Liberman v. Dep't of Transp., No. 15-1178, 2016 WL 7496722 (D.D.C. Dec. 31, 2016) (Jackson, J.)

Liberman v. Dep't of Transp., No. 15-1178, 2016 WL 7496722 (D.D.C. Dec. 31, 2016) (Jackson, J.)

Re: Request for records concerning National Highway Traffic Safety Administration's testing of "smart key" technology

Disposition: Granting plaintiff's motion for summary judgment; denying defendant's motion for summary judgment

• Fees and Fee Waivers, Fee Waivers: "[The] Court concludes that The Safety Record[, "an online blog publication,"] is an entity that qualifies as 'a representative of the news media' within the meaning of the fee-waiver provision, and that a news-media entity's journalistic activities are not properly characterized as a 'commercial use [,]' even if those publishing activities ultimately further the financial interests of that entity or its parent company." The court first finds "that [plaintiff] counts as a 'representative of the news media'" because "there is no dispute that The Safety Record has a long history of 'gathering information' through its submission of FOIA requests regarding matters such as automobile safety[;]" "The Safety Record gathers information 'of potential interest to a segment of the public[,]' . . . specifically, people who are interested in automobile and consumer product safety, including the blog posters themselves[;]" "The Safety Record blog and newsletter are replete with opinionated articles that report on and editorialize about information relating to regulatory developments at NHTSA and other agencies[;]" "it is now well-established that online means of distribution – such as 'posting content to a public website [,]' . . . – can satisfy the statutory requirement that a requester 'distribute[ its] work to an audience[;]" and "there is no dispute that The Safety Record distributes its work to an audience by posting articles to a public blog that has more than 6,000 visitors per month." On the last point, the court explains that "the 'audience' for such distribution need not be demonstrably large; 'beyond requiring that a person or entity have readers (or listeners or viewers), the statute does not specify what size the audience must be.'" The court then finds that, "in the absence of evidence of bad faith, [plaintiff's] statements of fact regarding The Safety Record's past publications and her representation that the information was being requested solely for publication in that blog amply demonstrated that the records at issue were being pursued in furtherance of that entity's journalistic function and would not be put to commercial use."
  
  Regarding defendant's challenges, the court finds that "there is simply no basis for DOT's assertion that content that is properly characterized as commercial speech for First Amendment purposes is necessarily disqualified from being deemed 'news' for the purpose of FOIA's fee-waiver provision." "Indeed, quite to the contrary, Congress crafted the FOIA to make clear that any 'information that is about current events or that would be of current interest to the public' – whether or not it is expressed in a commercial context – qualifies as 'news' for FOIA purposes.'" "In any event, it is clear to [the] Court that the content of The Safety Record does not come anywhere close to falling on the advertisement side of the commercial-speech line[.]" Relatedly, the court rejects "DOT's assertion that a FOIA request made by any news-media member that is affiliated with a corporate or commercial entity necessarily seeks records for commercial use such that the requester is ineligible for the statutory fee waiver." The court also finds that "The Safety Record is, in fact, disseminating the information that it receives from FOIA requests to the public, and is not funneling that information . . . to be used to service of [the blog's parent] company's private clients."
  
  The court concludes by summarizing that "the two requirements for obtaining a news-media fee waiver are not onerous." "First, so long as a person or entity '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,' that person or entity qualifies for a fee waiver as a 'representative of the news media.'" "And, second, so long as that representative of the news-media is requesting the particular documents at issue in service of the entity's news-dissemination activities – as opposed to some other internal, commercial (i.e., non-journalistic) function – the 'commercial use' provision does not prevent that representative from receiving a fee waiver, even if the entity is (or is affiliated with) a for-profit enterprise."