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Case TitleLIBERMAN v. DEPARTMENT OF TRANSPORTATION
DistrictDistrict of Columbia
CityWashington, DC
Case Number1:2015cv01178
Date Filed2015-07-22
Date Closed2017-01-06
JudgeJudge Ketanji Brown Jackson
PlaintiffELLEN C. LIBERMAN
Case DescriptionEllen Liberman, a freelance writer for The Safety Record, submitted a FOIA request to the National Highway Transportation Safety Administration on Safety Record letterhead for records concerning 2014 safety investigations of vehicles equipped with smart key technology. Liberman requested inclusion in the news media category. The agency denied her request to be considered as news media, indicated her request would cost $2,070, and said it would not begin processing her request until she committed to paying fees. Liberman filed an administrative appeal, which was denied. Liberman then filed suit.
Complaint issues: Fee Category - Media or Educational, Litigation - Attorney's fees

DefendantDEPARTMENT OF TRANSPORTATION
Documents
Docket
Complaint
Complaint attachment 1
Complaint attachment 2
Complaint attachment 3
Complaint attachment 4
Opinion/Order [21]
FOIA Project Annotation: Judge Ketanji Brown Jackson has rejected the Department of Transportation's conclusion that Ellen Liberman, who writes a blog for the for-profit company Safety Research & Strategies, Inc., did not qualify for the news media fee category because her request furthered the commercial interests of SRS. Although agency interpretation of the fee provisions is one of the most-hotly contested issues in FOIA, cases interpreting the statutory provisions and case law are relatively rare. But Jackson's rejection of the agency's decision emphasizes the impact of the D.C. Circuit's decision in Cause of Action v. FTC, 799 F.3d 1108 (D.C. Cir. 2015), which rejected many of the restrictions agencies routinely place on requesters who are not clearly organized to disseminate news. Here, Jackson found that, even relying solely on the 1987 OMB fee guidance, Liberman qualified as a member of the news media for purposes of her request. Liberman writes for The Safety Record, an online publication operated by SRS that reports on regulatory developments, consumer litigation, congressional hearings, and other legislative developments. Liberman made a FOIA request to the National Highway Traffic Safety Administration for records concerning 114 compliance investigations of vehicles equipped with smart key technology. She asked to be included in the news media fee category, explaining that the records she was requesting would be used as part of her reporting for The Safety Record. The agency rejected her request for inclusion in the news media fee category, noting that SRS and The Safety Record were organized for commercial research and advocacy, not for dissemination of news. The agency indicated that Liberman would need to pay $2,070 for processing her request. She agreed to pay the fee under protest, reserving her right to appeal the decision. Liberman filed an administrative appeal of the agency's denial of news media status, pointing out that The Safety Record received 6,000 unique visitors per month and that FOIA requests submitted by SRS were separate from those submitted by The Safety Record, which were used only for disseminating news. NHTSA's chief counsel denied Liberman's appeal, finding instead that "The Safety Record blog is not a distinct entity that can be separated from SRS" and "the publication exists primarily (if not solely) for marketing purposes." Liberman filed suit and two months later the agency told her it was rescinding its prior decision in light of the D.C. Circuit's ruling in Cause of Action v. FTC. A month later, NHTSA rejected Liberman's request on the basis that it was made for commercial use. Jackson began by reviewing statements made at the time the fee provisions were passed in 1986. She pointed out that Sen. Patrick Leahy (D-VT), the Senate sponsor of the fee provisions, had indicated that "any person or organization which regularly publishes or disseminates information to the public should qualify for waivers as a representative of the news media." The 1987 OMB Guidelines on the fee provisions defined "commercial use" as "a use or purpose that furthers the commercial, trade, or profit interest of the requester," but also noted that "a request for records supporting the news dissemination function of [a commercial news-media entity] shall not be considered to be a request that is for a commercial use." Jackson noted that in Cause of Action v. FTC, the D.C. Circuit explained that a determination of who qualified as a representative of the news media "focuses on the nature of the requester, not its request," while the commercial use requirement does not focus on "the identity of the requester, but the use to which he or she will put the information obtained," which can vary from request to request. Jackson noted that in Cause of Action v. FTC, the D.C. Circuit had identified five factors in the news media category provision: "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." Jackson observed that "with this framework in mind, this Court easily concludes that The Safety Record satisfies the five statutory criteria for being deemed a new-media entity." She pointed out that "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" and that the publication "gathers information 'of potential interest to a segment of the public'â€"specifically, people who are interested in automobile and consumer product safety, including the blog posters themselves." Finding The Safety Record easily qualified as using editorial skills, she indicated that "the D.C. Circuit has condoned news-media fee waiver treatment for entities producing works that is far less 'distinct' and that reflect far less in terms of 'editorial skills,' and in fact, the Circuit has held that publishing documents in toto, with scant editorial commentary, suffices." She added that "it is now well-established that online means of distribution. . .can satisfy the statutory requirement that a requester 'distribute [its] work to an audience.' And the 'audience' for such distribution need not be demonstrably large. . .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." Jackson characterized the agency's original position that the contents of The Safety Record did not qualify as news as "utterly misguided." She noted that "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'" and explained that "neither party here has cited a single case in which a court 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 new-media issue separate and apart from the five statutory elements." She also rejected the agency's contention that First Amendment case law on what constituted commercial speech was relevant in this context. She pointed out 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'â€"whether or not it is expressed in a commercial contextâ€"qualifies as 'news' for FOIA purposes." Jackson rejected the implicit argument that because The Safety Record was published by SRS, its FOIA requests were made in furtherance of SRS's commercial interests. Instead, she noted that "the record demonstrates that The Safety Record 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." The agency insisted that Liberman's requests necessarily were made for commercial use because SRS was a for-profit company. Turning again to Cause of Action v. FTC, Jackson noted that the D.C. Circuit had explained that "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 all 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' capacityâ€"i.e., in service of inward-looking corporate functions that have no direct relationship with public dissemination of information." She indicated that "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 conclusion that when a news-media entity seeks records in its journalistic capacityâ€"i.e., in services of its news-dissemination activitiesâ€"it does not seek records 'for commercial use,' even if that entity is a 'for-profit enterprise' that has non-journalistic activities in its portfolio." She pointed out that "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 and news-dissemination activity is not a 'commercial use,' even when undertaken by a commercial entity." Applying these standards, Jackson noted that "DOT's suggestion that representatives of The Safety Record blog are precluded from receiving the waiver because the primary purpose of The Safety 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,' it also invites a legal conclusion about 'commercial use' that is manifestly inconsistent with the FOIA statue and the governing precedents that interpret it."
Issues: Fee Category - Media or Educational, Fee Category - Commercial
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2015-07-221COMPLAINT against All Defendants ( Filing fee $ 400 receipt number 0090-4184088) filed by ELLEN C. LIBERMAN. (Attachments: # 1 Civil Cover Sheet, # 2 Summons U.S. Attorney, # 3 Summons U.S. Attorney General, # 4 Summons Dep't of Transportation)(Sobel, David) (Entered: 07/22/2015)
2015-07-22Case Assigned to Judge Ketanji Brown Jackson. (rd) (Entered: 07/22/2015)
2015-07-222SUMMONS (3) Issued Electronically as to DEPARTMENT OF TRANSPORTATION, U.S. Attorney and U.S. Attorney General (rd) (Entered: 07/22/2015)
2015-08-033GENERAL ORDER AND GUIDELINES FOR CIVIL CASES BEFORE JUDGE KETANJI BROWN JACKSON. The Court will hold the parties and counsel responsible for following these directives; failure to conform to this Order may, when appropriate, result in the imposition of sanctions. Signed by Judge Ketanji Brown Jackson on 08/03/2015. (lckbj1) (Entered: 08/03/2015)
2015-08-054NOTICE of Appearance by April Denise Seabrook on behalf of All Defendants (Seabrook, April) (Entered: 08/05/2015)
2015-08-175Consent MOTION for Extension of Time to File Answer re 1 Complaint, by DEPARTMENT OF TRANSPORTATION (Seabrook, April) (Entered: 08/17/2015)
2015-08-18MINUTE ORDER granting, for good cause shown, 5 Consent Motion for Extension of Time to Answer. Defendant shall answer or otherwise respond to the complaint by 9/28/2015. Signed by Judge Ketanji Brown Jackson on 08/18/2015. (lckbj1) (Entered: 08/18/2015)
2015-09-236Consent MOTION for Extension of Time to File Answer re 1 Complaint, by DEPARTMENT OF TRANSPORTATION (Attachments: # 1 Text of Proposed Order)(Seabrook, April) (Entered: 09/23/2015)
2015-09-23MINUTE ORDER granting, for good cause shown, 6 Consent Motion for Extension of Time to Answer. Defendant shall answer or otherwise respond to the complaint by 11/12/2015. Signed by Judge Ketanji Brown Jackson on 09/23/2015. (lckbj1) (Entered: 09/23/2015)
2015-11-127ANSWER to Complaint by DEPARTMENT OF TRANSPORTATION.(Seabrook, April) (Entered: 11/12/2015)
2015-11-16MINUTE ORDER. Before the Court in this FOIA case are a complaint and an answer. It is hereby ORDERED that the parties shall promptly confer and file a joint proposed schedule for briefing or disclosure, by 12/4/2015. Signed by Judge Ketanji Brown Jackson on 11/16/2015. (lckbj1) (Entered: 11/16/2015)
2015-11-198PROPOSED BRIEFING SCHEDULE (Joint) by ELLEN C. LIBERMAN. (Sobel, David) (Entered: 11/19/2015)
2015-11-24MINUTE ORDER. Upon review of the parties' 8 proposed briefing schedule, it is hereby ORDERED that the following schedule is set in this matter: Defendant shall file its motion for summary judgment by December 18, 2015; Plaintiff shall file its opposition and cross-motion for summary judgment by January 25, 2016; Defendant shall file its reply and opposition to Plaintiff's cross-motion by February 26, 2016; and Plaintiff shall file its reply by March 14, 2016. Signed by Judge Ketanji Brown Jackson on 11/24/2015. (lckbj2) (Entered: 11/24/2015)
2015-11-30Set/Reset Scheduling Order Deadlines: Cross Motions due by 1/25/2016. Response to Cross Motions due by 2/26/2016. Reply to Cross Motions due by 3/14/2016. Summary Judgment motions due by 12/18/2015. Response to Motion for Summary Judgment due by 1/25/2016. Reply to Motion for Summary Judgment due by 2/26/2016. (gdf) (Entered: 11/30/2015)
2015-12-179Consent MOTION to Amend/Correct Set/Reset Scheduling Order Deadlines, Briefing Schedule by DEPARTMENT OF TRANSPORTATION (Seabrook, April) (Entered: 12/17/2015)
2016-01-0510MOTION to Dismiss for Lack of Jurisdiction , MOTION for Summary Judgment by DEPARTMENT OF TRANSPORTATION (Attachments: # 1 Statement of Facts, # 2 Memorandum in Support, # 3 Exhibit A - M)(Seabrook, April) (Entered: 01/05/2016)
2016-01-06MINUTE ORDER granting, for good cause shown, 9 Consent Motion to Amend the Briefing Schedule. It is hereby ORDERED that the briefing schedule in this matter is amended as follows: Defendant shall file its motion for summary judgment by 1/6/2016; Plaintiff shall file its consolidated opposition and cross-motion for summary judgment by 2/5/2016; Defendant shall file its consolidated reply and opposition to Plaintiff's cross-motion by 3/5/2016; and Plaintiff shall file its reply by 3/21/2016. Signed by Judge Ketanji Brown Jackson on 1/6/2016. (lckbj1) (Entered: 01/06/2016)
2016-02-0211Consent MOTION to Amend/Correct Order on Motion to Amend/Correct, Set/Reset Deadlines,,,, by ELLEN C. LIBERMAN (Attachments: # 1 Text of Proposed Order)(Sobel, David) (Entered: 02/02/2016)
2016-02-02MINUTE ORDER granting, for good cause shown, 11 Consent Motion to Amend Briefing Schedule. It is hereby ORDERED that the briefing schedule in this matter is amended as follows: Plaintiff shall file its consolidated opposition and cross-motion for summary judgment by 2/9/2016; Defendant shall file its consolidated reply and opposition to Plaintiff's cross-motion by 3/9/2016; and Plaintiff shall file its reply by 3/23/2016. Signed by Judge Ketanji Brown Jackson on 2/2/2016. (lckbj1) (Entered: 02/02/2016)
2016-02-0912Memorandum in opposition to re 10 MOTION to Dismiss for Lack of Jurisdiction MOTION for Summary Judgment filed by ELLEN C. LIBERMAN. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Statement of Facts (Response), # 7 Text of Proposed Order)(Sobel, David) (Entered: 02/09/2016)
2016-02-0913Cross MOTION for Summary Judgment by ELLEN C. LIBERMAN (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Statement of Facts, # 7 Text of Proposed Order)(Sobel, David) (Entered: 02/09/2016)
2016-02-2314Consent MOTION for Extension of Time to File Response/Reply as to 10 MOTION to Dismiss for Lack of Jurisdiction MOTION for Summary Judgment , 13 Cross MOTION for Summary Judgment by DEPARTMENT OF TRANSPORTATION (Seabrook, April) (Entered: 02/23/2016)
2016-02-24MINUTE ORDER granting, for good cause shown, 14 Consent Motion to Amend Briefing Schedule. It is hereby ORDERED that the briefing schedule in this matter is amended as follows: Defendant shall file its consolidated reply and opposition to Plaintiff's cross-motion by 3/31/2016; and Plaintiff shall file its reply by 4/20/2016. Signed by Judge Ketanji Brown Jackson on 02/24/2016. (lckbj1, ) (Entered: 02/24/2016)
2016-03-3115REPLY to opposition to motion re 10 MOTION to Dismiss for Lack of Jurisdiction MOTION for Summary Judgment filed by DEPARTMENT OF TRANSPORTATION. (Attachments: # 1 Exhibit N - Supplemental Declaration, # 2 Exhibit O - 2012 FOIA Report)(Seabrook, April) (Entered: 03/31/2016)
2016-03-3116Memorandum in opposition to re 13 Cross MOTION for Summary Judgment filed by DEPARTMENT OF TRANSPORTATION. (Attachments: # 1 Exhibit N - Supplemental Declaration, # 2 Exhibit O - 2012 FOIA Report)(Seabrook, April) (Entered: 03/31/2016)
2016-04-2017REPLY to opposition to motion re 13 Cross MOTION for Summary Judgment filed by ELLEN C. LIBERMAN. (Sobel, David) (Entered: 04/20/2016)
2016-07-15MINUTE ORDER setting hearing on 10 Motion to Dismiss or, in the Alternative, for Summary Judgment and 13 Cross-Motion for Summary Judgment for 10/25/2016 at 10:30 AM in Courtroom 17 before Judge Ketanji Brown Jackson. Signed by Judge Ketanji Brown Jackson on 07/15/2016. (lckbj1) (Entered: 07/15/2016)
2016-09-0818NOTICE OF SUBSTITUTION OF COUNSEL by Damon William Taaffe on behalf of DEPARTMENT OF TRANSPORTATION Substituting for attorney April Denise Seabrook (Taaffe, Damon) (Entered: 09/08/2016)
2016-10-25Minute Entry for Motion Hearing held before Judge Ketanji Brown Jackson on 10/25/2016. Oral argument heard, re 10 MOTION to Dismiss for Lack of Jurisdiction, MOTION for Summary Judgment filed by DEPARTMENT OF TRANSPORTATION and 13 Cross MOTION for Summary Judgment filed by ELLEN C. LIBERMAN. Motions taken under advisement. (Court Reporter: Patricia Kaneshiro-Miller) (tth) (Entered: 10/25/2016)
2016-11-2819NOTICE OF SUBSTITUTION OF COUNSEL by April Denise Seabrook on behalf of DEPARTMENT OF TRANSPORTATION Substituting for attorney Damon Taaffe (Seabrook, April) (Entered: 11/28/2016)
2016-12-3120ORDER granting Defendant's 10 Motion to Dismiss for Lack of Jurisdiction; denying Defendant's 10 Motion for Summary Judgment; and granting Plaintiff's 13 Motion for Summary Judgment. Signed by Judge Ketanji Brown Jackson on December 31, 2016. (lckbj2) (Entered: 12/31/2016)
2016-12-3121MEMORANDUM 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) (Entered: 12/31/2016)
2017-01-0622Consent MOTION for Extension of Time to Move for an Award of Attorney's Fees and Costs by ELLEN C. LIBERMAN (Attachments: # 1 Text of Proposed Order)(Sobel, David) (Entered: 01/06/2017)
2017-01-09MINUTE ORDER granting, for good cause shown, 22 Consent Motion for Extension of Time to Move for an Award of Attorney's Fees and Costs. It is hereby ORDERED that any motion for attorneys fees and costs is due on or before 4/3/2017. Signed by Judge Ketanji Brown Jackson on 1/9/2017. (lckbj1) (Entered: 01/09/2017)
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