Posts about FOIA

As Michael explained 3 years ago, WMATA is basing this decision on a 2 DC district court cases, Judicial Watch, Inc. v. United States Department of Justice and Electronic Privacy Information Center v. Department of Defense, where courts denied "news media" status to these organizations in 2000, 2002 and 2003.

WMATA's Public Access to Records Policy (PARP) says that it follows the federal FOIA, meaning that this law clarifying FOIA also applies to WMATA's PARP.

The WMATA denial, which just copies the previous one from 2009, claims that, "A representative of the news media must itself disseminate the information not merely make it available."

But, as Michael Perkins notes, the Open Government Act of 2007 clarified a broader interpretation of "news media" 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.

And:

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.

Greater Greater Washington "disseminates" information via the web, email, Twitter and other means. Some people, like the subscribers to our daily email, do get it "delivered" directly (though electronically), while others request the information via the web. Newspapers today also do the same; some people get a copy on their doorstep, others get a daily email, while others go to the website.

Back in 2009, the media relations team wasn't sure they should talk to blogs such as Greater Greater Washington, but since then, that group has started to treat us as "news media" and help answer questions that will go into articles. Perhaps they should speak with the legal department.

If you can help us formulate a more detailed legal argument to make to WMATA and, if they don't see the light, pursue the matter in the courts, please email info@ggwash.org.

Here is the full text of their email from Keysia Thom at WMATA:

Dear Mr. Perkins,

This acknowledges receipt of your request for a copy of the survey, results, and weights used by the JCC to determine the fare model for the Metrorail rider survey. This also responds to your request for a fee waiver and requires an advance payment by May 16, or your request file will be closed. Your request is being processed pursuant to the Public Access to Records Policy (PARP), which can be viewed on our website at http://www.wmata.com/about_metro/public_rr.cfm, under the section marked, "Legal Affairs." Generally, we aim to issue decisions on a request for records within 20 working days after the date of receipt of the request.

We note that you requested a fee waiver for search time because you are an author for Greater Greater Washington. Pursuant to federal regulations, a representative of the news media is any person actively gathering news for an entity that is organized and operated to publish or broadcast news to the public. 28 C.F.R. § 16.11 (b)(6) (2012). Examples include television and radio stations broadcasting to the general public, publishers of periodicals that disseminate news to the general public, and freelance journalists who can demonstrate a solid basis of publication through a news organization. Judicial Watch v. United States Dep't of Justice, No. 99-2315, 2000 U.S. Dist. LEXIS 19789 *9-12 (D.D.C. August 17, 2000). Your request consists of a conclusory statement that you are a member of the news media, but does not provide any details about your editorial skills and how you intend to distribute the records to the public at large. We have viewed Greater Greater Washington's website and it appears to be a blog. Judicial Watch, an organization that promotes transparency in government and operates a website that includes news on that topic and its activities (including those reported by the media), has been found not to qualify as a representative of the news media. Judicial Watch v. United States Dep't of Justice, No. 99-2315, 2000 U.S. Dist. LEXIS 19789 *9-12 (D.D.C. August 17, 2000). A representative of the news media must itself disseminate the information not merely make it available. Judicial Watch, Inc. v. United States Dept of Justice, 185 F.Supp. 2d 54, 59 (D.D.C. 2002). For these reasons we have denied your request for a fee waiver under the media category.

...

We estimate that it will cost $261.00 for 3.0 (5 hours of staff time - the first two hours of staff time, which are provided free of charge) to retrieve and review the records that are responsive to your request for exempt material. Please remit a check for the full amount made payable to the Washington Metropolitan Area Transit Authority to my attention by May 16, 2012. The records will be provided as soon as possible after receipt of payment, along with reimbursement of any excess payment or request for additional payment. If we do not receive the payment by May 16, we will close your request file.

I got an out of office reply from Diana Jordan, DDOT's FOIA officer, saying she was out of the office on May 20th. Since it wasn't May 20th any more, I assumed she had forgotten to update the message, and in any event would get the request when she next checked email.

DC law gives the agency 15 business days to respond, including the day they receive the message. That would mean they had to respond by June 10th. On June 9th, I emailed Ms. Jordan to inquire about the request, and she informed me she hadn't received it, but would process it "as of today." I wouldn't have interpreted "the date the request is actually received by the FOIA Officer" to exclude any time the officer wasn't aware of the request due to incompetence or negligence on her part, but perhaps Attorney General Peter Nickles would take that position.

On June 21st, Ms. Jordan sent me a form denial saying there were no records matching my request. In my original request, I had told her George Branyan probably had the documents, so I assume she spoke with him, and he would have known exactly what I was looking for.

But apparently my request had not been worded exactly right, giving her an opportunity to deny the request by narrowly construing the definition of the term "report." I found out that DDOT didn't have the actual report by WMATA on the issue, but that Mr. Branyan had discussed their conclusions and his objections in an email on August 28, 2009.

I therefore submitted a new FOIA request on June 24th for "any email messages sent by George Branyan on August 28, 2009 concerning the Sherman Avenue, NW streetscape project or concerning bus stops on Sherman Avenue, NW." And I asked Ms. Jordan to confirm she received it just to make sure she couldn't conveniently neglect to see it this time. She did.

15 working days from June 24th inclusive is July 15th, but I didn't hear back from Ms. Jordan until July 21st, at which time she informed me that "DDOT is extending the time period in which DDOT will provide you with the public records you have requested. This extension is based on the need to search for, collect and examine the amount of records in order to respond to your FOIA request. [D.C. Official Code] § 2-532(d)."

She now promises to respond by August 2nd. However, 10 more business days from June 24th is not August 2nd but July 29th. Math must not be a strong point at the DDOT legal department. Neither, apparently, is understanding of the law. According to the relevant section of the DC Code:

(d) In unusual circumstances, the time limit prescribed in subsection (c) of this section may be extended by written notice to the person making such request setting forth the reasons for extension and expected date for determination. Such extension shall not exceed 10 days (except Saturdays, Sundays, and legal public holidays). For purposes of this subsection, and only to the extent necessary for processing of the particular request, "unusual circumstances" are limited to:

(1) The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request; or

(2) The need for consultation, which shall be conducted with all practicable speed, with another public body having a substantial interest in the determination of the request or among 2 or more components of a public body having substantial subject-matter interest therein.

I only asked for all emails from a single person on a single day about a specified subject. I only asked for "all" emails because it was clear Ms. Jordan would not give me what I wanted if she could avoid it. Asking one person to look through their email from a single day for messages on a specific subject hardly seems to be "unusual circumstances," and the quantity of records involved hardly "voluminous" compared to most FOIA requests.

It's interesting that Ms. Jordan's explanation of the "reasons" for the extension quoted the section of the code but conveniently removed the words that made it not apply to my request. She doesn't even seem to be claiming that my very narrowly tailored request involves a voluminous amount of records; instead, she's simply rephrasing the law to allow them to get the extension for any quantity of records whatsoever.

I still don't know if I will get an answer by Thursday, the deadline from the actual law, or Monday, the deadline from Ms. Jordan's imaginary view of the law. I don't know if that answer will even contain the information I asked for, or if she'll find some legal excuse to deny the request again.

AG Peter Nickles has argued that the government can't handle all the FOIA request they are receiving and needs extra time. It seems that if they simply complied with the requests instead of spending so much time trying to resist them all, they could probably get through them faster. Ms. Jordan knows exactly what I want, and it's not even going to embarrass DDOT (at least, I don't think so).

She could have simply forwarded me the email in the first place, or at any time since, and been done with it. Instead, she's wasted a lot more of her time. Meanwhile, she's transformed my desire to write an article supporting DDOT in their disagreement with WMATA (assuming the email matched what I'd heard from Mr. Branyan) into an article criticizing DDOT and Mayor Fenty.

These particular bus stops weren't that big of a deal in any event, but the Fenty Administration's dogged resistance to following the FOIA laws is a much bigger deal, and now they've managed to get me as frustrated about this as the other witnesses at Mary Cheh's hearing. This can't be a good outcome for the Mayor.