In another recent advisory opinion, the Public Access Counselor of the Illinois Attorney General's office (PAC) addressed the definition of “news media” under Section 2(f) of the Illinois Freedom of Information Act and whether it applied to a local blog.
In 2017 PAC 46249, a local blog was designated as a "recurrent requester" by a public body for submitting numerous FOIA requests. The blog appealed to the PAC, claiming that it was a member of the “news media” under FOIA. Section 2(f) of FOIA defines “news media” as a “newspaper or other periodical issued at regular intervals whether in print or electronic format” or a “news service whether in print or electronic format.” Section 2(g) of FOIA exempts members of the news media from being deemed recurrent requesters by public bodies.
The PAC began by interpreting the definition of “news media” under FOIA. Noting that no Illinois court had addressed the issue, the PAC adopted the test set forth in other jurisdictions, which states as follows:
An individual or entity that self-publishes information on the Internet generally must demonstrate some adherence to recognized journalistic standards such as editorial oversight or the creation of original content similar to that of traditional media in order to be considered “news media.”
The public body claimed that the blog did not adhere to recognized journalistic standards, and argued that the personal commentary and editorials of the blog’s publisher were opinion-based content that was not analogous the editorial oversight and fact checking that are standards of traditional news sources. In response, the blog submitted evidence that its content was focused on in-depth reports and commentary on local politics and governmental issues, that it had a sizeable readership, and that it had been cited in other traditional and non-traditional media outlets. The PAC found that the blog was regularly updated with posts on governmental issues in the region and elsewhere, and that the blog often included original content consisting of the opinion and commentary of the blog’s publisher.
The PAC noted the public body's focus on the blog's alleged lack of editorial oversight and fact-checking. However, the PAC held that whether a publication can be considered “news media” for the purposes of FOIA depends on the totality of the circumstances, and no single factor is dispositive. The PAC found that the blog functioned much like a member of the traditional news media due to (1) its production of original content; (2) its range of reporting on issues of public interest; (3) its established presence on its own and in the traditional news media; and (4) the size and diversity of its readership. The PAC concluded that, based on the totality of the circumstances, the blog was a member of the “news media” under FOIA, and as a result, the public body had improperly designated the blog as a recurrent requester.
It is important to note that this opinion does not mean that any blog or social media site will automatically qualify as "news media." Instead, the determination of "news media" will depend on the facts and application of a variety of factors to determine whether the site functions like a member of the traditional news media, as discussed in the opinion.
For public bodies, this is an important test because FOIA includes a variety of special rules for news media, including exempting them from the "recurrent requester" and "voluminous request" provisions of FOIA, among others. For more information on how FOIA treats news media differently, check out tomorrow's blog.
Post Authored by Kurt Asprooth, Ancel Glink