CIA alters ‘news media’ definition for FOIA requests

Criticism of a draft proposal prevented a more expansive overhaul of fee structure.

Criticism of proposed rules on fees for obtaining documents under the Freedom of Information Act has prompted the CIA to establish a definition of "news media" that could include bloggers.

The CIA's final rule on FOIA processing fees, from which members of the news media are usually exempt, takes a pass on a more complex fee structure proposed in a draft version. The CIA decided against the complicated structure due to the lack of public support for the change, according to a notice published in the Federal Register Wednesday.

The new rule, effective Wednesday, adopts the definition of "news media" contained in a 1987 Office of Management and Budget FOIA guidebook that includes "alternative media" that would be disseminated electronically "through telecommunications." Under the 1986 FOIA Reform Act, OMB is responsible for promulgating a "uniform schedule of fees" across the government.

The notice stated that while the CIA remains confident in the adequacy of its old interpretation of "news media," officials concluded that it is better to avoid "sterile and unproductive technical litigation" and the "diversion of resources from more productive pursuits."

Meredith Fuchs, general counsel of the National Security Archive, a research institute and library located at The George Washington University, said the CIA changed its definition in an attempt to pre-empt a court ruling that the agency's existing regulations were illegal. The Archive filed a lawsuit in District Court for the District of Columbia in June 2006, challenging a CIA decision that it did not qualify as "news media" and that its request would have to concern "current events" to qualify for the fee waiver.

"We hope these changes will minimize CIA efforts to discourage news media FOIA requesters in the future," Fuchs said.

A CIA spokesman declined to comment on whether the change was related to the lawsuit, pointing to the Federal Register notice for an explanation of the final rule.

Members of the news media, along with educational, noncommercial or scientific groups, have a special status under the FOIA law. News organizations do not have to pay fees for the agency to search and review requested documents since they are disseminating information to the public, but they may have to pay duplication fees depending on the size of the request. Any requester who can show that the disclosure of the documents is in the public interest may pay reduced or no duplication fees.

Wednesday's final rule, published by Scott Koch, the CIA's information and privacy coordinator, stated that the Jan. 8 draft contained a number of "innovative features" in an attempt to make the new fee approach workable.

But some comments from the public were "very critical," Wednesday's notice stated. Under the original proposal, the CIA would have stopped charging processing fees for all requests except those coming from the federal government, or from state and local governments. Instead, the CIA would have billed for duplication costs with the first 100 pages free.

The proposed regulations would have established maximum amounts the CIA could bill for searches and duplication. Federal, state and local government requesters would have had "search fees" attached, with the first two hours free.

In June, the CIA publicly released two large collections of previously classified documents known widely as the "Family Jewels." They consisted of nearly 700 pages of responses from CIA employees to a 1973 directive asking them to report activities they thought might be inconsistent with the agency's charter. The release was in response to a FOIA request filed by the Archive 15 years earlier.