Posts about PARP

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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."

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WMATA based its decision on an interpretation of outdated federal law.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.

Transit

WMATA says blogs aren't news media

by David Alpert   •   October 13, 2008 2:49 pm

Are blogs journalism? This perennial question generates heated debate around reporter shield laws, press passes, and the Freedom of Information Act. Most non-lawyers would say that some blogs are definitely media (like the NY Times' City Room), and some blogs are really not (like your friend's LiveJournal about what he eats for breakfast each day). The Federal Election Commission says blogs are media.

But WMATA's lawyers think blogs definitely aren't news media, even blogs like Greater Greater Washington. Why? Because they claim we don't "publish or broadcast news to the public." To WMATA's lawyers, "publish" means "disseminate the information, not merely make it available," citing Judicial Watch, Inc. v. United States Department of Justice, 185 F.Supp. 2d 54, 59 (D.D.C. 2002), and "disseminate" requires more than simply posting information on a Web site where many people go to read about newsworthy information.

WMATA's Public Access to Records Policy (PARP), their equivalent of FOIA, lets news media (among others) receive a waiver from having to pay for copying of records. GGW contributor Michael P filed some PARP requests for various WMATA records, and asked for the fee waiver on the grounds that he publishes articles on Greater Greater Washington and Infosnack.org; WMATA denied the request.

Congress seems to disagree with WMATA's lawyers. Last December, Congress amended the federal FOIA law to broaden the definition of "news media":

[T]he term 'a representative of the news media' means 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. In this clause, the term 'news' means information that is about current events or that would be of current interest to the public. Examples of news-media entities are television or radio stations broadcasting to the public at large and publishers of periodicals (but only if such entities qualify as disseminators of 'news') who make their products available for purchase by or subscription by or free distribution to the general public. These examples 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.

I am not a lawyer, but I'd point out that publishers of periodicals count even if they just "make their products available for purchase by" the public, and for "free distribution." It seems making available for free download would fall within at least the intent of this clause. And the last part of the statute clarifies Congress' intent to include new technologies. Just because a blog reaches people through their Web browsers and RSS readers instead of "sending" something shouldn't matter, and under Congress' definition, probably doesn't. (On top of that, this blog does actually directly send content to subscribers, for those who sign up for email delivery.)

So has a court said, unequivocally, that a blog that publishes news electronically counts as "news media"? Not yet, says the EFF:

The question of whether or when a blogger would qualify as a journalist for FOIA purposes based solely on his or her blog work has not yet been addressed. However, the FOIA makes it clear that alternative media and freelance journalists can qualify as representatives of the news media for fee purposes. If you plan to publish information on your blog based on the records you are seeking, you should note as much in your FOIA request and ask for a fee waiver/reduction. You may or may not succeed, but there's no harm in trying. If you are denied, you may file suit in federal court to challenge the denial.

I don't know if Congress' statute specifically changes WMATA's PARP as well, but since their lawyers cited a FOIA case instead of a PARP case in their denial, Congress' intent in defining "news media" seems extremely relevant.

The Judicial Watch case is also not quite the same as our situation; the District of DC decided Judicial Watch wasn't a member of the media because "Judicial Watch does not characterize itself as an entity engaged in the broadcast and publication of news but rather as a non-profit public interest law firm ... the Court concludes that plaintiff is at best a type of middleman or vendor of information that representatives of the news media can utilize when appropriate." Greater Greater Washington's and Infosnack's readers are mostly members of the public, not primarily journalists, and I do characterize GGW as an entity engaged in the broadcast and publication of news.

Know any attorneys interested in a pro-bono case to clarify that blogs count as news media for FOIA and PARP purposes?