LIBERMAN v. DEPARTMENT OF TRANSPORTATION

Filing 21

MEMORANDUM OPINION granting Defendant's 10 Motion to Dismiss for Lack of Jurisdiction; denying Defendant's 10 Motion for Summary Judgment; and granting Plaintiff's 13 Cross-Motion for Summary Judgment. See attached document for details. Signed by Judge Ketanji Brown Jackson on December 31, 2016. (lckbj2)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUM B IA

ELLEN C. LIBERMAN,
P laintiff,
v.
U.S. DEP ARTMENT OF
TRANSP ORTATION,
Defendant.

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Civil Action No. 15-cv-1178 (KBJ)

M EM ORANDUM OPINION
The “basic purpose” of the Freedom of Information Act (“FOIA”), 5 U.S.C.
§ 552, is “‘to open agency action to the light of public scrutiny.’” U.S. Dep’t o f Ju stice
v. Rep o rters Co mm. f o r Freedom of th e Press, 489 U.S. 749, 772 (1989) (quoting Dep ’t
o f Air Fo rce v. Ro se, 425 U.S. 352, 372 (1976)). In furtherance of that core objective,
the FOIA gives “special status” to news-media entities that request government records
for the purpose of disseminating them to the public, Na t’l S ec. Archive v. U.S. Dep’t of
Def ., 880 F.2d 1381, 1388 (D.C. Cir. 1989), including exempting such entities from
certain document-processing fees that are charged to other records requesters under the
FOIA. See 5 U.S.C. § 552(a)(4)(A)(ii)(II). In the instant lawsuit, P laintiff Ellen C.
Liberman challenges the decision of the National Highway Traffic Safety
Administration (“NHTSA”) to deny her request for such a FOIA-fee waiver. (See
Compl. for Declaratory & Injunctive Relief (“Compl.”), ECF No. 1.) Liberman, a
journalist-contributor to the consumer safety blog The Saf ety Record, submitted a
document request to NHTSA and specifically asked for a fee waiver because she was

seeking documents “solely for the purpose of publication and dissemination of the
requested information via Th e S a f ety Record[.]” (Id. ¶ 14 (internal quotation marks
omitted).) NHTSA denied Liberman’s fee-waiver request on the grounds that Th e
S a f ety Record blog is affiliated with the for-profit company Safety Research &
Strategies, Inc. (“SRS”)—SRS is an industry research firm that runs the blog—and, in
the agency’s view, the statutory fee-waiver provision is inapplicable to FOIA requests
made for the purpose of that publication. (Compl. ¶¶ 18– 25.) Liberman’s two-count
complaint against the Department of Transportation (“DOT”) alleges that NHTSA’s
denial of her fee-waiver request violates both the FOIA (Count I) and the
Administrative P rocedure Act (“AP A”), 5 U.S.C. §§ 701– 06 (Count II).
Before this Court at present are the parties’ cross-motions for summary judgment
(see Def.’s Mem. of P . & A. in Supp. of its Mot. to Dismiss and for Summ. J. (“Def.’s
Mem.”), ECF No. 10-2; Mem. in Opp’n to Def.’s Mot. for Summ. J., & in Supp. of P l.’s
Cross-Mot. for Summ. J. (“P l.’s Mem.”), ECF No. 12), which are fully briefed and ripe
for decision (see Def.’s Combined Reply to P l.’s Opp’n to its Mot. for Summ. J. & Mot.
to Dismiss & Opp’n to P l.’s Cross-Mot. for Summ. J. (“Def.’s Reply”), ECF No. 15;
Reply Mem. in Supp. of P l.’s Cross-Mot. for Summ. J. (“P l.’s Reply”), ECF No. 17). In
these motions, the parties dispute whether Th e S a fety Record qualifies as “a
representative of the news media” for the purpose of FOIA’s fee-waiver provision (see
Def.’s Mem. at 21– 26; P l.’s Mem. at 17– 21), and also whether Liberman’s FOIA
request actually seeks records “for commercial use” because The Safety Record exists to
further the pecuniary interests of SRS. (Def.’s Mem. at 18–21; P l.’s Mem. at 12– 17). 1

1

Pag e-number citations t o the documents t he p arties h ave filed refer to t he p age n umbers t hat t he

2

As explained fully below, this Court concludes that The Sa fety Record 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. 5 U.S.C.
§ 552(a)(4)(A)(ii)(II). Thus, the statutory news-media fee waiver provision is
applicable to Liberman’s FOIA request, and therefore Liberman’s Cross-Motion for
Summary Judgment will be GRANTED, while DOT’s Motion for Summary Judgment
must be DENIED. A separate order consistent with this memorandum opinion will
follow.
I.

B ACKGROUND 2
A.

The Sa fety Record B log And Its Parent Company, Safe ty Research &
Strate gies, Inc.

Th e S a f ety Record is an online blog publication that has several posts per month
dating back to 2004. (S ee Letter of Oct. 14, 2014 (“FOIA Appeal”), Ex. E to Def.’s
Mem, ECF No. 10-3, at 55– 70 (enclosing sample posts from The Safety Record blog);
id . at 55– 57 (showing a number of posts in The Sa fety Record blog’s archive for each
month between 2004 and 2014).) The sample posts and articles that are in the
administrative record reveal that The Sa fety Record reports on regulatory developments,

Co u rt ’s electronic filin g system automatically assigns.
2

Th e facts related in t his memorandum o pinion are d rawn p rimarily fro m Defendant’s Statement o f
M at erial Facts Not in Genuine Dispute (“Def.’s Statement,” ECF No . 10-1), which Plaintiff has adopted
in it s entirety. (Pl.’s St atement o f Material Facts Not in Dispute & Response t o Def.’s St atement of
Fact s Not in Dispute (“Pl.’s Statement”), ECF No . 12-6, ¶ 1.) Excep t where o therwise n oted, the facts
in t h is o pinion are either b ased on t he p arties’ exp ress agreement (v ia t heir in clusion in Defendant’s
St at ement of Facts) o r appear in t he record and are not controverted.

3

consumer litigation, and other recent events in the area of consumer safety (see FOIA
Appeal, Def.’s Ex. E, at 19– 70), and its articles include analysis of congressional
hearings and other legislative happenings related to consumer concerns (see, e.g., id. at
56 (describing a Senate committee hearing on NHTSA oversight and a House committee
report on ignition switch issues); id . at 58– 60 (reporting on a House committee hearing
on ignition switch issues). 3 According to P laintiff, the “frequently visited blog site”
has always “contain[ed] in-depth information, commentary and analysis about a variety
of automotive and product safety issues” (Letter of July 11, 2014 (“FOIA Request”),
Ex. A to Def.’s Mem., ECF No. 10-3, at 3), and The Saf ety Record also “posts
documents received in response to its FOIA requests along with accompanying analysis
and commentary[,]” and thus provides “insight into government operations and
activities” at “no charge” with the objective of “educat[ing] the press, policymakers,
public health practitioners, attorneys and the general public[.]” (Id.; see a lso id.
(noting that “[m]any of our reports are the basis for consumer news in more traditional
broadcast, print and web-based media”). Between 2005 and 2011, The Saf ety Record
also published a periodic newsletter, which had the same objective and covered the
same topics. (S ee FOIA Appeal, Def.’s Ex. E, at 19– 54 (enclosing sample issues of the
newsletter); id. at 14 (recounting the newsletter’s history).)

3

Per t h e FOIA, t his Co urt’s review o f t he fee-waiver issue is limit ed t o the admin istrative record t hat
was b efore NHTSA wh en Lib erman’s request was considered. S ee 5 U.S.C. 552(a)(4)(A)(vii) (“In any
act ion b y a requester regarding t he waiver of fees u nder this section, t he court shall d etermine the
mat t er de n ovo: Provided, That t he court’s review of t he matter shall be limit ed t o t he record b efore the
ag ency.”). In her lett er appealing t he d enial o f her fee waiver request, Lib erman exp ressly in vited
NHTSA t o “review . . . t h e many additional articles available on [The Safety Record’s] website” (FOIA
A p peal, Def.’s Ex. E, at 15); t h erefore, it appears t hat t he contents of The S afety Record’s website at
t h e t ime NHTSA considered t he fee-waiver issue have b een in corporat ed into t he administrative record.

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Significantly for present purposes, the for-profit industry research firm SRS
owns and publishes Th e S a f ety Record blog. (Def.’s Statement ¶¶ 2, 18.) SRS provides
services that include “support for civil litigation, rulemaking, legislation or public
awareness campaigns[,]” and for clients who retain the firm, SRS employees conduct
“fact-based research and analysis on injuries associated with product hazards ranging
from motor vehicle to consumer and industrial products to medical devices.” (Id. ¶ 15
(internal quotation marks and citation omitted).) The Sa fety Record appears on SRS’s
website and is not incorporated separately from SRS. (Id. ¶¶ 16, 18.) Nor does the
blog have its own employees. (Letter of Oct. 28, 2015 (“Appeal Decision”), Ex. G to
Def.’s Mem., ECF No. 10-3, at 83.) 4
Notably, SRS periodically seeks information from the government in connection
with the non-journalistic services that SRS provides, including requesting records from
NHTSA under the FOIA. (S ee Def.’s Statement ¶ 14; see, e.g., FOIA Appeal, Def.’s
Ex. E, at 71 (enclosing sample SRS FOIA request letter to NHTSA).) SRS does not
seek fee waivers with respect to the FOIA requests that it submits in connection with its
commercial services; in fact, when SRS “seek[s] . . . information under the category of
‘commercial use requester,’” it makes a proactive declaration that the company is
“willing to pay [the] fees necessary to procure th[e] information.” (FOIA Appeal,
Def.’s Ex. E, at 71; see Def.’s Statement ¶ 14); see also 5 U.S.C. § 552(a)(4)(A)(ii)(I)
(permitting a responding agency to bill the requester for the direct costs of “document
search, duplication, and review, when records are requested for commercial use”). SRS

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NHTSA determin ed in it s revised appeal d ecision that The S afety Record has no emp loyees o f its o wn
(A p peal Decision, Def.’s Ex. G, at 83), an d Lib erman does not challenge t hat finding.

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employees also submit FOIA requests for information that is solely intended for public
distribution via Th e S a fety Reco rd. (See FOIA Request, Def.’s Ex. A, at 3 (“The Sa f ety
Reco rd Blog often posts documents received in response to its FOIA requests along
with accompanying analysis and commentary.”).) P laintiff maintains that “The Saf ety
Reco rd submits its own requests [separate and apart from those that are submitted on
behalf of SRS], all of which are made in furtherance of its efforts to gather information
and use its editorial skills to produce a distinct work for dissemination to the public.”
(FOIA Appeal, Def.’s Ex. E, at 16.)
B.

The FOIA And Fe e-Waiver Re quests At Is sue Here

Liberman, who holds a Master’s degree from the Columbia University Graduate
School of Journalism, is a “researcher and writer with 28 years of experience gathering
and organizing information.” (Safety Research & Strategies, Inc., Ab o ut Us, Ex. I to
Def.’s Mem., ECF No. 10-3, at 91.) Liberman is an employee of SRS and a frequent
contributor to The Saf ety Record. (See, e.g., FOIA Appeal, Def.’s Ex. E, at 22, 26, 30.)
On July 11, 2014, Liberman submitted the following FOIA request to NHTSA on behalf
of Th e S a f ety Record, seeking documents related to NHTSA’s testing of “smart key”
technology:
We request any and all documents produced by [NHTSA] and/or its
contractors regarding the January 2014 FMVSS 114 compliance
investigations involving
vehicles equipped with remote
ignition/“smart key” technology. We are seeking any reports,
communications, data, or memoranda generated in the course of the
investigation(s) conducted under the supervision of Harry
Thompson, Chief of the Crash Avoidance Division, Office of
Vehicle Safety Compliance.
(FOIA Request, Def.’s Ex. A, at 2.)

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Liberman’s FOIA request also included a “Request for Categorization as a
‘Representative of the News Media’” so as to be eligible for a waiver of the standard
FOIA-request processing fees. (Id.) In support of her request for a news-media fee
waiver, Liberman specifically represented that “[t]his request is separate and apart from
those submitted by Safety Research & Strategies, and is made solely for the purpose of
publication and dissemination of the requested information via The Saf ety Record.”
(Id .) In the fee-waiver discussion, Liberman also asserted that “Th e S a fety Record
qualifies as a ‘representative of the news media’ pursuant to the FOIA[.]” (Id.)
Liberman explained that Th e S a f ety Record blog is a publication that “reports the latest
developments and contains in-depth information, commentary and analysis about a
variety of automotive and product safety issues[,]” and that the blog “often posts
documents received in response to its FOIA requests along with accompanying analysis
and commentary,” which provides the public with “insight into government operations
and activities[,]” as noted above. (Id. at 3.)
NHTSA replied to Liberman’s FOIA and fee-waiver requests on September 5,
2014; its response letter notified Liberman that her request for a news-media fee waiver
was denied. (Letter of Sept. 5, 2014, Ex. B to Def.’s Mem., ECF No. 10-3, at 6.)
NHTSA stated that the agency was denying the fee-waiver request because “Th e S afety
Reco rd is an arm of [SRS],” and because “SRS and The Safety Record are organized to
perform activities as a commercial research and advocacy organization, not as an
organization where its operational activities are for the dissemination of information as
a representative of the news media.” (Id. at 7.) NHTSA indicated that processing
Liberman’s FOIA request would cost $2,070, and that the agency would not proceed

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with processing the request until Liberman agreed to pay the full cost or specified the
amount she was willing to pay. (Id.) Liberman responded that she was willing to pay
the full cost of the processing, but wished to preserve her right to appeal the fee-waiver
denial. (S ee Letter of Sept. 18, 2014, Ex. C to Def.’s Mem., ECF No. 10-3, at 9.)
NHTSA replied the following day, indicating that the agency would begin to process
Liberman’s document request. (S ee Letter of Sept. 19, 2014, Ex. D to Def.’s Mem.,
ECF No. 10-3, at 12).
Liberman then proceeded to appeal the fee-waiver denial to NHTSA’s chief
counsel. (FOIA Appeal, Def.’s Ex. E, at 14–16.) To highlight The Sa f ety Record’s
news-media bona fides, Liberman’s appeal letter emphasized the publication’s high
readership levels—averaging 6,000 unique visitors per month—and ten-year history of
publishing newsworthy content. (See id. at 16.) Liberman also attached several issues
of Th e S a f ety Record’s newsletter and many sample blog posts. (See id. at 19– 70.)
Furthermore, in response to NHTSA’s concern that Th e Sa fety Record was not distinct
from SRS, Liberman’s appeal letter emphasized that the two entities submit separate
FOIA requests, and that Th e S a f ety Record’s requests are used only for disseminating
news. (Id. at 16.)
NHTSA’s chief counsel denied Liberman’s appeal on December 1, 2014. As
grounds for the denial, the letter that the agency sent to Liberman stated that “neither
[SRS] nor Th e S a f ety Record are a ‘representative of the news media’ under the
FOIA[,]” and also that, in the agency’s view, Liberman was seeking records for
commercial use, because “Th e S afety Reco rd blog is not a distinct entity that can be
separated from [SRS]” and “the publication exists primarily (if not solely) for

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marketing purposes.” (Letter of Dec. 1, 2014, Ex. F. to Def.’s Mem., ECF No. 10-3, at
75– 76, 78 (interpreting 5 U.S.C. § 552(a)(4)(A)(ii)(II)).)
C.

Pro ce dural Histo ry

On July 22, 2015, Liberman filed a two-count complaint in this Court
challenging NHTSA’s denial of her fee-waiver request under both the FOIA and the
AP A. (Compl.) Liberman’s complaint seeks a declaration that she qualifies as a newsmedia requester when she seeks records on behalf of The Sa f ety Record , and an order
enjoining NHTSA and DOT to treat her as such with respect to the assessment of FOIAprocessing fees “for existing and future requests submitted on behalf of The Safety
Reco rd.” (Id. ¶ 4.) 5
On September 17, 2015—two months after the filing of the instant action—
NHTSA informed Liberman that it was rescinding its prior decision regarding her feewaiver request, and that the agency would re-examine her administrative appeal in light
of the D.C. Circuit’s intervening decision in Ca u se o f Action v. FTC, 799 F.3d 1108
(D.C. Cir. 2015), which had opined at length about FOIA’s news-media fee-waiver
provision. (S ee Email of Sept. 17, 2015, Ex. K to Def.’s Mem., ECF No. 10-3, at 96.)
Accordingly, DOT filed a consent motion for an extension of time to respond to
Liberman’s complaint (ECF No. 6), which this Court granted on September 23, 2015
(see Min. Order of Sept. 23, 2015).

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Lib erman’s comp laint also s eeks a Co urt order requiring NHTSA “to p rocess immed iately t he agency
reco rds t hat [Lib erman] requested and t o accord the request the place in the p rocessing queue [that] it
[wo u ld] h ave had b ut for NHTSA’s imp roper refusal t o recognize [Lib erman] as a news media
req u ester[.]” (Co mpl. at 7.) Lib erman h as since “withdraw[n] her request for judgment on t he
t imelin ess issue” (Pl.’s Reply at 8); t herefore, this memo randum o pinion does not address it .

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On October 28, 2015, NHTSA’s chief counsel again denied Liberman’s
administrative appeal; this time, the agency’s denial rested solely on its conclusion that
Liberman was ineligible for the fee waiver because she was seeking records for
commercial use. (S ee Appeal Decision, Def.’s Ex. G, at 85 (“Because I have
determined that the FOIA request at issue was made ‘for commercial use,’ thus
precluding Th e S a f ety Record from qualifying for a fee reduction, I need not provide an
agency determination on whether Th e Sa fety Record [is] a ‘representative of the news
media.’”); see also id. at 84 (finding that “The Sa f ety Record, which does not exist
separately from SRS, is merely a marketing blog intended to further the commercial and
profit interests of SRS”).)
The parties then proceeded with Liberman’s lawsuit in this Court. On January 5,
2016, DOT filed a motion to dismiss and for summary judgment; Liberman filed a
cross-motion for summary judgment on February 9, 2016. 6
DOT’s summary judgment motion argues that the fee-waiver denial was proper,
because the contents of The Safety Record are essentially advertisements for SRS’s
services, rather than news, and thus, The Saf ety Record is not “a representative of the
news media.” (Def.’s Mem. at 23–26; Def.’s Reply at 13– 16.) DOT also maintains that
Liberman’s FOIA request sought records “for commercial use[,]” because The Safety

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DOT’s mo tion seeks d ismissal o f Lib erman’s A PA claim p ursuant t o Federal Rule of Civ il Procedure
12(b )(1) and requests summary judgment with respect to h er FOIA claim. DOT argues t hat t he APA
claim mu s t b e d ismissed b ecause judicial review is available u nder the A PA o nly with respect to
“ag ency act ion fo r which t here is n o other adequate remedy[,]” 5 U.S.C. § 704, and an adequate remedy
is av ailable in t his case under t he FOIA itself. (S ee Def.’s Mem. at 16– 17 (citing, e.g., Feinman v. FBI,
713 F. Su p p . 2d 70, 76 (D.D.C. 2010)).) Lib erman h as consented t o the d ismissal o f her A PA claim o n
t h is ground. (See Pl.’s M em. at 2.) Consequently, Lib erman’s A PA claim will b e DISMIS SED, as
n o t ed in the accompanying order, and t his memorandum o pinion addresses only t he p arties’ arguments
reg arding the applicability of t he fee-waiver provision in t he context of Lib erman’s FOIA claim.

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Reco rd exists to further the pecuniary interests of SRS. (Def.’s Mem. at 18– 21; Def.’s
Reply at 8– 13.) Liberman responds that nearly all of The Sa f ety Record’s articles are
purely informational and do not reference SRS’s services. (Pl.’s Mem. at 17– 21; P l.’s
Reply at 5– 6.) Furthermore, Liberman maintains that the fact that a news-media
requester may have a pecuniary interest in its news-dissemination activities does not
render those activities a “commercial use” within the meaning of 5 U.S.C.
§ 552(a)(4)(A)(ii)(II). (Pl.’s Mem. at 12–17; P l’s Reply at 2– 5.) This Court held a
hearing on the parties’ ripe cross-motions on October 25, 2016.
II.

LEGAL STANDARD
A.

Summary Judgme nt in the FOIA Co ntext

“FOIA cases typically and appropriately are decided on motion for summary
judgment.” Bigwood v. U.S. Dep’t o f Def., 132 F. Supp. 3d 124, 134 (D.D.C. 2015)
(quoting Def enders o f Wild life v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C.
2009)). Summary judgment is warranted when “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P . 56(a). In FOIA fee-waiver lawsuits, the Court reviews
the agency’s determinations de novo and must limit its review to the record before the
agency. 5 U.S.C. § 552(a)(4)(A)(vii); Judicial Watch, Inc. v. Rossotti, 326 F.3d 1309,
1311 (D.C. Cir. 2003). Courts owe no deference to agency regulations interpreting the
FOIA, Ca u se of Action, 799 F.3d at 1115, but may consult such regulations to the extent
they are helpful and not inconsistent with the statutory text, see, e.g., id . at 1124; Na t’l
S ec. Archive v. U.S . Dep’t of Def., 880 F.2d 1381, 1387– 88 (D.C. Cir. 1989). It is the
requester’s burden to show that she is entitled to a fee waiver. See Citizens f or

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Resp o nsibility & Ethics in Washing ton v. U.S. Dep’t of Justice, 602 F. Supp. 2d 121,
125 (D.D.C. 2009).
B.

FOIA Fe es And The Fee-Waiver Provision For Representatives Of
The Ne ws Media

By statute, an agency is permitted to bill a FOIA requester for the direct costs of
“document search, duplication, and review” when the requester seeks records “for
commercial use[.]” 5 U.S.C. § 552(a)(4)(A)(ii)(I). However, per the Freedom of
Information Reform Act of 1986, P ub. L. No. 99-570, § 1803, 100 Stat. 3207-48, 320750, news-media entities are exempt from paying some of the document-processing costs
that ordinary FOIA requesters must pay when they submit a request for documents. See
5 U.S.C. § 552(a)(4)(A)(ii)(II). Specifically, “when records are not sought for
commercial use” and the requester is “a representative of the news media[,]” the fees
that the agency can assess are limited to the cost of “document duplication[.]” Id.
Thus, by its terms, the news-media fee waiver provision is applicable when a FOIA
request is submitted by “a representative of the news media[,]” so long as “records are
not sought for commercial use[.]” Id.; see a lso id . (stating that processing “fees shall
be limited to reasonable standard charges for document duplication when records are
not sought for commercial use and the request is made by . . . a representative of the
news media”).
The FOIA defines “a representative of the news media” for the purpose of the
fee-waiver provision broadly; it means “any person or entity that 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.” Id.
§ 552(a)(4)(A)(ii); see a lso 132 Cong. Rec. 27,129, 27,318 (1986) (statement of Sen.

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Leahy explaining that “[i]t is critical that the phrase ‘representative of the news media’
be broadly interpreted if the act is to work as expected[;] . . . [i]n fact, any person o r
o rg anization wh ich regularly publishes o r d issemin ates in forma tion to the p u blic . . .
should qualify for waivers as a ‘representative of the news media.’” (emphasis added)).
The statute also defines “news” as “information that is about current events or that
would be of current interest to the public.” 5 U.S.C. § 552(a)(4)(A)(ii). Furthermore,
Congress has provided a list of “examples” of news-media entities that is specifically
designated as “not all-inclusive[,]” and that includes “television or radio stations
broadcasting to the public at large and publishers of periodicals . . . who make their
products available for purchase by or subscription by or free distribution to the general
public.” Id. In addition, the statute emphasizes that non-traditional news publishers are
eligible: it explains that, so long as “such entities qualify as disseminators of ‘news[,]’”
they count, even if their “methods of news delivery” involve “alternative media” such
as “electronic dissemination[.]” Id.
With respect to the requirement that the records being requested must not be
sought “for commercial use,” regulations from the Office of Management and Budget
(“OMB”) specify that a “commercial use” is “a use or purpose that furthers the
commercial, trade, or profit interests of the requester or the person on whose behalf the
request is made[.]” The Freedom of Information Reform Act of 1986; Uniform Freedom
of Information Act Fee Schedule and Guidelines (“OMB Guidelines”), 52 Fed. Reg.
10,012, 10,017– 18 (Mar. 27, 1987). 7 The guidelines also clarify that “a request for
7

Th e FOIA empowers OMB to p romulgate “guidelines . . . wh ich shall p rovide for a uniform schedule
o f fees for all agencies.” 5 U.S.C. § 552(a)(4)(A)(i). Shortly after Congress enacted t he n ews-media
fee-waiver provision, OMB p romu lgated guidelines t o assist agencies in applying it . S ee OMB
Gu id elin es, 52 Fed. Reg. 10,012 .

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records sup porting the news d issemination f unction of [a commercial news-media
entity] shall not be considered to be a request that is for a commercial use.” Id. at
10,019 (emphasis added).
Notably, and importantly for present purposes, the D.C. Circuit has determined
that the two requirements of the news-media fee-waiver provision have entirely
different aims. The “representative of the news media” prerequisite “focuses on the
nature of the req u ester, not its request.” Cause of Action, 799 F.3d at 1121 (emphasis
in original). By contrast, the “commercial use” requirement is not concerned with “the
identity of the requester, but the u se to which he or she will put the information
obtained[,]” which can change from request to request. OMB Guidelines, 52 Fed. Reg.
at 10,013 (emphasis added); see also Ca u se o f Action, 799 F.3d at 1121 n.10
(explaining that records are “sought for commercial use” if a news-media entity
requests them “in its corporate rather than journalistic capacity”).
Moreover, because the “news media” and “commercial use” requirements appear
in the FOIA statute, courts need not apply the two-step analysis that the Supreme Court
developed in Ch evron, U.S .A., Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837 (1984), or otherwise defer to an agency’s interpretation of them. See Al-Fayed
v. CIA, 254 F. 3d 300, 307 (D.C. Cir. 2001) (“[I]t is precisely because FOIA’s terms
apply government-wide that we generally decline to accord deference to agency
interpretations of the statute, as we would otherwise do under [Chevron].”); Tax
An a lysts v. IRS, 117 F.3d 607, 613 (D.C. Cir. 1997) (“[W]e will not defer to an
agency’s view of FOIA’s meaning” because “[n]o one federal agency administers
FOIA” and “[t]he meaning of FOIA should be the same no matter which agency is

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asked to produce its records.”). Rather, as noted in P art II.A, supra, the statute itself
prescribes a de novo standard of review for district courts to apply with respect to an
agency’s fee-waiver determinations, see 5 U.S.C. § 552(a)(4)(A)(vii), and it is well
established that, when determining the scope of the FOIA fee-waiver categories, a court
“must focus foremost on the text of the statute” rather than deferring to the agency’s
position, S a ck v. U.S. Dep’t o f Def., 823 F.3d 687, 692 (D.C. Cir. 2016).
III.

ANALYSIS
In the instant action, Liberman argues that she is entitled to receive the fee

waiver that the FOIA prescribes for news-media requesters with respect to document
requests that she makes for the purpose of publication in The Sa fety Record blog.
Liberman insists that Th e S a f ety Record is an established news-media entity, and that
her track record of publishing articles in The Saf ety Record qualifies her as a
“representative of the news media” for the purpose of FOIA’s fee-waiver provision.
(S ee P l.’s Mem. at 9– 12, 17– 21.) What is more, Liberman maintains that her
representation to NHTSA that the particular records she requested in the July 2014
FOIA letter would be used solely for dissemination in The Sa f ety Record suffices to
show that she was not seeking records “for commercial use” in a manner that would
disqualify her from receiving the news-media fee waiver. (See id. at 12– 17.) For its
part, although NHTSA did not rest its final fee-waiver determination on an analysis of
whether The Safety Record qualifies as a member of the news media, DOT asserts in its
summary judgment briefs that Th e Sa f ety Record is not a news-media entity because the
material published in that blog is not “news” as the statute defines it. (See Def.’s Mem.
at 21– 26.) DOT also argues that Liberman’s FOIA request does, in fact, seek records

15

“for commercial use,” and thus is not fee-waiver eligible, because The Safety Record
exists primarily to promote SRS’s fee-based services. (See id. at 18– 21.)
For the reasons explained fully below, this Court concludes that Liberman is
entitled to the statutory news-media fee waiver with respect to the document request
that she submitted to NHTSA on July 5, 2014, because the request was submitted in
service of the journalistic activities of a news-media entity.
A.

Libe rman Qualifie s As “A Representative Of The Ne ws M edia”

The initial step in determining the applicability of the statutory fee-waiver
provision is deciding whether or not the requester is “a representative of the news
media[.]” 5 U.S.C. § 552(a)(4)(A)(ii)(II); see a lso Ca u se o f Action, 799 F.3d at 1118–
20. In the agency’s final appeal letter, NHTSA’s chief counsel expressly eschewed
relying on any argument that Th e Sa f ety Record was not a news-media entity (see
Appeal Decision, Def.’s Ex. G, at 85), and during this Court’s motions hearing, counsel
for the agency also disclaimed NHTSA’s seemingly revived interest in challenging the
news-media status of the blog publication before this Court (see Tr. of Oral Arg. at 19).
Even assuming that NHTSA could have proceeded to press its ‘not news media’ point in
the instant context when the agency did not rely on that finding below, 8 it appears to
have been a wise strategic choice to abandon any such effort, since the statutory text
and the relevant elements that the D.C. Circuit has developed clearly establish that Th e
S a f ety Record counts as a news media entity for fee-waiver purposes.

8
C o mpare Louis v. U.S. Dep’t o f Labor, 419 F.3d 970, 978 (9t h Cir. 2005) (p roviding t hat, b ecause
co u rts review agency action de novo u nder t he FOIA and t he Privacy Act, 5 U.S.C. § 552a, “judicial
rev iew is n ot limit ed t o t he justificat ion fo r withholding of d ocuments originally relied u pon b y t he
ag ency”), w ith Bartko v. U.S. Dep’t o f Justice, 102 F. Su pp. 3d 342, 350 (D.D.C. 2015) (“In evaluating
a [FOIA ] fee-waiver claim, courts g enerally do n ot consider arguments that an agency failed t o make at
t h e administrative level b efore the plaintiff b rought suit .”).

16

Specifically, the FOIA defines “a representative of the news media” to mean
“any person or entity that 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.” 5 U.S.C. § 552(a)(4)(A)(ii). According to the
D.C. Circuit, this statutory definition contains five elements: “A requester must: (1)
gather information of potential interest (2) to a segment of the public; (3) use its
editorial skills to turn the raw materials into a distinct work; and (4) distribute that
work (5) to an audience.” Cause o f Action, 799 F.3d at 1120. In determining whether
or not these elements are satisfied, courts must consider the purported news-media
entity’s past, present, and future work, and thereby engage in “a fact-based
determination of whether a particular requester’s description of its past record, current
operations, and future plans jointly suffice to qualify it as a representative of the news
media.” Id. at 1124; see also id. (“An entity with an extensive record will ordinarily
qualify with only a thin recital of its [future] plans (or perhaps none at all).”).
With this framework in mind, this Court easily concludes that The Saf ety Record
satisfies the five statutory criteria for being deemed a news-media entity, and thus that
Liberman counts as a “representative of the news media” for the purpose of the statute.
First, there is no dispute that Th e Safety Record has a long history of “gathering
information” through its submission of FOIA requests regarding matters such as
automobile safety. (S ee FOIA Appeal, Def.’s Ex. E, at 16); see a lso Ca use o f Action,
799 F.3d at 1121 (indicating that the information-gathering element may be satisfied by
a history of making FOIA requests). The record also clearly establishes that The Sa fety
Reco rd gathers information “of potential interest to a segment of the public[,]” Cau se of

17

Actio n, 799 F.3d at 1120—specifically, people who are interested in automobile and
consumer product safety, including the blog posters themselves. (See, e.g., FOIA
Appeal, Def.’s Ex. E, at 58– 59 (describing FOIA requests concerning automobile
manufacturers’ failure to report customer death and injury claims against them to
NHTSA)); see a lso Cause of Action, 799 F.3d at 1120 (describing “social media
authors[,]” “bloggers[,]” and “those who apply for [FOIA-fee] waivers” as “segments of
the public” whose interest in particular information satisfies the second statutory
element).
With respect to the third statutory element—the requirement that the person or
entity “use its editorial skills to turn raw materials into a distinct work”—Th e S afety
Reco rd again easily passes muster. 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. (See, e.g., FOIA Appeal,
Def.’s Ex. E, at 51 (“Manufacturer Takes Battle over CP SC Database to the Courts;
GAO Finds Little to Complain About”); id . at 52 (“DOT Inspector General Audit Finds
NHTSA Defects Office Needs Improvement but Examination Falls Short”).) The D.C.
Circuit has condoned news-media fee waiver treatment for entities producing works that
are far less “distinct” and that reflect far less in terms of “editorial skills[,]” and in fact,
the Circuit has held that publishing documents in to to, with scant editorial commentary,
suffices. Cause of Action, 799 F.3d at 1121; see also Na t’l S ec. Archive, 880 F.2d at
1387. So, too, does merely assembling and organizing entire sets of documents, if the
publisher adds an index or other finding aid. S ee Nat’l S ec. Archive, 880 F.2d at 1386–
87; see a lso Cause of Action, 799 F.3d at 1122 (noting that “nothing in principle

18

prevents a journalist from producing ‘distinct work’ that is based exclusively on
documents obtained through FOIA”). The record here demonstrates that The Safety
Reco rd’s editors do far more than that.
With respect to the fourth and fifth elements, it is now well-established that
online means of distribution—such as “posting content to a public website[,]” Cause o f
Actio n , 799 F.3d at 1123—can satisfy the statutory requirement that a requester
“distribute[ its] work to an audience,” 5 U.S.C. § 552(a)(4)(A)(ii)(II); see a lso id .
§ 552(a)(4)(A)(ii) (providing specifically that, “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 newsmedia entities”). And 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.” Ca u se o f Action, 799 F.3d
at 1124. Here, 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. (See FOIA Appeal, Def.’s Ex. E, at 14–16.) This all means that Liberman
qualifies as “a representative of the news media.”
Moreover, the argument that DOT once sought to make that the contents of Th e
S a f ety Record are not “news” (see Def.’s Mem. at 23–26; Def.’s Reply at 13– 16) is
utterly misguided. In addition to prescribing the five elements that The Sa fety Record
clearly satisfies, the FOIA also specifically defines “news” to mean any “information
that is about current events or that would be of current interest to the public[,]” 5
U.S.C. § 552(a)(4)(A)(ii), and neither party here has cited a single case in which a court

19

has scrutinized the content of published information on the grounds that it may not
concern “current events” or matters that would be of “current interest,” much less
considered such an evaluation to be dispositive of the news-media issue separate and
apart from the five statutory elements.
DOT’s fair-weather challenge to The Sa f ety Record’s news-media status also
finds no support in the legal precedents that DOT points to, which arise in the context
of the First Amendment’s “commercial speech” doctrine. (See Def.’s Mem. at 23–26
(attempting to draw a doctrinal distinction between news and advertising in the context
of FOIA’s news-media fee-waiver provision, and citing, for example, Bolger v. Youn gs
Dru g Pro ds. Corp., 463 U.S. 60, 67– 68 (1983)).) It is not at all clear that the principles
that apply to the identification of commercial speech for First Amendment purposes
bear on the intended scope of “news” as that term is defined in the FOIA. See, e.g.,
S p irit Airlines, Inc. v. U.S. Dep’t o f Tra nsp., 687 F.3d 403, 412 (2012) (discussing the
commercial speech doctrine). Nor is it reasonable to assume that Congress intended for
the broad definition of “news” that it intentionally and expressly adopted in the FOIA to
be (implicitly) limited by commercial-speech constraints. P ut another way, 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. 5 U.S.C.
§ 552(a)(4)(A)(ii).

20

In any event, it is clear to this Court that the content of The Sa f ety Record does
not come anywhere close to falling on the advertisement side of the commercial-speech
line that DOT’s summary judgment brief attempts to import into the fee-waiver context.
First of all, in asserting that Th e S af ety Record is merely a marketing mechanism for
SRS, DOT simply ignores the myriad fact-based articles and opinion pieces that are
staples of Th e Sa fety Record and that unquestionably provide “information that is about
current events” and “information . . . that would be of current interest to the public.”
Id . (S ee, e.g., FOIA Appeal, Def.’s Ex. E, at 36 (article published December, 2009,
entitled “NHTSA P roposes Anti-Ejection Regulations[,]” which describes a new
proposed Federal Motor Vehicle Safety Standard); id . at 55 (article published
September 26, 2014, entitled “States Start Dropping the ET-P lus Guardrail[,]” which
reports that two states ceased to consider a particular guardrail design as approved
highway safety equipment in the wake of a safety study); id . at 61– 62 (article published
May 22, 2014, entitled “Office Chair from Hell Finally Recalled[,]” which describes
Office Depot’s then-recent recall of 1.4 million office chairs that occasionally
“flip[ped] the occupant backwards”).) Moreover, the record demonstrates that Th e
S a f ety Record blog is almost entirely devoid of any specific references to SRS, and
when SRS is mentioned, it is almost always in the context of reporting SRS’s role in
gathering and presenting certain information, and almost never in the context of
describing SRS’s fee-based services. (See, e.g., id . at 19 (recounting that “[SRS] and
others, including the national press, obtained copies of the Volvo materials that were
entered into evidence at the trial” and provided those materials to NHTSA); id . at 43
(“SRS has been studying and monitoring the tire age issue since 2003, and has

21

presented its findings to NHTSA.”).) And nothing that DOT points to establishes
otherwise; indeed, in this Court’s opinion, neither of the two articles that DOT
highlights as being pseudo-advertisements rise to that level. 9 Thus, DOT’s insistence
that “Th e Sa f ety Record’s primary activity is . . . to promote the services, skills, and/or
credentials of SRS in order to market it to the public” and does not contain “news” as
the statute defines that term, rings hollow. (Def.’s Mem. at 26.)
In sum, after considering the required statutory elements, this Court finds that
Th e S a f ety Record engages in the type of information-gathering and news-dissemination
activities that make it a news-media entity for FOIA purposes. See, e.g., Na t’l S ec.
Arch ive, 880 F.2d at 1385– 87 (holding that an organization that planned to publish
document sets along with indices and other finding aids was a representative of the
news media); Elec. Privacy Info. Ctr. v. Dep’t o f Def., 241 F. Supp. 2d 5, 15 (D.D.C.
2003) (holding that a non-profit entity that published a biweekly electronic newsletter
on civil liberties issues was a representative of the news media). Consequently, the
Court concludes that Liberman is entitled to a FOIA fee waiver as “a representative of
the news media” under 5 U.S.C. § 552(a)(4)(A)(ii)(II), so long as the particular FOIA
request that Liberman submitted did not seek records for commercial use.

9

Th e t wo articles t hat DOT identifies t o support it s point t hat Th e Safety Record p rimarily p ublishes
ad v ertisements for SRS’s services d o not achieve t his goal. The first article, which merely references a
FOIA request t hat SRS submitted, is entirely fo cused o n t he in formation t hat SRS o btained, not o n
SRS’s s ervices. (See Def.’s M em. at 24–25 (citing Are Trinity Guardrai ls S afe? The Safety Record
Blo g , Def.’s Ex. E, at 52).) Th e second, which t outs the h iring of a n ew SRS emp loyee, also falls far
s h ort o f promoting t he company overall, and it s focus o n a single employee’s exp ertise is an o utlier at
b es t. (S ee Def.’s M em. at 20, 25– 26 (citing S RS Welcomes Automotive Electronics Diagnosti c Expert
Aa ron Beltram, The Safety Record Blog, h ttp://www.safetyresearch.net/blog/articles/ srs-welcomesau t omotive-electronics-diagnostic-expert-aaron-beltram).) Thus, neither article establishes that The
S a fety Record is merely an advertising v ehicle for SRS, as DOT maintains.

22

B.

Libe rman’s Document Re quest, Which Se eks Records So lely Fo r
Publication And Dis semination In The Safety Record, Does No t Seek
Re cords “ For Co mmercial Use”

In her FOIA request letter to NHTSA dated July 11, 2014, Liberman not only
described Th e S a fety Record’s lengthy publication history, she also represented that the
documents she was requesting under the FOIA were being sought “solely for the
purpose of publication and dissemination . . . via The Safety Record.” (FOIA Request,
Def.’s Ex. A, at 2.) Significantly, DOT does not appear to dispute that Liberman does,
in fact, intend to disseminate publicly the information she was requesting, as she has
represented. (S ee Tr. of Oral Arg. at 38 (“I have no reason to think it is not in good
faith what they say they plan to do with it[.]”).) Nevertheless, the agency insists that
any publication of the material via The Saf ety Record is necessarily a “commercial use”
within the meaning of 5 U.S.C. § 552(a)(4)(A)(ii)(II), “because The Safety Record
exists for the purpose of promoting the services that SRS provides and, by doing so, it
furthers the commercial and profit making interests of SRS.” (Def.’s Mem. at 18; see
a lso id . (classifying Th e S a f ety Record as “[a] [c]ommercial [u]se [r]equester”).) The
agency’s interpretation of the “commercial use” proviso is mistaken.
1.

Records Requested By A News-Media Entity In Its NewsDissemination Capacity Are Not Sought “For Commercial Use”

Although news-media entities are often businesses—and, in that sense, are
inherently commercial—the law has long recognized that such commercial entities can
have b o th corporate and news-dissemination functions. FOIA’s fee-waiver provision is
intentionally designed to promote the latter by reducing the costs of informationgathering for journalists and the entities for whom they work, and no less an authority
than the D.C. Circuit has made clear that news-media entities that are seeking

23

information in service of their basic function—disseminating information to the
public—are eligible for the fee waiver because public dissemination is not a
“commercial use” of the requested records. See Na t’l S ec. Archive, 880 F.2d at 1388
(holding that, if an entity “is a representative of the news media by reason of its
publication activities[,]” then it qualifies for fee waivers “insofar as its requests are in
furtherance of that function”). The OMB Guidelines mirror this same sentiment; that
agency’s guidelines unequivocally and categorically provide that “a request for records
supporting the news dissemination function of [a representative of the news media]
shall not be considered to be a request that is for a commercial use.” OMB Guidelines,
52 Fed. Reg. at 10,019. 10
Notably, just as the law recognizes that a corporate news-media entity can
request records in furtherance of its news-dissemination function, it also acknowledges
that not a ll records requests from such an entity are necessarily aimed at news
dissemination. The D.C. Circuit has observed that a news-media entity can also seek
records in its “commercial” capacity—i.e., in service of inward-looking corporate
functions that have no direct relationship with public dissemination of information. S ee
Ca u se o f Action, 799 F.3d at 1121 n.10 (explaining that a request is for commercial use

10

OM B’s in terpretation o f the fee-waiver p rovision does not b ind t he Court and does not receive
C h evron d eference. C ause o f Action, 799 F.3d at 1115; see 5 U.S.C. § 552(a)(4)(A)(vi) (requiring
co u rts t o “determine the mat ter de novo” in FOIA fee-waiver cases). However, t his Co urt finds OM B’s
v iew p ersuasive because it p lainly accords wit h Congress’s p urpose in enacting t he news-media feewaiv er category. S ee N at’l Sec. Archive, 880 F.3d at 1388. Moreover, while t he D.C. Circuit recently
n o t ed t hat OMB’s a uthority t o o pine on t he scope of t he fee-waiver cat egories is o n shaky legal
fo o t ing, see Sack, 823 F.3d at 690 n .4, t his Co urt is n ot relying o n the OMB Gu idelines as an
au t horitative source o f law on t his issue. Rat her, t he Co urt concludes t hat “the manifest purpose of [the
FOIA ], t he p lain meaning o f the applicable regulation [wh ich is id entical t o t he OMB Gu idelines in
relev ant p art], and common s ense” all d ictate t hat n ews-disseminat ion is not a “commercial use” of
reco rds sought under t he FOIA. N at’l Sec. Archive, 880 F.3d at 1388.

24

“[i]f a news-media entity makes the request in its corporate rather than journalistic
capacity”). And it is clear that, if a news-media entity requests documents for such a
corporate use, special fee treatment would not be warranted. See Na t’l S ec. Archive,
880 F.2d at 1387 (“[T]here is no reason to treat an entity with news media activities in
its portfolio, such as CBS, Inc. or the Washington P ost Co., as a ‘representative of the
news media’ when it requests documents, from let us say the SEC, in aid of its
nonjournalistic activities.”).
The structure of the FOIA fee-waiver statutory scheme itself confirms that a
single requester can seek records in different capacities and receive differential feewaiver treatment accordingly. Over a series of provisions, the statute establishes that
news-media entities (along with educational or scientific institutions) fall into one fee
category when such entities are not seeking records for commercial use, and a different
category when they are making requests in a commercial capacity. See 5 U.S.C.
§ 552(a)(4)(A)(ii)(I)–(II) (prescribing separate fee categories for requests seeking
records for commercial use on the one hand, and requests by news-media entities and
educational or scientific institutions that do not seek records for commercial use, on the
other). This is also the case with respect to requesters other than news-media entities
and educational or scientific institutions. See id. § 552(a)(4)(A)(ii)(I), (III); see also
OMB Guidelines, 52 Fed. Reg. at 10,013 (“[I]t is possible to envision a commercial
enterprise making a request that is not for a commercial use.”). And the structural
dichotomy in the FOIA statute between requests for documents for public
dissemination, which are subject to one set of fee standards, and requests for documents
for commercial use, which are governed by different fee rules, strongly supports the

25

conclusion that when a news-media entity seeks records in its j ournalistic capacity—
i.e., in service of its news-dissemination activities—it does not seek records “for
commercial use,” even if that entity is a “for-profit enterprise[]” that has nonjournalistic activities in its portfolio. Na t’l S ec. Archive, 880 F.2d at 1387– 88.
This interpretation is not only reflected in the language and structure of the
relevant FOIA provisions, it also comports with the D.C. Circuit’s overarching view of
the “commercial use” aspect of FOIA’s fee-waiver provision, which is explained above.
That is, unlike the “representative of the news media” requirement, which focuses on
the requester, the “commercial use” provision homes in on the anticipated “use” of the
requested information, see Cause o f Action, 799 F.3d at 1121 n.10, and newsdissemination activity is not a “commercial use,” even when undertaken by a
commercial entity, see Nat’l Sec. Archive, 880 F.2d at 1388. Thus, 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 (see Def.’s Mem. at 18– 19)—must be
rejected.
2.

Th e S a f ety Record ’s Close Association With SRS’s Business Does
Not Convert Its News-Dissemination Activity Into A Commercial
Use

Taking a slightly different tack, DOT contends that, even if the newsdissemination function of a news-media entity is ordinarily distinguishable from that
entity’s corporate functions for fee-waiver purposes, Th e S afety Record is no ordinary
news-media entity. For starters, DOT says, it is the business of SRS (The Sa fety
Record’s owner and parent company) to gather information for its clients, and in fact,
“Th e S a f ety Record’s activities are indistinguishable from the other activities SRS
26

engages in for profit[.]” (Def.’s Mem. at 20.) Furthermore, DOT says, there is a lack
of formal separation between SRS and The Saf ety Record, which does not have its own
employees or corporate registration (id . at 19), and “SRS uses Th e S a fety Record as a
marketing tool that furthers its commercial, trade, and/or profit making interests” (id . at
20). So, for example, “entries in The Sa f ety Record blog relate primarily to product
liability matters in connection with which SRS has been—or could be—retained by
commercial clients, and the blog entries are clearly designed to promote the services
and experience that SRS can provide to potential clients.” (Id. at 19– 20.) Indeed,
according to DOT, the very FOIA request that is the subject of this lawsuit sought
information about “an issue on which SRS h a s a ctively demonstrated its interest by
engaging in advocacy and the administrative rule-making process.” (Id. at 21
(emphasis in original) (citing SRS, P ub. Comment to Fed. Motor Vehicle Safety
Standards; Theft P rotection & Rollaway P revention, 76 Fed. Reg. 77183 (Feb. 15,
2011)).)
This Court is not persuaded that the nature of the relationship between Th e Safety
Reco rd and SRS changes the fee-waiver analysis, so long as The Sa f ety Record is, in
fact, disseminating the information that it receives from FOIA requests to the public,
and is not funneling that information to SRS to be used to service of that company’s
private clients. The news-media fee waiver provision is unquestionably aimed at the
dissemination of government records to the public, Na t’l S ec. Archive, 880 F.2d at
1386, and DOT’s argument about the lack of a formal separation between these entities
is beside the point, because it says nothing about whether and to what extent
publication of the requested records in The Saf ety Record furthers that objective.

27

Moreover, there is nothing in the FOIA that suggests that the news-media fee waiver is
forfeited if a commercial entity has journalistic and non-journalistic divisions that are
housed under a single corporate umbrella, nor is this Court aware of any case that holds
that the pecuniary interests of the corporate division of such an entity necessarily
renders all of the journalist-division’s activities “commercial”; indeed, the leading D.C.
Circuit authority on this subject suggests otherwise. See Nat’l Sec. Archive, 880 F.2d at
1387 (invoking CBS, Inc. and the Washington P ost Co. as examples).
Thus, DOT’s vigorous effort to convince this Court that “The Sa f ety Record and
its for-profit owner[] SRS are so intertwined in purpose and function that the Court (and
the Agency) must consider any commercial interest that SRS may have in the FOIA
request” (Def.’s Mem. at 19) is an argument that sidesteps the critical inquiry at this
stage of the analysis—the u se to which the records will be put—and does so in a
manner that is inconsistent with established law regarding how the “commercial use”
requirement is to be interpreted. What really matters, according to Congress and the
D.C. Circuit, is how the requested records will be used by the commercial entity that
has an established news-media function (i.e., will they be disseminated to the public?),
and the mere fact that such an entity may have a commercial interest in the information
that it seeks does not automatically turn its request into one for commercial use. See
OMB Guidelines, 52 Fed. Reg. at 10,013 (“[Commercial use] is determined not by the
identity of the requester, but the use to which he or she will put the information
obtained. . . . ‘[U]se’ is the exclusive determining criterion[.]”).
This Court also rejects DOT’s contention that Liberman’s publication of FOIA
information in Th e S a f ety Record is necessarily a “commercial use” because the content

28

of Th e S a f ety Record expressly promotes SRS’s services. (See Def.’s Mem. at 19– 20.)
This line of attack is substantively indistinguishable from DOT’s argument that Th e
S a f ety Record is an advertising vehicle for SRS rather than a news media entity (see id .
at 23– 26; Def.’s Reply at 13– 16), and thus, once again, DOT has veered away from the
evaluation of “use” that is the proper focus of the “commercial use” analysis and
wandered back into the thicket of its misguided concerns about the status of this records
requester. In any event, as explained above, Defendants’ characterization of The Sa f ety
Reco rd as essentially the advertising arm for SRS is also manifestly inconsistent with
the record evidence regarding the blog’s publications. (See supra P art III.A.) Thus, the
record not only demonstrates that Th e S a fety Record qualifies as a news-media entity,
but it belies DOT’s contention that publication of information in The Saf ety Record is a
“commercial” use of the records received under of the FOIA because the blog postings
in that publication are actually advertisements for SRS. 11
Finally, DOT is wrong to insist that, even if The Saf ety Record does not
exp licitly advertise SRS’s services, the blog imp licitly “promote[s] the services and

11

To b e clear, by concluding that The Safety Record is not an advertising vehicle for SRS, this Court is
in n o way adopt ing o r endorsing DOT’s contention t hat publication of FOIA material in t he context of
an ad vertisement, as o pposed t o an article or some o ther t ype o f public d issemin ation, wo uld
n ecessarily b e a “commercial use” that disqualifies a news-media entity from receiving t he st atutory fee
waiv er. To read t he “commercial use” p rong t o require an assessment o f t he n ature o f the in formation
t o b e published (i.e., t o require t he Court d etermine whether t he requested records will b e published in
t h e fo rm o f an advertisement) seems manifestly in consistent with t he p urpose, t ext and s tructure o f t he
FOIA , b ecause t hat statute rarely, if ev er, concerns itself wit h the content o f the ultimate article or
p o sting. Co n cluding that the “commercial u se” language in the fee-waiver p rovision relates t o
ad v ertisements as a matt er o f law also appears t o d istort t he t rue function o f t he “commercial u se”
p ro ng in t he fee-waiver p rovision o f t he FOIA statute, which is t o distinguish requests for records t hat
are b eing sought in an entity’s jo urnalistic capacity (i.e., for public dissemination) from t hose that are
b ein g sought in an entity’s corporate capacit y (i.e., for in ternal business use). DOT has n ot provided
an y support for its suggestion that “commercial use” in dicates Co ngress’s intention t hat t he content o f
t h e p lanned publication must b e scrutinized to d etermine whether t he d issemination o f the information
is “co mmercial” in nature (i .e., an advertisement).

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experience that SRS can provide,” because entries in The Sa f ety Record relate to subject
areas in which “SRS has been—or could be—retained by commercial clients[.]” (S ee
Def.’s Mem. at 19–20.) This argument suggests that, if SRS’s pecuniary interests are
the primary motivation behind The Saf ety Blog’s journalistic prowess, then The Sa fety
Reco rd’s news-dissemination activities should be deemed to qualify as a “commercial
use” for the purpose of the news-media fee-waiver provision. (See id. at 20– 21.) But
the D.C. Circuit has specifically held that a news-media entity’s journalistic activities
are not a “commercial use” for the purpose of the fee waiver statute merely because
they are conducted for profit. S ee Na t’l S ec. Archive, 880 F.2d at 1387– 88 (explaining
that withholding fee-waivers from for-profit news-media entities “would . . . frustrate
Congress’s purpose to give the news media special status” because “[m]ost news media
organizations are for-profit enterprises”). And as explained above, it is by now well
established that even a news-media entity that is itself a for-profit company is eligible
for FOIA’s statutory fee waiver with respect to documents that it seeks in its newsdissemination capacity. (See su pra P art III.B.1.) 12
The bottom line is this: DOT’s suggestion that representatives of The Safety
Reco rd blog are precluded from receiving the waiver because the primary purpose of

12

DOT’s profit-motive argument mig ht fare better if t his was a case about FOIA’s “public int erest” feewaiv er category. S ee 5 U.S.C. § 552(a)(4)(A)(iii). Th ere, t oo, “commercial” FOIA requesters are n ot
en t itled t o fee waivers, but in t he “public in terest ” context , t he st atute exp ressly precludes t he fee
d is count if d isclosure of t he requested d ocuments is “primarily in t he commercial i nterest o f t he
req u ester[.]” Id. (emphasis added). This distinction b etween t he news-media fee waiver p rovision and
t h e p ublic in terest fee waiver provision makes a d ifference: courts considering a “public int erest” fee
waiv er evaluate t he p ecuniary int erests o f t he requester, and weigh the private in terests against p ublic
o n es. S ee, e.g., Nat’l Treasury Emps. Union, 811 F.2d at 649. The “commercial u se” language in t he
n ews-media provision d oes n ot in vite any such inquiry. 5 U.S.C. § 552(a)(4)(A)(ii)(II); cf. Antonin
Scalia & Bry an A. Garner, Reading Law: The Int erpretation of Legal Texts 170 (2012) (“[W]here [a]
d o cument h as used one t erm in o ne p lace, and a materially d ifferent term in another, t he presumption is
t h at t he d ifferent term d enotes a d ifferent id ea.”)

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Th e S a f ety Record is to serve as an either explicit or implicit advertisement for the
blog’s parent company not only asks this Court to embark on “a more or less
unresolvable inquiry into the value of journalists’ private goals,” Na t’l Trea sury Emp s.
Un io n v. Griffin, 811 F.2d 644, 649 (D.C. Cir. 1987), it also invites a legal conclusion
about “commercial use” that is manifestly inconsistent with the FOIA statute and the
governing precedents that interpret it. This Court declines that invitation.
3.

Liberman’s Representation That She Seeks Records Only For
P ublication In The Safety Record Is Sufficient To Demonstrate That
She Does Not Seek Records For Commercial Use

Having concluded that a news-media entity is entitled to the statutory newsmedia fee waiver for FOIA requests that are made in its journalistic capacity (see supra
P art III.B.1), and that such an entity is not precluded from receiving the fee waiver
based on its affiliation with a company and/or the fact its news-dissemination activities
are motivated by commercial interests (see supra P art III.B.2), this Court now turns to
address the question of whether, and to what extent, the representations of a
representative of a news-media entity regarding the intended uses for the requested
documents suffice to demonstrate the entity’s eligibility for the fee waiver. As
recounted above, Liberman’s initial FOIA request letter to NHTSA stated that her
request was being “made solely for the purpose of publication and dissemination of the
requested information via Th e S a f ety Record.” (FOIA Request, Def.’s Ex. A, at 2.)
Noting that the requester bears the burden of showing fee-waiver eligibility, DOT
argues that Liberman needed to provide more than “conclusory assertions” about the
anticipated use for the requested information in order to demonstrate that that use was
non-commercial. (Def.’s Reply at 7; see also id. at 12– 13.) This Court disagrees, for at
least three reasons.
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First, it appears that this argument rests, at least in part, on a contention that the
Court has already considered and rejected: that the dissemination of the requested
FOIA information in Th e S a f ety Record furthers SRS’s pecuniary interests in a manner
that constitutes a “commercial use.” That is, if, as DOT has argued, the substantive
overlap between the work that SRS is doing for its commercial clients and the articles
that Th e S af ety Record is publishing can render a FOIA request from The Saf ety Record
a “commercial use” for fee-waiver purposes as a matter of law, then Liberman might
need to say more about the particular information she was requesting for The Safety
Reco rd, and how precisely she intended to use it relative to her work as an SRS
employee, in order to justify the fee waiver in this case (e.g., she might need to
establish that SRS has no interest in the subject matter of the records that are being
sought such that the information was solely relevant to dissemination via The Saf ety
Reco rd). But the legal basis for this alleged duty is spurious, as demonstrated above.
Second, Liberman’s representations about what she plans to do with the records
she receives are a plain statement of fact, and not a matter of law that is subject to
discounting as “conclusory.” Liberman’s letter clearly states that the documents she
requests are being sought “solely” for the purpose of publication; with this statement,
Liberman has plainly indicated that she is requesting the documents in The Safety
Reco rd’s news-dissemination capacity. Liberman also provided numerous examples of
the blog’s prior publications to demonstrate that Th e S a fety Record is a news-media
entity. (S ee FOIA Appeal, Def.’s Ex. E, at 19– 70.) And DOT has not provided specific
examples of what mo re Liberman could have said or done to move her representations
out of the realm of “conclusory” in the agency’s view. Thus, in the absence of evidence

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of bad faith, Liberman’s statements of fact regarding Th e S a fety 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.
Third, and finally, to the extent that DOT’s requester-burden argument is a
actually a veiled attack on Liberman’s veracity (Tr. of Oral Arg. at 22 (counsel stating
that P laintiff “purport[s] they’re going to” publish the requested information on Th e
S a f ety Record blog)), DOT has done little to demonstrate that such doubt is warranted.
Th e S a f ety Record has a long history of requesting documents under the FOIA and then
disseminating them to the public through its articles, and this Court sees no basis in the
record for drawing an inference that Liberman did not, in fact, intend to do the same
when she made the request at issue here. When asked about past or present evidence of
bad faith at the motion hearing, DOT’s counsel did not point to any (see id . at 38
(counsel stating that “I have no reason to think it is not in good faith what they say they
plan to do with it”)), and this Court is not aware that any exists. Furthermore, both the
text of the fee-waiver provision and the OMB Guidelines specifically discourage the
agency from casting such unsupported aspersions; these sources of law plainly indicate
that an agency should only doubt the good faith of a records requester with respect to
fee waivers when the requester has a track record that gives the agency reason for
doubt. S ee 5 U.S.C. § 552(a)(4)(A)(v) (forbidding agencies from requiring advance
payment of fees “unless the requester has previously failed to pay fees in a timely
fashion”); OMB Guidelines, 52 Fed. Reg. at 10,018 (providing that, where a FOIA

33

request makes clear what use the requester envisions for the information sought, an
agency should seek additional clarification “where an agency has reasonable cause to
doubt the use” identified by the requester (emphasis added)). And as far as this Court
can tell, there is no such reason for doubt with respect to the request at issue here.
Thus, this Court cannot accept DOT’s contention that Liberman failed to make a
sufficient showing that the records she requested would not be put to commercial use.
Liberman specifically stated in her FOIA request that she sought records solely for
publication and dissemination in The Sa f ety Record—a news-media entity—and the
agency had no reason to doubt her veracity in this regard. Based on these
representations, NHTSA should have concluded that Liberman was not seeking the
documents for commercial use, and therefore, that she was entitled to the statutory
news-media fee waiver with respect to her FOIA request.
IV.

CONCLUSION
Congress’s chief purpose in enacting the FOIA—and its news-media fee-waiver

provision—was to facilitate the dissemination of information to the public, see
Rep o rters Co mm. f or Freedom o f the Press, 489 U.S. at 772 (describing the purpose of
the FOIA as a whole); Nat’l Sec. Archive, 880 F.2d at 1386 (describing the purpose of
the news-media provision), and the statute clearly contemplates that news-media
entities engaged in information-dissemination activities will get the benefit of a fee
waiver notwithstanding any commercial interest they have in those activities. S ee Na t’l
S ec. Archive, 880 F.2d at 1387– 88. Accordingly, 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

34

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.”
5 U.S.C. § 552(a)(4)(A)(ii). And, second, so long as that representative of the newsmedia is requesting the particular documents at issue in service of the entity’s newsdissemination activities—as opposed to some other internal, commercial (i.e., nonjournalistic) 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. See Nat’l Sec. Archive, 880 F.2d at 1387– 88. The Court finds that
Liberman has satisfied these basic requirements in connection with her FOIA request of
July 11, 2014, and thus she is entitled to a news-media fee waiver under 5 U.S.C.
§ 552(a)(4)(A)(ii)(II). Therefore, as set forth in the separate order that accompanies
this memorandum opinion, DOT’s motion for summary judgment is DENIED, and
Liberman’s cross-motion for summary judgment is GRANTED. 13

DATE: December 31, 2016

Ketanji Brown Jackson
KETANJI BROWN JACKSON
United States District Judge

13

No t ably, although Lib erman h as requested an o rder enjoining DOT t o waive FOIA fees “for exist ing
an d future requests submit ted on b ehalf o f Th e Safet y Record” (Co mpl. ¶ 4), t his Co urt’s g rant of
s u mmary judgment in Lib erman’s favor is limit ed in scope t o t he FOIA request at issue in t his case.
W h ether a g iven FOIA request seeks records “for commercial use” d epends o n t he facts o f the
p art icular request, and “[a]gencies mu st make an in dependent fee status determin ation for each
req u est[.]” Lo ng v. Dep’t of Ho meland S ec., 113 F. Supp. 3d 100, 108 (D.D.C. 2015). This Court’s
s u mmary judgment order is circumscribed accordingly.

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