Coast Guard lawyer fights release of Watchlist documents on grounds that people will read them

Homeland Security: “People read MuckRock, therefore MuckRock isn’t a media organization”

Written by Michael Morisy
Edited by JPat Brown

Under FOIA, there are three categories of requesters: media, which has the lowest level of fees; all others, which are assessed a moderate levels of fees for covering search and duplication costs; and commercial, which has high fees to cover legal review. A Coast Guard lawyer has ruled that, because MuckRock has readers, it’s commercial, not media.

This has come after months of appeals, phone calls, a brief in-person meeting, an open question-and-answer session with hundreds of FOIA officers - including individuals from Homeland Security - and a 2007 FOIA amendment that encourages federal agencies to broadly interpret new and alternative media:

Moreover, as methods of news delivery evolve (for example, the adoption of the electronic dissemination of newspapers through telecommunications services), such alternative media shall be considered to be news-media entities.

Contrast this with what Homeland Security provided as a final response to our request:

Regarding the “commercial requester” classification, the Agency has also properly determined that the requested records would be used for commercial purposes. Although you assert that any responsive documents would be made available to the public for free on MuckRock’s website, the Agency must balance the commercial interest against the public interest. Making documents available on MuckRock’s website, even at no charge, drives traffic to the website and furthers its commercial purposes. Your request does not provide any information that would allow the Agency to determine that the public interest outweighs this commercial interest.

In 2014, posting things online is kind of what news organizations do. But the fact that we give access to documents, free of charge, to the public, without advertising, is used against us and our users, despite the fact that posting documents is something almost every major media outlet does. In fact, here’s over 300 other news outlets that do it the exact same way we do, on DocumentCloud.

Returning to the last sentence in their rejection of MuckRock editor Shawn Musgrave’s media status, they write:

Your request does not provide any information that would allow the Agency to determine that the public interest outweighs this commercial interest.

But right in his appeal, Shawn wrote the following (you’ll be forgiven for skimming; it’s pretty comprehensive);

First, the fact that MuckRock is a commercial entity is irrelevant – the vast majority of media outlets are similarly “commercial.” What is determinative here is the purpose to which the requested documents are information are to be put. In this case, the requested documents will be posted online for free via MuckRock. I confirm that I hold no commercial interest in the requested documents, and I&A FOIA staff has provided no basis for determining otherwise.

I have substantiated in countless previous instances that my intentions for requested documents are journalistic in nature. The requested documents concern a matter of broad public interest, namely the means by which DHS I&A train DHS analysts to manage terrorist watchlists. Such materials are of particular public interest given the highly public instances of mismanagement of such lists to prevent air travel by individuals with no connection to terrorist activity.

The requested documents will contribute to public understanding of the DHS watchlisting history and evolution, as well as steps taken by DHS to address potential concerns over mismanagement.

Finally, the requested documents will be synthesized into a distinct journalistic work that will be disseminated to the public. My basis for this claim is not only that the requested documents will be posted in full online for the general public on MuckRock (although such posting is relevant as it relates to widespread dissemination in the public interest). My history of publication in a number of outlets — including via MuckRock’s news coverage, as well as a range of print and online publications — substantiates my claim sufficiently to justify my categorization as a journalist for this request. This is particularly true for matters related to DHS, for which I have amassed a considerable body of work.

In keeping with the 2007 FOIA amendments and procedures for determining fee status as a journalist, here is a sampling of recent articles as proof of publication history:

https://www.muckrock.com/news/archives/2014/feb/18/dhs-vancouver-olympics-social-media/

betaboston.com/news/2014/03/05/a-vast-hidden-surveillance-network-runs-across-america-powered-by-the-repo-industry/

www.bostonglobe.com/metro/2013/12/14/boston-police-suspend-use-high-tech-licence-plate-readers-amid-privacy-concerns/B2hy9UIzC7KzebnGyQ0JNM/story.html

www.bostonglobe.com/metro/2013/04/08/big-brother-better-police-work-new-technology-automatically-runs-license-plates-everyone/1qoAoFfgp31UnXZT2CsFSK/story.html

http://motherboard.vice.com/blog/syracuse-home-to-an-air-force-drone-squadron-banned-drones

I don’t know how much more detailed Shawn could have gotten, particularly since he doesn’t have the documents yet (hence the request).

Essentially, what the Department of Homeland Security is arguing is that, because we’re a media outlet that has readers and revenue, we’re not media. Unfortunately, it’s not the first time an agency has taken a bizarre stance trying to define media, but it’s frustrating that agencies are using these kinds of arguments to keep information regarding the DHS watch list, a demonstrably problematic system, hidden from the public.


Image via Wikimedia Commons and is licensed under CC BY-SA 2.0