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Tuesday, May 9, 2017

How FOIA Treats News Media Differently

Yesterday, we reported on a PAC (Public Access Counselor) advisory opinion that determined that a local blog fell within the definition of "news media" under FOIA based on various factors applied by the PAC in the opinion. We mentioned yesterday that this designation is important to public bodies, because FOIA treats "news media" differently in a number of respects. Here are a few examples:

1.  Recurrent Requester.  

FOIA provides a mechanism by which a public body can classify an individual or organization as a "recurrent requester" based on the number of requests submitted by that person/organization within a particular time period. Specifically, if a requester has (1) submitted 50 or more FOIA requests in a 12 month period; or (2) 15 or more FOIA requests in a 30 day period; or (3) 7 or more FOIA requests within a 7 day period, the public body can notify the requester that he or she will be classified as a "recurrent requester." That allows the public body additional time to respond to the request, similar to a commercial request. That provision specifically exempts news media, however, to the extent that the principal purpose of the media's FOIA request is (i) to access and disseminate information concerning news and current or passing events; or (ii) for articles of opinion or features of interest to the public; or (iii) for the purpose of academic, scientific, or public research or education.

2.  Voluminous Request.  

FOIA also allows a public body to classify a particular FOIA request as a "voluminous request." A voluminous request is defined as (1) more than 5 individual requests for more than 5 categories of records or a combination of individual requests that total more than 5 categories in a 20 day period; or (2) requiring the compilation of more than 500 pages of records. A public body can notify the requester that his or her request will be treated as a voluminous request, giving the public body more time to respond and allowing the public body to charge for search time and electronic data.  Like the recurrent requester, however, news media are exempt from this provision of FOIA when the purpose of the media's request is as set forth above.

3.  Commercial Request.  

A commercial request is defined as a request for information that is to be used for "sale, resale, or solicitation or advertisement for sales or services." The news media are exempt from this definition when the purpose of the media's request is as set forth above.

4.  Fee Waiver or Reduction.

FOIA allows a requester to ask for a fee waiver or reduction. In its request for a fee waiver or reduction, the requester is required to show that the waiver or reduction is in the public interest, defined as "the principal purpose of the request is to access and disseminate information regarding the health, safety and welfare of the legal rights of the general public and is not for the principal purpose of personal or commercial benefit."  FOIA states that the commercial benefit factor does not apply to news media, although the media must still show the "principal purpose" factor.  As discussed in a previous blog post, the decision whether to grant a fee waiver or reduction is entirely within the discretion of the public body. 

5.  Exemption for GIS and Similar Data.

FOIA contains an exemption for GIS data and other designs, drawings and research data obtained or produced by a public body when disclosure could reasonably be expected to produce private gain or public loss.  The GIS exemption does not apply to requests from the news media, however. 

Post Authored by Julie Tappendorf


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