to the request within 10 days rather than 20, though in practice neither is regularly met). The proposed definition says, in part, that compelling need exists “when the information is urgently needed by an individual primarily engaged in disseminating information in order to inform the public concerning actual or alleged government activity and the value of the information would be lost if it is disseminated at a later time”. There is also a separate definition of the term “urgently needed” as “has a particular value that will be lost if not disseminated quickly”. The comments urge four changes:

That the portion of “compelling need” reading “and the value of the information would be lost if it is disseminated at a later time” be deleted because it’s somewhat redundant when someone factors in the definition of “urgently needed”.

That the definition of “urgently needed” be clarified with regard to information that will be lost if not disseminated quickly to make it clear that the information need not be lost entirely but instead simply any information that will lose value quickly (or be lost entirely).

That language identifying information “of historical interest only” as something falling outside of a “compelling need” be deleted as these historical records can sometimes inform public debate in the present and they would be needed as soon as possible in some cases if they have never previously been released and read.

Finally, they urge that “news media publication or broadcast deadline unrelated to the news-breaking nature of the information” be struck or modified because the urgent need for such information is not limited to information of a news-breaking nature.

There are also four provisions regarding fees which are addressed:

A provision which says that certain requests made by members of the news media could be considered commercial requests and, therefore, subject to processing fees. The example given in the proposed rules is a magazine publisher asking for duty addresses of DoD personnel to ask them to subscribe to the magazine. The comments note that, while it is theoretically possible that news media could engage in purely commercial requests, it is highly unlikely. There should be a presumption that news media requestors are subject to classification as “representatives of the news media” and given appropriate fee waivers. The comments ask for that additional clarifying language to counterbalance the proposed language.

The proposed rule identifies several examples of news media entities that qualify as “representatives of the news media” for fee waiver purposes. While the OPEN Government Act, in amending the fee provisions, noted that representatives of the news media could include those who make publications available for purchase, by subscription or by “free distribution to the general public”, the proposed rule leaves that last part out. That would, of course, affect everyone from television networks to public radio to ProPublica to alt-weeklies. Though the examples given aren’t exclusive, we are still requesting the clarification for obvious reasons.

The proposed rules say that freelance journalists may be regarded as working for a news organization for purposes of a fee waiver. But in the OPEN Government Act that “may” is a “shall”. We ask that the proposed rule be changed to reflect the will of Congress.

Finally, the proposed rule says that someone who “merely disseminates” documents received pursuant to FOIA to an audience would not qualify as a representative of the news media because it is not using editorial skills to turn raw mateirals into a distinct work. We ask that clarifying language be added to ensure the rule – and the waiver it grants – be liberally construed in favor of the requestor since sometimes even news organization simply post raw materials without accompanying comment or story.

The comment period only closed on November 3, 2014, so we expect that it will be some time before the agency issues the final rules.

Kevin M. Goldberg is AAN’s legal counsel and a member of the law firm of Fletcher, Heald & Hildreth, PLC.