Toll Gates to Public Information: Establishing a Broad Interpretation of the FOIA's News Media Fee Waiver Provision

Abstract

The Freedom of Information Act allows for a waiver of certain fees if a requester is a "representative of the news media." The tortured history of the term "representative of the news media," however, has made benefiting from the waiver unlikely, unless one can show that he or she is a bona fide member of a news outlet. This comes despite amendments to the FOIA passed in 2007, which were intended to ensure that “anyone who gathers information to inform the public, including freelance journalist and bloggers, may seek a fee waiver when they request information under FOIA.”

This paper traces the development of this nearly thirty year old waiver provision in the legislature, the courts, and the executive branch. It makes the argument that both the judicial and executive branches of the government have failed to follow the direction of Congress toward a broad interpretation of the fee waiver provision and suggests how this failure can be remedied. It concludes that the availability of fee waivers is not determined by the label applied to the requester but by the function the requester serves. If that function is a journalistic one, the requester is entitled to a waiver under the FOIA.

Keywords: Freedom of Information Act, fee waivers, legislative history, FOIA, blogger, journalist, Congress, representative of the news media