FOIA: Can A Blog Be Part Of The News Media?

Short story: the government says my FOIA requests are not entitled to be processed as quickly as a newspaper reporter’s requests, because I write on a blog. Read on!

A quick recap of my FOIA case seeking information about lobbying connected with the Chevron/Ecuador dispute. In August 2011 I submitted my FOIA request to the State Department. Nearly two years later, having had no substantive response (the statute gives the government twenty days to make its determination about whether to comply with a request), I sued the State Department. The lawsuit has led to some interesting findings, for example, my conclusion that the contacts between Chevron and the State Department concerning Ecuador took place at a very high level, including Chevron’s CEO and the Deputy Secretary of State. The Republic of Ecuador cited my results in some detail in a paper it submitted to the arbitral tribunal in the BIT arbitration brought by Chevron.

However, as I noted back in April, the government had refused to produce some documents until it received clearance from an unnamed third party that had submitted them to the Department. Any guesses about who that third party is? Anyway, I submitted a second FOIA request asking the Department to provide records identifying the mysterious third party and to provide correspondence between the Department and the third party relating to my request. I also asked for expedited consideration on the grounds that I am a news media requester. Frankly, given that I had to wait almost two years and file a lawsuit to get the ball rolling on my first FOIA request, it would have been utterly foolish not to seek expedited treatment! The government denied my request for expedition, and I filed an administrative appeal. The Department has now denied that appeal on grounds that should concern everyone who gets at least some of their news online:

You also requested to be placed in “News Media” instead of the “All Other” requester category. Your basis for this request is because you publish information to a blog. A blog is generally considered a personal site and is used to post a topic to solicit public opinion. Therefore, based upon the information you provided, it does not appear that your request nor appeal meet the criteria to warrant a change of your requester category from “All Other” to “News Media.” You have not demonstrated an ability to disseminate the information to the public at large.

Them’s fightin’ words! The Department seems to be taking almost a per se position with regard to blogs, and in my view it disregarded the significant amount of detail I provided in my appeal regarding my coverage.

I’m a practical guy. I’m scheduled to speak with the government’s lawyer in a few days, and if I can get an agreement to get the documents I’ve requested produced in a timely way, then I’ll take it. But if not, then I do want to challenge the Department’s finding, which I think is ridiculous in 2014.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2012), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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