eChirps (U)

To Whom It May Concern:

Pursuant to the Freedom of Information Act, I hereby request the following records:

Copies of all unclassified e-Chirps, preferably in an electronic format. While this request is inclusive and covers a large number of records, they are easy to identify and locate. Despite the large number of responsive records, they are each short, all unclassified, and simple to redact PII from. I will not object to the redaction of usernames and display names to protect their identities, but request they be replaced with numbers to allow tracking of which users posted which items while protecting their privacy.

I am a member of the news media and request classification as such. I have previously written about the government and its activities for AND Magazine, MuckRock and Glomar Disclosure and have an open arrangement with each. My articles have been widely read, with some reaching over 100,000 readers. As such, as I have a reasonable expectation of publication and my editorial and writing skills are well established. In addition, I discuss and comment on the files online and make them available through the non-profit Internet Archive, disseminating them to a large audience. While my research is not limited to this, a great deal of it, including this, focuses on the activities and attitudes of the government itself. As such, it is not necessary for me to demonstrate the relevance of this particular subject in advance. Additionally, case law states that “proof of the ability to disseminate the released information to a broad cross- section of the public is not required.” Judicial Watch, Inc. v. Dep’t of Justice, 365 F.3d 1108, 1126 (D.C. Cir. 2004); see Carney v. U.S. Dep’t of Justice, 19 F.3d 807, 814-15 (2d Cir. 1994). Further, courts have held that "qualified because it also had “firm” plans to “publish a number of . . . ‘document sets’” concerning United States foreign and national security policy." Under this criteria, as well, I qualify as a member of the news media. Additionally, courts have held that the news media status "focuses on the nature of the requester, not its request. The provision requires that the request be “made by” a representative of the news media. Id. § 552(a)(4)(A)(ii)(II). A newspaper reporter, for example, is a representative of the news media regardless of how much interest there is in the story for which he or she is requesting information." As such, the details of the request itself are moot for the purposes of determining the appropriate fee category.

The requested documents will be made available to the general public, and this request is not being made for commercial purposes.

In the event that there are fees, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 20 business days, as the statute requires.

Sincerely,

Emma Best

I am contesting the assertion that I did not reasonably describe the records. I, in fact, did. Although broad and inclusive, the request very clearly defines what is sought. The FOIA and case law both establish that the standard is whether it is clear from the request that a given record would be included in the request or not. In this case, that is abundantly clear.

I further contest that the records cannot be located by Agency employees familiar with the records. Anyone able to access unclassified eChirps can locate them, regardless of the process possibly being time consuming. This, of course, does not take into account the fact that the database can likely be accessed directly. Far from requiring an "unreasonable amount of effort" to locate the records, the process of locating them is minimal. Processing them for release is more time consuming, but this is not what is meant by the FOIA statute or case law.

The Agency conceded that "a preliminary search for all classified eChirps may appear to be quickly conducted, [but] the resulting material identified through a search of this type would be tantamount to requiring a manual search through, and reading of, many thousands of pages in order to determine whether the material may be what you are interested in." In this, the Agency concedes the records may be quickly located. Whether the records located through such a preliminary search would be what I am interested in is a simple matter - they would be. Thus, the Agency's contention that "you have not stated your request in such a manner that we could reasonably determine what exactly you are interested in" is patently false. It would be simple and reasonable to determine whether I am interested in it. If it's an eChirp and unclassified, I'm interested in it. Therefore, my FOIA is valid and I request that it be processed as such.

I am appealing the rejection in its entirety, as the request was quite specific in scope, and it is easy for the agency to locate the materials. Further, courts have found that "[r] egardless of how onerous it might be to locate them, [when] there can be no dispute about which items are being requested" the request is not unreasonably burdensome. This is the case in this request.