Watchdog Wins Big FOIA Decision In Federal Appeals Court

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Mark Tapscott Executive Editor, Chief of Investigative Group
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Government transparency advocates won a significant victory Tuesday as a federal appeals court ruled that the Federal Trade Commission cannot use unreasonably high fees or excessive demonstrations of readership to deny document requests from journalists and other users of the Freedom of Information Act.

The U.S. Circuit Court of Appeals for the District of Columbia ruled that “erroneous interpretations” of the FOIA by the Federal Trade Commission unreasonably required Cause of Action, a non-profit government watchdog, to demonstrate that its activities would educate “the public at large.”

In a stinging rebuke, the appeals court noted that the FOIA only requires that Cause of Action contribute “significantly to the ‘public’ understanding,” and further observed that “to the contrary, we have held that ‘proof of the ability to disseminate the released information to a broad cross-section of the public is not required.’”

The appeals court took the case after Cause of Action appealed a lower court’s decision upholding the FTC interpretation in a case involving the non-profit’s request in 2011 for documents concerning how the commission creates guidance for private businesses on the use of endorsements in advertising.

Cause of Action had filed three successive FOIA requests in response to the FTC producing only a small portion of hundreds of relevant documents and denying the rest in part because of its erroneous interpretation of the law with regard to advertising in social media.

Independent of the FOIAs, Cause of Action officials believed they had found evidence that the commission was “unfairly and inequitably enforcing the guides based on requesters’ political views, and infringing free speech rights.”

The appeals court also rejected the lower court’s argument that Cause of Action failed to demonstrate that it would reach a “wide audience,” saying the requester need only demonstrate the ability to disseminate information to those with a specific interest in them

The appeals court further rejected the claim that the non-profit could be required to provide at least nine specific ways in which it would disseminate information gleaned from the documents it sought.

“Nor must a requester ‘identify several methods of disseminating the information’ it seeks, a requirement the district court found Cause of Action failed to meet because it ‘identified only two methods[,] . . . its website and articles published by news media that have relied upon [its] past work on other issues,” the appeals court said.

“There is nothing in the statute that specifies the number of outlets a requester must have, and surely a newspaper is not disqualified if it forsakes newsprint for (or never had anything but) a website,” the appeals court ruled.

Tuesday’s decision could force federal departments and agencies to end their longstanding and often-invoked practice of using high reproduction fees and denials of requests that such fees be waived as tools for keeping documents out of the public view.

Regarding fee waivers, Cause of Action had asked the FTC for a waiver because the information sought would “benefit the public interest,” a benefit specifically cited in the FOIA as a permissible reason not to charge a requester.

But the FTC denied the request, arguing that Cause of Action lacked a sufficiently large audience, was not a member of the news media and its publications would not necessarily serve the public interest. The appeals court rejected all three arguments.

In rejecting those arguments, the appeals court said previous decisions and congressional amendments to the FOIA mean news releases, reports and other materials published by non-profit advocacy groups can satisfy the requirement that a requester is providing newsworthy information to interested parties.

The appeals court directed the lower court to rehear the case, specifically with regarding to Cause of Action’s waiver requests and “the clarifications set out above” in its decision.

Cause of Action Executive Director Daniel Epstein was delighted by the ruling, saying “today’s decision is the most significant court ruling for the news media in over a quarter-century and represents a major victory in the fight to make the federal government more transparent.

“As a result of this ruling, the ability of federal agencies to deny fee waivers in order to stifle the release of information has been significantly limited. We hope that this decision spurs a new era of greater public access to information.”

Cause of Action was joined in its appeal by the Reporters Committee for Freedom of the Press and The Daily Caller News Foundation.

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