19 February 2002. Add letters among DoJ and [Omitted] and American Lawyer Media.
16 February 2002. Thanks to J.
by [Omitted] mikerav@mindspring.com
I am a reporter who works full time for a well-respected national news organization in the Washington, DC area. My news organization publishes more than 25 national and regional magazines and newspapers, primarily in the area of business and law, and at least two (Legal Times and The National Law Journal) primarily devoted to the activities of the justice system and of federal government agencies.
Last year I learned that the Department of Justice Office of Legislative Affairs (DOJ OLA) provided weekly legislative activity (i.e. DOJ lobbying) reports to the Office of the Attorney General. These reports are usually 2-3 pages in length.
I asked for a few of these reports under the Freedom of Information Act; those were provided in their entirety. Then I sent a letter, again citing FOIA, and requested a couple of years worth of these reports (still only a couple of hundred pages in all). Soon afterward, the roof fell in.
The news organization I work for routinely reports on Justice Department activities in several magazines and newspapers. Nevertheless, DOJ decided that I am no longer a representative of the news media. As a result, they declined to process our request without our payment of hundreds or thousands of dollars in search fees. Under the FOIA law, reporters should not be charged any search or review fees.
I found out soon afterward what had happened. A small office in DOJ called the Office of Information and Privacy runs training seminars for government FOIA managers in a variety of agencies. At one training session in November, 2001, the question came up of how to handle troublesome requests, including my request for legislative weekly reports to the Attorney General. The DOJ representative said that they were going to deny my status as a representative of the news media, despite the fact that I work full time for a national news organization and actively cover agency matters.
I learned this from a FOIA Manager who was in attendance at the seminar, and who also spoke to the group criticizing this decision. This manager told me that he thought their decision-making was highly improper.
Despite letters to the DOJ from the editor in chief of our news organization, as well as inquiries from our company General Counsel, the Justice Department is standing firm and suppressing the release of these reports by insisting that a reporter is not a reporter.
The Justice Department is now considering spreading this technique of hiding government documents to other agencies. If it is not halted now, this approach could keep reporters from learning about the activities of the government. This matter is too important to keep within the confines of a newsroom.
Apparently these documents which I requested are highly embarrassing or sensitive, since they are taking such extraordinary steps to prevent their release.
If I withdraw my request for these documents, which date back at least as far as the mid-1980s, they will undoubtedly be shredded under the Justice Department's document destruction schedules.
What can you do about this?
FIRST of all, these reports should be requested to prevent their immediate shredding. Once records are requested, the agency is obliged to retain the records until the request has been processed.
If anyone else is interested in these reports, you can request them, specifying the years that you are interested in , by sending a letter simply mentioning the Freedom of Information Act, and asking for
THE OFFICE OF LEGISLATIVE AFFAIRS WEEKLY REPORTS TO THE ATTORNEY GENERAL FOR THE YEARS XXXX - XXXX. (as of last month, they had these reports going back at least 15 years)
to:
Office of Legislative Affairs -- Requests for Office of Legislative Affairs records should be addressed to:
Melanie Ann Pustay, Deputy Director
Office of Information and Privacy
Suite 570, Flag Building
Department of Justice
Washington, DC 20530-0001PHONE: 202: 514-FOIA
FAX: 202-514-1009
What lobbying activities are described in these reports that the Justice Department is willing to go to such great lengths to hide?
SECOND, you can contact the Office of Information & Privacy and ask them why they are squelching the release of these records.
If you would like any further information, you can contact me at 202-828-0328. I will provide copies of the relevant correspondence upon request to anyone from a newsroom or public interest or advocacy organization.
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[4 pages.]
Telephone: (202) 514-3642 |
U.S. Department of Justice
Office of Information and Privacy Washington, DC 20530 JAN 15 2002 |
|
| Mr. [Omitted] American Lawyer Media 1730 M Street, NW Suite 802 Washington, DC 20036 |
Re: OLA/02-R0174 MAP:TSW:APM |
Dear [Omitted]:
This is to acknowledge receipt of your Freedom of Information Act (FOIA) request dated October 18, 2001 in which you requested Office of Legislative Affairs (OLA) weekly memoranda to the Attorney General from January 1, 1992 to December 31, 1995. For your information, because of interrupted mail service, this Office did not receive your request until December 8, 2001, This response is being made on behalf of OLA.
You have requested expedited processing of this request, Your letter does not indicate the basis on which you seek such treatment, Requests will be taken out of chronological order based on the date of receipt and given expedited treatment only when it is determined that they involve: (1) circumstances in which lack of such treatment could reasonably be expected to pose an imminent threat to the life or safety of an individual; (2) an urgency to inform the public about an actual or alleged federal goveniment activity, if made by a person primarily engaged in disseminating information; (3) the loss of substantial due process rights; or (4) a matter of widespread and exceptional media interest in which there exists possible questions about the government's integrity which affect public confidence. See 28 C.F.R.§ 16.5(d)(1) (2001). This Office makes the determination regarding the first three categories and the Department's Director of Public Affairs makes the decision regarding the fourth category. See id. § 16.5(d)(2001). Requesters seeking expedited processing are required to submit a statement explaining in detail the basis for their request for expedited processing. See id. § 16.5(d)(3). This statement must be certified to be true and correct. See id. You have not provided such a statement. As a result, this request for expedited treatment is not properly made. Once the required certified explanation of the basis for seeking expedited processing is piovided, we will make a decision under the appropriate standard.
This is the fourth request we have received from you on this topic. Your first request dated March 14, 2001 (OLA/01-R0512) actually sought "legislative accomplishment reports." We advised you that we were unable t olocate such reports, but that we had located OLA's weekly memoranda to the Attomey General and we provided you with 100 pages of such memoranda dating from September 18, 2000 to May 15, 2001. You subsequently made a request on October 3, 2001 for OLA's weekly memoranda to the Attorney General from May 22, 2001 to October 3, 2001 and from January 1, 1996 to September 11, 2000 (OLA/02-R0062). Your next request dated November 4, 2001 sought OLA's weekly memoranda to the Attorney General from January 1, 1988 to December 31, 1991 (OLA/02-R0119). In this present request you are seeking these records from January 1, 1992 to December 31, 1995. Thus, you are seeking OLA weekly memoranda for the last thirteen years. You stated in your October 3, 2001 letter that you. "are willing to waive the '100 pages at no charge' for [your] fee category since [your] earlier requested and received 100 pages of this type of record." Please be advised that for fee purposes, your four requests for OLA weekly memoranda are being treated as one request.
Additionally, in your letters you assert that you are a representative of the news media for fee purposes. However, we have performed an extensive electronic search but have been unable to locate any instances in which you used materials obtained through the FOIA for publication for news purposes. Although your employer is a news media entity, you have been making FOIA requests to this Office for many years, in your individual capacity and as an employee of news organizations, but you apparently have never actually published an article based on any materials we have provided to you. Thus, I have decided to deny you media status for fee purposes for this request. See National Sec. Archive v. DOD, 880 F.2d 1381, 1387 (D.C. Cir. 1989) ("A representative of the news media is, in essence, a person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience.")
Further, in your October 3, 2001 letter, you requested a fee waiver. A fee waiver is appropriate when "disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester." 5 U.S.C. § 552(a)(4)(A)(iii). I considered six factors in making my determination as to whether your request satisfies this statutory standard: (1) whether the subject of the requested records concerns "the operations or activities of the government;" (2) whether the disclosure is "likely to contribute" to an understanding of government operations or activities; (3) whether disclosure of the requested information will contribute to the understanding of the general public; (4) whether the disclosure is likely to contribute "significantly" to public understanding of government operations or activities; (5) whether the requester has a commercial interest that would be furthered by the requested disclosure; and (6) whether any such commercial interest outweighs the public interest in disclosure. See 28 C.F.R. § 16.11 (k).
Based on the information you have provided, I have decided to deny your request for a fee waiver. In reaching my conclusion I have analyzed the above factors as they apply to the circumstances of your request. While the records you seek do concern the operations or activities of the Department of Justice and you do not appear to have an overriding commercial interest in the records, other relevant factors have not been met.
To qualify for a fee waiver, you must make an adequate showing that a release of the information to you is in the public interest. The releasable portions of the OLA memoranda must be meaningfully informative in relation to the subject matter of the request. In many instances, the information being released in these records are already in thc public domain, just not in this particular format. Thus, much of the releasable portions of the reports would not be meaningfully informative. Also, disclosure of the requested material must contribute to the understanding of the public at large. This factor requires that the requester demonstrate with particularity his ability and intent to disseminate the information to the public. See, e.g., McLellan Ecological Seepage Situation v. Carlucci, 835 F.2d 1282, 1286 (9th Cir. 1987) (denying fee waiver request for public interest group and stating that "[e]ven if requesters have ability to convey information to the public, they give no details about their intention to do so"). We have discerned no intent by you to actually disseminate this information. Without further information from you about your planned method of dissemination and your firm intent to do so, given your history of not actually disseminating information released to you, I cannot grant your fee waiver request at this time.
Accordingly, Department of Justice regulations permit us to provide you, who we consider for purposes of this request to be a non-commercial, non-media requester, with two hours of search time and 100 pages of records per component without your incurring search or duplication charges. See id. § 16.11 (d). As inentioned, above, you have previously agreed to waive your 100 free pages. Beyond the two hours of free search time per component that you are entitled to, you will be required to pay for additional search time incurred at the cost of $28.00 for each hour of search time spent by professional personnel in obtaining these records. See id. § 16.11 (c)(1)(ii). Duplication fees will be assessed at ten cents per page. See id. § 16.11 (c)(2).
For your information, two hours and twenty-two minutes of search time has been cornpleted to date. Search fees for the additional twenty-two minutes of search time total $10.27. We estimate that approximately six and one-half hours will be required to complete the search for your requests and that we will locate approximately 2600 further pages, Thus, the estimated fee for the processing of the remainder of this request is $182 for search time and $260 for duplication fees. Additionally, given the nature of these records and the time it takes to review each entry, we estimate that it could take as long as one year to cornplete the processing of yotir request.
In cases where the anticipated fees are in excess of $250 we are authorized to require an advance payment. See id. § 16.11 (i)(2). Thus, if you would like us to continue processing your request, please forward a check or money order for the total anticipated amount of $452.27, made payable to the United States Treasury, to the Office of Information and Privacy, Flag Building, Suite 570, Washington, DC 20530-0001. Please note "OLA/02-R0062, OLA/02-R0119, and OLA/02-R0174," on your check or money order and your envelope. If we have not received your payment for the anticipated fees owed within thirty days from the date of this letter, we will assume that you are no longer interested in us processing the remainder of your request and we will close your files in this Office. You may wish to narrow the scope of your request to reduce the applicable fees or specify a particular amount you are willing to pay. If you have any questions you may contact Amy McNulty, the analyst processing your request, at (202) 616-5484.
If you are not satisfied with my action on your request for media status or your fee waiver request, you may administratively appeal by writing to the Co-Director, Office of Information and Privacy, United States Department of Justice, Flag Building, Suite 570, Washington, D.C. 20530-0001, within sixty days from the date of this letter. Both the letter and the envelope should be clearly marked "Freedom of Information Act Appeal."
Sincerely,
[Signed]
Melanie Ann Pustay
Deputy Director
[2 pages.]
AMERICAN LAWYER MEDIA
Aric Press
Editorial Director of
National Publications
105 Madison Avenue
New York, NY 10016
(212) 313-9044
Fax: (212) 481-7903
800.537.2128
www.americanlawyermedia.com
January 18, 2002
United States Department of Justice
Attn: Melanie Ann Pustay
Office of Information & Privacy
Washington, DC 20530
Fax: 202-514-1009
Dear Ms. Pustay:
We are in receipt of your letter dated January 15, 2002, in which you declined to classify a request filed by one of our reporters as a request filed by a "representative of the news media" for fee purposes, and thus you anticipate charging "search" fees for this request or any related requests,
[Omitted] has been employed in a newsgathering capacity by American Lawyer Media full-time since October 30, 2000. He holds the title Director of Database & Computer-Assisted Reporting. American Lawyer Media is the nation's largest legal journalism company. We publish legal newspapers in nine cities, six national magazines, a weekly national newspaper, plus dozens of newsletters and books. Effective January 1st, [Omitted] works out of our offices in Washington, DC, where Legal Times is published.
The primary thrust of his job is to support the news reporting activities of our publications by supplying necessary data and records to editors and reporters, and assisting on any data-intensive projects. He works on projects for many of the publications in the American Lawyer Media family. This includes several of our national magazines including The American Lawyer, Corporate Counsel, IP Worldwide, and Minority Law Journal; as well as for ALM's weekly newspaper, The National Law Journal. As needed, Michael also works for several of our regional publications such as The New York Law Journal, Legal Times, and the Philadelphia Intelligencer. In the context of his position, he does not typically receive a credited byline when his work is of a data-gathering or supporting nature.
However, his work is essential to news reporting projects undertaken by our news organization. The presence or absence of an individual byline should not be used as the criteria to assess whether a request belongs in the news media fee category. Under the court decision you cite and from which you quote (National Security Archive v. DoD), "a representative of the news media is, in essence, a person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience."
The work being done by the staff of our news organization fits that description precisely, and [Omitted] is an integral part of the quantitative and factual news gathering necessary to make certain stories accurate and fair. Any requests he files on behalf of our news organization fall into the "news media" category described above. In this case, since the documents he requests relate to legislative matters at the Department of Justice, the agency tasked with establishing executive branch legal policy in the United States, his request for such weekly reports are certainly in that category,
Please respond to this letter promptly.
Sincerely,
[Signed]
Aric Press
Editorial Director of National Publications
American Lawyer Media
CC: Allison Hoffman
Vice President Corporate Affairs and General Counsel
Telephone: (202) 514-3642 |
U.S. Department of Justice
Office of Information and Privacy Washington, DC 20530 FEB 11 2002 |
|
| Mr. Aric Press American Lawyer Media 105 Madison Avenue New York, NY 10016 |
Re: OLA/02-R0174 MAP:TSW:APM |
Dear Mr. Press:
This responds to your letter dated January 18, 2002, which was received in this Office on February 1, 2002, pertaining to our denial of [Omitted]'s request to be treated as a "representative of the news media."
In your letter, you state that [Omitted] is employed by Anierican Lawyer Media and that he supports the "news reporting activities" for several of your publications. You also state that "his work is essential to news reporting projects undertaken by" American Lawyer Media. Yet, you did not provide any examples of works published by your organization which utilized information requested by Mr. Ravriltzky under the Freedom of Inforination Act (FOIA). Moreover, in order for us to determine whether Mr, Ravnitzky is acting as a "representative of the news media" for purposes of this FOIA request -- one which seeks thirteen years of Office of Legislative Affairs weekly menioranda -- we must be provided with sufficient information about its intended use of the particular records he has requested. Your letter does not demonstrate any intent to use the requested material for publication in any of your organization's media outlets, Instead, you make only the general assertion that because these documents "relate to legislative matters at the Department of Justice" [Omitted]'s request is "certainly" made as a representative of the news niedia." Without more specific information concerning Mr, Ravnitzky's, or Aincrican Lawyer Media's, intended use of the documents responsive to this request I cannot reach the same conclusion.
If you can provide me with the additional, specific information referred to above to support what is, in effect, your request that I reconsider my decision concerning Mr. Raviiitzky's fee category, please feel free to do so. I will evaluate any such additional information in conjunction with your January 18, 2002 letter.
As I assume you know, [Omitted] has since withdrawn his requests for expedited processing and a fee waiver. In addition, the estimated duplication fees make up $260 of the total fee we quoted in our January 15, 2002 letter to [Omitted]. All requesters are charged duplication fees. See 28 C.F.R. § 16.11 (c)(2) (2001.), Because this fee is over $250, we are authorized to require an advance payment, and have done so. See id. § 16.11(i)(2). Thus, If [Omitted] would like us to continue processing his request, he is still responsible for an advance payment of the $260 duplication fee, regardless of our detemination of his status as a media requester.
Sincerely,[Signed]
Melanie Ann Pustay
Deputy Director
cc: [Omitted]
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