You're not the public, says WMATA

Transit

You're not the public, says WMATA

by Michael Perkins • January 5, 2009 12:07 pm

"The websites [infosnack.org and greatergreaterwashington.org] do not serve to provide information to the general public, therefore we find that you are not a representative of the news media."

Photo by inju on Flickr.

So says WMATA's chief of staff, Shiva Pant, in a letter denying my appeal of their October decision that blogs aren't "news media." I asked for reduced information request fees under the "Member of the News Media" and "Public Interest" sections of WMATA's Public Access to Records Policy, or PARP. The PARP derives from the federal Freedom of Information Act (FOIA), and according to the letter, "WMATA interprets and applies the PARP consistent with federal FOIA law and practice."

I request information from WMATA to write articles about their activities. Most of my articles come from their press releases, board and RAC meeting reports, and information posted on wmata.com. I also request information from staff contacts. More recently, WMATA staff have initially declined some of my requests, and directed me to use PARP. For example, I recently analyzed bus reliability data. I originally asked the press office, who directed me to the PARP office. This process can take months, and if the information requires extensive searching, can be expensive. Ordinarily, the person requesting the information must pay WMATA's costs.

Like federal FOIA, PARP allows members of the news media to obtain documents without paying for search time. For some recent information requests, I invoked the member of the media provision based on my writing for my own blog as well as Greater Greater Washington. After WMATA denied it, I submitted the matter to administrative appeal.

WMATA based its decision on an interpretation of outdated federal law. They cite two cases, Judicial Watch, Inc. v. United States Department of Justice (No. 99-2315, 2000 U.S. Dist. LEXIS 19789 *9-12 (D.D.C. August 17, 2000) and 185 F. Supp. 2d 54, 59
(D.D.C. 2002)) and Electronic Privacy Information Center v. Department of Defense, 241 F.Supp. 2d14 (D.D.C 2003), both denying "news media" status to organizations. WMATA also seems to suggest, though doesn't explicitly say, that they consider the readership here at Greater Greater Washington too small to be considered the "general public". However, at the end of 2007, the Open Government Act of 2007 clarified the definition of a member of the news media for FOIA, and thus to PARP, as:

any 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.

This new law, which WMATA apparently never considered, acknowledges that some members of the media need information that is of interest to only a "segment" of the general public, and only needs to reach "an audience." There's no set size needed for an audience to count as "the general public" in the original FOIA law, and this act makes that explicit.

WMATA claims that "a representative of the news media must disseminate the information not merely make it available." But the new law also clarifies that "disseminating" information includes the Web:

These examples [newspapers and broadcast radio or television] are not all-inclusive. Moreover, as methods of news delivery evolve (for example, the adoption of the electronic dissemination of newspapers through telecommunications services), such alternative media shall be considered to be news-media entities.

In fact, the EPIC case ruled that EPIC was a member of the news media, despite using new technology and publishing its newsletter to a small segment of the general public. WMATA seems to believe that because EPIC emailed its newsletter and Greater Greater Washington simply posts information on the Web, it does not count as "disseminating." This is wrong on two counts. First, Greater Greater Washington does email posts daily to many subscribers; you can sign up for that service here. And second, splitting hairs between email and the Web as delivery mechanisms simply based on which party initiates the Internet connection completely misses the point of the Open Government Act's insistence that the news media is not tied to specific technologies.

Judicial Watch simply posted documents obtained through FOIA on its Web site, to encourage journalists to write about them, instead of writing articles itself. The Open Government Act emphasizes, which a court first wrote in 1989, that the member of the news media must "use editorial skills to turn the raw materials into a distinct work." I create new works (articles) based on the information, using my editorial skills, and disseminate that new work though Greater Greater Washington.

Why is this all important? Access to information is vital to good reporting, whether through more traditional media like television, radio and periodicals, or through newer media forms like blogs and news websites like Greater Greater Washington. The Washington Post and the DC Examiner both have beat reporters working on transit issues. There's a limit to the amount of coverage they can provide, whether from space in the newspaper or reporter or editor time. As Scott Gant, author of "We're All Journalists Now" explains on this video, blogs and news websites cover issues more deeply than more generalized news outfits could. By providing access to information, whether through press passes, access to press amenities, granting interviews, or through FOIA and its equivalents, government agencies enable news to become effective reporters on government operations.

30 comments

Tags: bureaucracy, law, PARP, press, WMATA

WMATA says blogs aren't news media (Oct 13, 2008)
Metro board discussing PARP fees in secret (Nov 5, 2009)
My wish for the holidays: development review filings online (Dec 22, 2008)
Let's talk Sarles (Jan 24, 2011)
Emails with links a recipe for WMATA site overload (Feb 16, 2010)

Michael Perkins blogs about Metro operations and fares, performance parking, and any other government and economics information he finds on the Web. He lives with his wife and two children in Arlington, Virginia.

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WMATA's inability to even do the most basic things competently explains why we will probably never have even half the transit system we should have in our lifetimes. Sorry to hear this, Michael.

by Nate on Jan 5, 2009 12:10 pm • link • report

WMATA needs a full housecleaning. Its bureaucracy is worse than most governments.

by SG on Jan 5, 2009 12:34 pm • link • report

You should contact EPIC, and maybe they will help you challenge this case. I don't think they are the right outfit on this matter, but another org. that might be a resource is Ralph Nader's Center for the Study of Responsive Law. I could try to get you an audience with Ralph Nader (no guarantee). Let me know.

by Richard Layman on Jan 5, 2009 12:40 pm • link • report

If WMATA is having a budget shortfall, it rather explains why they aren't inclined to do more work for free. (I'm not saying they're right.)

by Steve on Jan 5, 2009 12:43 pm • link • report

They're probably still mad at you about the Google thing. Keep up the good work!

by mark on Jan 5, 2009 12:52 pm • link • report

Your next step is to file a formal FOIA request, right? Because invoking FOIA automatically sets the clock running. They don't have to give you the info for free, but they do have to tell you why they won't respond, which would be interesting in and of itself.

by monkeyrotica on Jan 5, 2009 12:53 pm • link • report

monkey: He did file one. That's what PARP is (the WMATA FOIA). They denied his request to be treated as media, and said why; he appealed, and they rejected it, also saying why. But their reasons why ignore the new law, and were probably wrong under the old law too.

mark: This predated the Google thing. In fact, one of the original PARP requests that Michael made, where he requested media status, was about why they haven't done Google Transit.

by David Alpert on Jan 5, 2009 12:55 pm • link • report

Hmm...

If they were smart they would set some threshhold on readership/page hits/something so that they could at least ignore the really small blogs/websites that really are not worth the effort.

That said, no one has ever accused the management/bureaucracy of being smart/efficient..

I think this reaction on their part is pretty ridiculious...

by Daniel on Jan 5, 2009 1:06 pm • link • report

The Freedom of Information Act (FOIA) needs to be amended so that more information is simply available on the web without anyone having to file a request. At the very least, budgets and spending data should be immediately available - imagine all the frauds that would be avaoided if members of the public could keep a closer eye on our governments' activities.

Re WMATA, the issue boils down to one of cost. The rule seems designed to avoid spending public money without public gain. I agree the GGW serves the public, but WMATA is rightfully wary of drawing a line that says some blogs serve the public while others don't. What are the actual rates they charge for providing data? Are the rates reasonable? It should cost a $1 DVD and 10 minutes of time to dump an entire database.

by Michael on Jan 5, 2009 1:08 pm • link • report

Back in 2003, I got a database from Metro showing trips between stations. It was a thrill to query. I published stats in the Dupont Circle Update; see 9th paragraph of http://www.dupontcircle.biz/dcu/dcu070.htm

My favorite revelation: Farragut West is the 4th-least-travelled-to destination from Dupont, which makes total sence, since you'd go two stops on the red line then two stops on the blue/orange, just to end up a few blocks from where you started. Still, for that year, 10,089 people rode that trip instead of walking!

by Michael on Jan 5, 2009 1:22 pm • link • report

Sounds like it is time for a petition! ;)

by Chris S on Jan 5, 2009 1:38 pm • link • report

@ Michael: WMATA is rightfully wary of drawing a line that says some blogs serve the public while others don't.

Correct. How 'bout they stop filing paper in cabinets, and just start publishing *all* internal reports publicly on a decently searchable online database. Saves space, trees and the entire public can look up whatever they want. Sounds like a triple whammy to me.

IMHO, this is the way any (semi-)government organization should work.

by Jasper on Jan 5, 2009 2:32 pm • link • report

If you've exhausted your administrative appeal, I bet there's a court somewhere that has juriisdiction. It would help a lot, though, if you gave the Court your traffic numbers or otherwise got them in the record. A lot of blogs have higher circulations than newspapers.

by rumpole on Jan 5, 2009 2:42 pm • link • report

rumpole: I bet there's a court somewhere that has juriisdiction.

GGW has two options: the DC Superior Court (at 5th & Indiana NW) or the DC District Court (at 4th & Indiana NW)

by tom veil on Jan 5, 2009 2:52 pm • link • report

That's absurd. The WMATA just shows how out of touch it is by proclaiming that GGW and similar sites "do not serve to provide information to the general public." Someone bring these folks into the 21st Century. As flawed as NYC's MTA is, they've been more willing to deal with bloggers. WMATA should take a lesson.

Time to FOIA them.

by Benjamin Kabak on Jan 5, 2009 2:54 pm • link • report

Why exactly does the FOIA have a special exception for "Journalists" that it doesn't have for anyone else? It seems that a workable system which doesn't discriminate based on some arbitrary judgment should charge everybody a fee.

by Squalish on Jan 5, 2009 3:17 pm • link • report

I often think people are too hard on this agency, but then I see crap like this and for a long time I lose all will to defend this agency against any vitriol. WMATA often does things like this that are stupid beyond belief and it makes me understand why people are wary of absolutely anything that comes out of this agency.

by Omari on Jan 5, 2009 3:18 pm • link • report

@ Squalish: The FOIA seems to be written in a time when everything was still on paper. Press, reports, everything. To protect institutions from being hammered with requests for paper copies of all kinds of information (and the related cost of an old guy going into an dusty archive, making photocopies of single sided and double spaced documents, and sending the documents), only journalists got free access. At the time (say the 1840s), this was not a bad idea.

However, in a time when virtually every document is digital, and can be found and (digitally) sent within minutes, these arguments don't hold up anymore. Especially, since every document *could be posted online for free anyway*. Hence, the dismay here on WMATA's stand. However, the law is the law. And why would WMATA break the law. After all, they reserve the right to peek into every users' bags which is not at all a trampling of the constitution.

Ok, down boy, down! Enough sarcasm.

by Jasper on Jan 5, 2009 3:27 pm • link • report

Um, Federal FOIA doesn't apply. WMATA is not a federal agency, it's a regional transit agency. While PARP may draw from FOIA, they are not bound by it.

By the way, federal FOIA was created in 1966....not the '1840s'. The Electronic Freedom of Information Act Amendments of 1996 (E-FOIA) is a followup that addresses the changing nature of storage mediums.

DC FOIA has one that relates to city agencies, as do VA and MD.

by A on Jan 5, 2009 4:18 pm • link • report

The only answer is to change the PARP. WMATA is not DoD or the CIA, or any other agency sitting on truly confidential data. WMATA should make everything public except for things that infringe on personal privacy rights, like individuals' payroll information (except for highest-level managers' pay and perks).

by Chuck Coleman on Jan 5, 2009 8:32 pm • link • report

I just got back a PARP request response from WMATA. I'll be writing up an article soon, but it looks like 80+% of people are just PARPing their Smartrip card records. Most of the rest are requesting reports from bus and train incidents. There are a few interested in contracts and spending, and a couple of requests interested in Marion Barry's suspicious bus accident.

By the way, under the WMATA compact, everyone's salary at WMATA is public knowledge, as long as they make more than $10,000. There were at least four requesters seeking and obtaining that information.

The one request that I have had denied was time-based ridership information (e.g., how many people are entering and leaving the system at various times of day). WMATA considered that a security threat and refused to release it. I eventually got the information through a staff contact who agreed to give it to me on condition that I divide the actual numbers by the daily average.

by Michael Perkins on Jan 5, 2009 10:30 pm • link • report

If you don't have a press/media pass issued by the DC government, then the gubment (and likely gubment-funde authorities) doesn't have to recognize you as a bonafide media outlet. I'd suggest calling DCRA or MPD or whoever handles those credentials to apply for one.

by deesee on Jan 6, 2009 9:21 am • link • report

This does seeem sortof petty on WMATAs part. Not really the right tone for an agency that spends a crapton of taxpayer money.

by Hillman on Jan 6, 2009 1:26 pm • link • report

I personally think "lawyering up" and continuing that battle is a worthy endeavor, as that will hopefully change WMATA's precedent on these questions and benefit other journalists. I bet the folks at the Independent Media Center would be interested in helping out in some way.

But, if that seems like too much effort to take on, you could also consider upping your credentials in some capacity. Getting a press pass issued by a different agency probably won't help because they can and do have different standards. But joining some sort of journalists association (like the society of professional journalists) might be helpful, and might give you the option of filing the PARP request under different auspices.

by RyanA on Jan 6, 2009 1:26 pm • link • report

Agree that FOIA and related laws are outdated, based are they are on the paper-bound, 'information scarcity' model.

The *default* for all government agencies should be to make all records publicly accessible on the web.

Regrettably, governments will NEVER make such a reform, because the way they currently do business would never stand up to such scrutiny.

by Jay Reeder on Jan 6, 2009 5:00 pm • link • report

What if WMATA charged for the time to satisfy the FOIA request and not only sent it to the requester but put into the FOIA store.

Then anyone who wanted the information could pay for it at a rate (you pick a number) that would reimburse the original requester with "FOIA bucks". If the request had wide-spread appeal the original requester would build up "FOIA bucks" to ask more questions or give to someone else.

by Tom on Jan 9, 2009 2:33 pm • link • report

Tom, that's a neat idea, but (a) that's not how the law is written, and I'm more interested in getting WMATA to comply with the law than to go lobby Congress to go change the law, and (b) the point of the member of the media provision is you want to get your information out to people who will go to the effort of informing the public. If I want to build up "FOIA Bucks", then I've got to tease people into purchasing the same information, but without releasing any of the information because then they wouldn't bother to go and buy it.

by Michael Perkins on Jan 9, 2009 2:47 pm • link • report

Kinda gotta agree with WMATA on this one.

GGW has become much more of an op-ed blog than a news blog.

by Gary Fisher on May 9, 2012 3:37 pm • link • report

Have you been in touch with the Citizen Media Law Project? They've helped Homicide Watch out before. Here's the link: http://www.citmedialaw.org/ And feel free to contact me if you want an introduction.

by Laura Amico on May 9, 2012 3:44 pm • link • report

Hmmm. I can't think of any media that has given as much coverage or gone into as much detail as Nick Partee's articles here on GGW and the Arlandrian.

by Kevin Beekman on May 9, 2012 4:05 pm • link • report