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Thursday, May 18, 2017

PAC Finds 3 Websites Are Not “News Media” Under FOIA

We reported last week on an advisory opinion from the Public Access Counselor of the Attorney General (PAC) that found a local blog to be a member of the “news media’ under FOIA.  A reader of this blog forwarded two other recent advisory opinions where the PAC found websites were not be members of the “news media." We wanted to share these advisory opinions because they further guidance to public bodies on the factors they should consider when determining if a blog or other website functions like a member of the “news media” for purposes of FOIA.

In 2016 PAC 4469, a municipality had deemed two websites to be recurrent requesters under FOIA. The websites claimed they were exempt from the "recurrent requester" provision of FOIA because they were news media since they regularly published findings from FOIA requests with commentary for residents. The websites argued they were one of the only ways for residents to obtain this type of news because there was no local newspaper in the area. The websites furnished copies of their postings, a copy of press credentials issued to their publisher, and documentation that their publisher had a degree in mass communications as evidence that they should be considered part of the “news media.”

The municipality rejected the websites' arguments after viewing the websites’ credentials and finding that they were not members of the “news media” under Section 2(f) of FOIA, so were not exempt from the definition of “recurrent requester” under Section 2(g) of FOIA.

The PAC held that, in order for a self-published website to be considered “news media” under FOIA, the website must do more than simply disseminate information, stating its reasoning as follows:

Merely disseminating information or criticism electronically through a website, or via e-mail, does not meet the statutory definition of “news media.” If it did, then any person who chose to post an opinion or comment on a matter of public interest electronically would become a news medium, which was clearly not the intent of the General Assembly when it enacted the exception.

The PAC also reiterated the rule that an individual or entity that self-publishes information on the internet must demonstrate some adherence to recognized journalistic standards such as editorial oversight or the creation of original content in order to be considered “news media” under FOIA.

The PAC noted that the websites’ content consisted of links to public records obtained through FOIA requests and court files, and links to other news publications.  The PAC also cited the fact that the websites did not post original content, nor did they credit particular authors for the material that was posted.  Due to the lack of editorial oversight and original content, the PAC found that the websites did not resemble traditional news outlets. The PAC also found that the press credentials obtained by the websites’ publisher did not demonstrate a connection with traditional news media, and that the publisher’s degree in mass communications did not, by itself, demonstrate that the publisher was a part of a news outlet.  As such, the PAC concluded that the websites were not members of the “news media” under FOIA and were not exempt from being designated as recurrent requester.

In 2015 PAC 34653, the PAC found a crime mapping website was also not a member of the “news media” under FOIA. The website had requested that a county sheriff’s office send the website crime data on a daily basis.  The county sheriff refused, but offered to send the website crime data on a monthly basis instead.  The website declined, and began submitting FOIA requests on a daily basis.  Because of these numerous requests, the sheriff’s office designated the website as a recurrent requester.  The website appealed to the PAC arguing that they were a member of the “news media” exempt from being classified as a recurrent requester.

The website claimed it provided highly localized crime news data from a variety of sources, that its data had been published in police blotter sections of print news papers, that it had over a million subscribers to its personalized crime alert email service, and that it regularly provided crime data to other media organizations. The website argued that it was news service because it provided free crime information to visitors, sold crime data to corporate media clients, and because they edited the data sent to its subscribers by classifying the crimes in the email updates.

The PAC once again stated that simply disseminating information electronically does not meet the definition of “news media,” and that there must be some adherence to recognized journalistic standards similar to that of traditional media.  The PAC found that the personalized crime updates that the website sent to its subscribers was evidence that the website existed for a commercial purpose, rather than existing to disseminate news of interest to the public at large. The PAC also found that the essential product of the website was the compilation of data, as opposed to original content compiled by journalists using recognized journalistic standards. The PAC held that the website was simply repackaging existing data for particular users based on their location, and therefore lacked the essential components necessary to be considered “news media” under FOIA.

Post Authored by Kurt Asprooth, Ancel Glink


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