Wednesday, February 7, 2007

Recent Readings 1

Ideas from recent readings

I want to use the blog to also develop and evolve my thinking and to share reflections of recent readings. These pieces are not meant to be comprehensive reviews of articles or books but more the ideas or bits and pieces that have struck a chord with me.

1. Herbert Kubicek “Third-generation Freedom of Information in the Context of E-Government: The Case of Bremen, Germany” The End Users’ View 275-286 in G. Aichholzer & H. Burkert (Eds.), Public Sector Information in the Digital Age: Between Markets, Public Management and Citizens’ Rights. Edward Elgar Publishing Limited, Cheltenham. 2004

Kubicek ponders why it is difficult to implement appropriate FOI procedures despite recognition of the value or merits of a basic right to freedom of information. (275)

Arguments against FOI implementation are generally focused on conflict with privacy and administration and other costs. He argues that the ‘pros and cons have been exchanged for more than 10 years. And the discussion moves in circles.” (276) A change in paradigm is needed to overcome objections to FOI and avoid “circular discussions and to keep up with changes in society and public administration in light of the information/knowledge society and e-government.” (276)

Writing from a computer science perspective Kubicek adds an interesting layer of analysis to FOI.

Kubicek discusses the issue of fees but contrasts the charges for an indeterminate ‘fishing’ or searching exercise and the appropriate fees in a well organisied system where users are assisted to target requests (along lines of the Australian Law Reform Commission and Administrative Review Council Report No. 77 in 1996 recommendations on fees) (277)

“All second-generation FOI legislation implicitly supposes that the citizens know exactly which document or file they want to access and that they are able to articulate this in the terminology of the administration.’ (277)

[The concept of waves of FOI development – see Al Roberts' Black Box or versions of development -and my software analogy of Australian FOI design ie versions 1.0 to 1.(?) in “Freedom of Information: The experience of the Australian states - an epiphany?” Federal Law Review Vol 29, 2001 , 343-358) is an interesting one].

“Access to information requires orienting or meta-information.” (277)

Role traditionally played by journalists, librarians and other information specialists. [a point made by Robert Hazel – article title escapes me]. In many jurisdictions this role is either explicitly, or implicitly, allocated to FOI officers who are left with the task of (if they are willing, resourced, applicant orientated or trained to act as an information guide. However many FOi systems enter a downward spiral (often due to under resourcing – a key point from the Canadian Access to Information Task Force Report) where information orientation is withdrawn and consequently requests become more time consuming and occasionally become a little more than a “guess what is in my hand” game.

Paradoxically the world wide web has seen the development of Google, other search engines and services (Wikipedia etc) that support or supply this information access infrastructure/capacity ((277).

“Original FOI legislation followed a pull model of information provision.” (279) that requires an interested citizen to make the effort to request (needing appropriate meta-information or access infrastructure) – very costly, disruptive (a theme addressed in the Canadian Access to Information Task Force Report 2002 and my Spin article - "Freedom of Information and the delivery of diminishing returns or how spin doctors and journalists have mistreated a volatile reform," in The Drawing Board: An Australian Review of Public Affairs, Volume 3, Number 2: March 2002, 187–207.)

A push strategy reduces cost, helps target information, tries to ensure or improve information quality. This would avoid the Harry Arthurs critique of ‘fishing for fragments of information’ or the Geoffrey Palmer observation that the documentary trail/record only tells part of the story. In a pull environment the best you can hope for is a partial (or at times) unhindered access to the documentary record whereas in a push environment that original documentary record should be supplemented by reflection, commentary or subsequent knowledge.

Kubicek argues that we need to try and re-conceive our idea of FOI to help realise the promise or potential of an information society. He suggests a trajectory for 3rd generation FOI (with an interesting diagram) which would proceed from pull to push, and from dispersed listings (or nonlistings) to comprehensive user-centred indexing. (280)

This analysis of non-user-centered FOI highlights one of the key weaknesses or deficiencies of FOI. Indeed a lot of e-government activity is very much motivated aby and designed to be government-centric.

In the last part of the article Kubicek explores the impediment, or dragging effect of trying to manage/implement e-government purely from the perspective or focus of internal users/stakeholders. He advocates ‘back-office integration’ to integrate internet and intranet operations. (284-285) He argues that “using filters, the same databases can be open for access by citizens.” (285) A position Al Roberts explores in his chapter Liquid Paper in Blacked Out: Government Secrecy in the Information Age.

Kubicek argues rather than constructing an intra-government version of e-government where we subsequently attempt to place a FOI/access regime over the top “the access of citizens should be included as one of the knowledge objectives within the knowledge management cycle.” (285)

The concept of a knowledge management cycle is an interesting one – definition of knowledge objectives, identification of relevant knowledge areas and elements then “acquisition, structuring and indexing are followed by distribution, monitoring and evaluation of usage, maintenance and revision of objectives,” (285)

Most FOI schemes would be considered poor or dysfunctional knowledge management systems, This was a critique of the FOI process in Canada by the Access to Information Review Task Force that FOI failed to be conceived of or used as a learning tool.

In Kubicek’s view a knowledge management perspective puts a dynamic view on data and information. (285)

This argument has a lot of resonance with the insights of the Canadian Access to Information Task Force derived from their system(s) analysis of FOI.

I remember once getting a phone call from a South Australian economics academic (after I had appeared on a local radio show) asking what were the measurable benefits or gains – or how do we assess – the impact of FOI. A recent study commenced by the Constitutional Unit at University College London on evaluating the impact of an FOI Act may help give us a response to this question.

Kubicek’s article links to another set of recent reading

2. John Taylor – The Information Polity in William H Dutton (ed) Society on the Line: Information Politics in the Digital Age, Oxford University Press 1999, 197-199.

This brief overview of Taylor’s concept explores the impact/relationship of ICT on public administration.

Taylor states “As the governments of many countries come to redefine their governance processes through the intensive application of ICTs, so we are provided with opportunities to explore the characteristics of the emergent ‘information polity’.

In an earlier article Taylor and Bellamy (1997) explained that five sets of relationships lie at the heart of the information polity –

Taylor makes the point that whilst theoretically new computer networks, systems and processes pose challenges to “long-standing organizational arrangements with the machinery of government …Organizational arrangements establish powerful interests which both shape and resist change, however, and outcomes are shaped from the mutual adjustments made with them.” (197)

At their most benign these system legacies are a major drag on new developments whether in the ICT area (Taylor’s focus) or FOI. Therefore Taylor sees the need to focus not just on the new system’s, processes but to analysis the ‘evolutionary nature of the political system, or polity.” (198).

For Taylor this focus on the relationships of an information polity has a powerful explanatory power.

For me the concept of an information polity or information polities is very interesting because it encourages (as with Stiglitz’s information asymmetry) to ask what was the nature of the information polity (or what type of information asymmetry existed in jurisdiction X) before FOI was introduced and 5, 10, 20 years on what has happen to that information polity or the level and degree of information asymmetry. There would be some interesting single country and comparative research studies that could be developed from applying this analysis.

3. Taylor applied the concept of information polity and analysis in John Taylor, Miriam Lips and Joe Organ , “Freedom with Information: Electronic Government, Information Intensity and Challenges to Citizenship” in Richard Chapman and Michael Hunt (ed) Open Government in a Theoretical and Practical Context, Ashgate 2006

This article explores how “new forms of citizen identification in electronic government may be enabling governments to reshape their relationship to citizens” (125) . The article focuses on UK but has wider applicability.

This article defines an information polity as a “political system made comprehensible by the information that flows, or fails to flow, around its constituent parts. The relationship between departments of government, between government and other agencies including voluntary and private sector bodies, between administrators and politicians the governmental system and the citizen, are essentially informational.” (136)

Taylor et al argue that the adoption of an information polity analysis allows or encourages “an x-ray understanding of the body politic.” (136) The authors conclude that using an information polity analysis leads to a number of more interesting research questions in particular “What is actually happening to the information asymmetries that exist between government and the citizen? Are they becoming narrower or wider in a contemporary polity characterised by both freedom with and freedom of information?” (136) They also suggest that this analysis concentrates our research into understanding information flows, variable intensity and changes in informational relationships. This fits well with a number of themes in Kubicek’s article and my recent work (Freedom of Information Practices and the forthcoming work with Peter Sebina – Information Flows).

Taylor et al argue that this intensity and recourse to new levels and types of citizen identification and information access has occurred simultaneously with the introduction of FOI in the UK. So using Taylor’s information polity concept the information networks, relationships etc have undergone a profound change.

Taylor et al argue that there has developed an electronic mixed economy (greater recourse to private entities and non0-government organizations to deliver/administer services – requiring different types and levels of access to government e-information. The authors wonder “does the virtual relationship, based as it is upon new flows of data, supervene and thereby over-ride the nominal, expressed relationship that assumes independence?” (129)

Taylor et al argue that projects such as “Gateway” (a single entry portal to government services – over 5 million users, 50 government services in 2004) that relies on a variable trust profile will create in this particular information polity a ‘layering of citizenship’ (129-130). “The most trusted layers of citizens on the top and the least trusted at the bottom, with as many percentage layers in between as governments chooses to assign. Those citizens with the highest trust ratings will find on-line service transactions with government easier to navigate and conclude than those from lower ratings.” (130)

Taylor et al track how the expansion of the capacity, and the application of personalized service provision in e-government (accumulating browsing information and other data) not only reduces information asymmetries between service providers and citizens but also creates a new informational relationship with governments. (131-132) They argue that on-line personalization and modification of services delivered to citizens, at the moment, is more about changes to service delivery as a consequence of government collecting more information ( due to responses to security threats, technological capacity etc) on users than it is about “empowerment of citizen groups to devise public policy solutions.” (132)

In the terms of Kubicek there is a move towards a more sophisticated “push” of information to targeted audiences but absent a citizen centered focus. Taylor et al accept this as a citizen-centric approach but I would still lean towards describing it as government-centric (the drivers, focus and efficiencies are more government orientated and initiated whilst the citizen enhancements/benefits are welcomed by-products).

For Taylor et al this information gathering – in order to tailor services – allows for and facilitates the sorting of citizens by types (whether postcode, service use, region or level and type of engagement with government). They then argue that “the layering of citizenship, and the typing and sorting of citizens, can thus be seen to work with each other to produce complex matrices of citizen groupings” (133) For example the vertical column may be organised by social sorting (postcode, service use) and the rows of the ‘the matrix are formed from layering of trust profiles.” (133)

So returning to Taylor’s earlier concept of an information polity it becomes important to ask what type of ‘information citizen’ is someone. A receiver, a user, a converter/go-between (journalist etc) and how does the flow, use, connectiveness of each information citizen type vary/intensify/change over time,

So what Taylor et al describe as the drive ‘for citizen identification, whether undertaken for conventional e-government services or for security reasons” (134) produces changes in the nature and relationships of the information polity (which will vary from country to country).

Most of our FOI literature and thinking is based or rests upon a fairly static conception of information. Government collects, creates and uses ‘public information’ and FOI provides some degree of limited access to that information. Whilst the slowness and adequacy of that access is seen as a problem it remains a fairly unchanged problem. Yet Taylor et als analysis is depicting an information environment that is rapidly changing and where the concept (and actuality) of citizenship may be significantly recast.

The authors argue for a change in researchers (e-government, public administration etc) approach to these issues. The concern is that current approaches in those fields (if not others as well) is based on an “inherent technological approach by which it remains charaterized. This is thinking that, unsurprisingly, has given rise to the adoption of the prefix ‘e’ in the languages of so many societies, capturing as it does, in simple form the cpmmonplace mind set of technological determinism – begin with the electronic and all else follows. The prefix ‘I’ (for information) would lead to thinking in a different, altogether more complex direction, yet it is only by understanding new information resources, policy making and citizenship, and plan for them.” (135-136)

Some follow up thoughts arising from these articles

FOI’s capacity as a catalyst for better governance seems dependent/determined by a number of variables including;

The type of legislative architecture or policy program adopted ie
  • Whether front-end (Sweden, New Zealand) or rear end focused
  • Push or pull approach to information distribution
  • Evolutionary or revolutionary
Nature of the information environment (level and type of information asymmetry/ies)

Type of information polity

Whether implemented and/or administered as a program or simply launced as a once-off stand alone initative

Role or performance of information intermediaries/converters/brokers

Whether designed and operated as a knowledge system

The way different citizens/groups operate (ie role of civic society, the type of 4th estate etc)

I agree with Taylor that a focus on the “I” – concentrating on information flows, intensity or non-flows etc allows us to construct a different and better understanding about FOI and information management within and between different countries and eras.

An interesting research project would be to determine a profile of an information environment/information polity pre FOI (ie Tasmania prior to 1993) and post FOI.

Next on my reading list is Taylor’s “Information as X-ray: What is Public Administration for the Information Age? In I Th. M. Snellen and WBHJ van de Donk – Public Administration in an Information Age: A Handbook, IOS Press, Amsterdam 1998.

Monday, February 5, 2007

Work in Progress - "Information Flows"

Work in progress - ‘Information Flows – the real art of information management and freedom of information’

One of the purposes for this Blog is to allow me to reflect upon and share the work I have in progress – from almost completed articles to those articles or ideas that are still in the early stages of conception – after a chance meeting or the tangential spin off from someone’s comment.

The article closest to completion is a joint collaboration with Peter Sebina, ‘Information Flows – the real art of information management and freedom of information’ which is being prepared for the May edition of Archives and Manuscripts.

The article is an attempt to examine the interrelationship and interplay between FOI and records management. We apply a corporate governance model to government to address information asymmetries between state and citizens and argue that the capacity of FOI, coupled with good records management can be an agent of significant cultural change.

The genesis of the paper goes back to 1993. One of the first major papers I did was on the relationship between FOI and Records management written for the 10th Records Management Conference that was held in Hobart in 1993. One of my, if not my first major public presentation. The piece was a very rushed and limited report of a short survey conducted by my students and myself that looked at what was written about records management and FOI in the literature and what actually took place in the early months of implementation (Tasmania Jan-Aug 1993). My conclusion was that there was a relationship but it was not the cause and effect – FOI leads to better record keeping – that appeared in most of the literature. My analysis suggested that there were +ve and –ve impacts, strong and weak effects, and other developments (software, increasing professionalism etc) that had little direct linkage with FOI.

My thoughts turned to other areas and I never did come back and carry out a more major and comparative study (a point Peter Sebina critisied me for in his PhD thesis. In early 2003 I was invited to speak at the 23rd Records Management Conference. I expressed my concern about being booked so far in advance (my recordkeeping system didn’t extend 3 years into the future). 18 months out from the conference I provided a title and abstract. 15 months out from the conference I met Peter Sebina in London, through Gervase Hood at the UK Department of Constitutional Affairs and over a lovely lunch in a small café in Tufnell Park (on the Northern Line) we introduced each other to our respective expertise (Peter archives and records management , me FOI, Stiglitz etc). An archvist/academic from Botswana and a Tasmanian law academic exchanging information face-to-face in a low tech café.

Over the next 15 months Peter would send me drafts of his thesis and I would pass back suggestions and reflections on ideas generated while reading his drafts. Peter would then convert those reflections into more considered sections of his thesis and a kind of action research cycle continued.

When I came to prepare my conference paper I discovered that I was having great difficulty in distinguishing my ideas from work in Peter’s thesis or whether I had taken one of Peter’s insights and then further refined. At another meeting in London, June 2006 Peter suggested that we should collaborate on several articles. So the conference paper became a joint effort.

Currently the paper’s introduction reads

In this paper we put forward some ideas about trying to take access to information from where it currently is - a few painful, costly and hard fought steps from its strongly resisted implementation - towards where it should be in an information age and an age of information. The current state of play in Australia after 20+ years of experience is barely measurable. The comments in this paper are focused on the capacity of citizens to access non-personal affairs information on a routine and relatively unproblematic basis. If in other areas of the information revolution we had accepted the same minimal results as we have with FOI then the internet, laptop computers, I-pods and Blackberries would have all remained unbelievable elements of speculative science fiction.

We explore some of the key paradoxes and riddles of the information management and Freedom of Information relationship. Joseph Stiglitz’s ideas of information economics are applied to demonstrate why records management and FOI are not only compatible but essential partners in an information age. The way institutions and society manage the access to, and protection of, information is a critical catalyst in the creation of good governance and a deliberative democracy. Information managers can provide important insights for those concerned with increasing transparency and accountability. In an age of information it should be of little surprise to find that the rapid uptake of laws like FOI has been phenomenal. In the last decade the number of countries with some type of FOI legislation has increased from a small handful to over 70 countries. Yet this outbreak of transparency is bound to disappoint unless records management, FOI, privacy and archives are understood as an interplay between several different information systems. The direction, timing and quality of information flows becomes the key issue and the avoidance of stagnancy an important objective.

We need to develop better theories and consequently better tools of analysis so as to finally arrive at what our parliaments thought they were achieving with a stroke of the pen two decades ago. This critique is not meant to underplay the achievements of access legislation. Information on an hourly basis is entering the public domain via access requests lodged around the world. A recounting of successful cases can be an inspiring experience. Reading the first chapter of Alasdair Robert’s new book Blacked Out: Government Secrecy in the Information Age is such an experience. Yet as the rest of the chapters in his book, and indeed the title, suggests those highlights are often more the exception than the rule. Especially for those wanting to use access to information regimes to engage on an informed basis in public policy debate, discussion, formulation, implementation and evaluation.

We conclude


This paper has only concentrated on one key facet of the complex and dynamic relationship between FOI and records management. We have suggested that the operating rationale of the corporate governance model can be applied to the public sector to address the problem identified by Stiglitz of significant information asymmetries between state and citizens. When coupled to a sound and dynamic records management system FOI has a significant cultural change capacity. We have approached public sector information management from a generally static perspective and usually with a frame of reference limited or isolated to a single perspective such as FOI, privacy, archives etc.

Our attention should be redirected to managing information flows. Whilst Chadwick’s 19 word mantra is simplistic it does provide us – whether as records managers, citizens, information custodians or an inquiring 4th estate – with a rough ready reckoner. Adapting the corporate sector model of governance to a public sector environment provides a citizen-centric framework that is focussed on information flows rather than the alternative of an ad hoc and patchwork government information environment that focuses on warehousing information.

The paper has now been accepted by Archives and Manuscripts and Peter is just finishing off some of the suggestions by the referees. Interestingly those review comments sparked a debate about whether the article was better suited for a readership outside of the Archives and Manuscripts audience. Precisely why I decided to follow Al Robert’s example and make the dissemination of my material more user friendly and accessible via my new web site and this blog.

Another example of this disciplinary/field restriction on the flow of information is the fairly slow impact of Stiglitz’s work on information asymmetry and FOI. Whilst Stiglitz’s work is widely available (through his books and his own website see and his work on information asymmetry and FOI went through several reiterations from 1998-2002 the most useful rendition is Chapter 2 in The Right to Tell: The Role of Mass Media in Economic Development published by the World Bank in 2002 (see

Hopefully over the next year or so Peter and I will be able to write a couple more articles teasing out these ideas and more fully exploring the FOI – Records Management relationship.

Peter and I would like to thank Peter Timmins, Alasdair Roberts, Paul Hubbard and Ron Fraser for feedback on earlier drafts and/or ideas that informed our thinking.

Saturday, February 3, 2007

Peatling and Department of Employment and Workplace Relations

The decision by Deputy President GD Walker in Peatling and Department of Employment and Workplace Relations [2007] AATA 1011 (12 January 2007) is one that needs to be fiercely contested. As Matthew Moore indicated in his column “Public Interest Comes Second Again” if Professor Walker’s reasoning is allowed to go unchallenged then many journalists (unless they are from Professor Walker’s mythical country radio station that is only intending to use the FOI Act for a single request on a very narrow and local public interest issue) are going to be stymied by large fee estimations.

The result in Peatling, 15 months after the initial application, means that any major Australian media organization that takes a professional approach to FOI – appointing an FOI Editor, making several requests a week, producing stories that use any information released under FOI – will not qualify for any fee waiver no matter how compelling the public interest arguments supporting the release of the information.

In Deputy President’s Walker’s words at para 114 “where the request for access is made in the ordinary course of the media organisation’s business and there is no evidence that it could not proceed with the request if the charges were not waived or reduced” then all prospects of a fee waiver in the public interest are removed. Deputy President Walker in para 116 struggles to find two possible (and very unlikely) exceptions to his new sweeping “media organization” test for interpreting Section 29. In a rare feat the Deputy President is able to use de Tocqueville and Thomas Jefferson as stepping stones to his final position.

Deputy President Walker using a handful of tribunal decisions (most decided within the last few years) and the words from Paragraph 81 of Attorney-General’s Department Memorandum 29: Fees and Charges referring to “a commercial or other benefit” (Deputy President Walker’s emphasis) has now effectively barred the major media organizations in Australia from receiving fee relief and exposed journalists such as Matthew Moore and Michael McKinnon to the constant operational difficulty of going cap in hand to their bean counters for every major federal FOI request.

The Australian Law Reform Commission and Administrative Review Council Report in 1996 specifically rejected a ‘multiple track’ (para 14.13) approach to federal FOI fees. Indeed the ALRC/ARC preferred position was to charge according to the amount released.

Deputy President Walker’s decision ought to be challenged by The Sydney Morning Herald but the cost factor and the result in McKinnon’s case will most likely deter Fairfax. The challenge would be vigourously defended by the government, who according to Moore have spent over $200,000 already on this case. As McKinnon’s case demonstrated the Commonwealth government is more than willingly to rack up multi-million dollar legal bills.

There is no doubt that at a federal level the efforts of Michael McKinnon, and more recently Matthew Moore, have started to annoy Ministers and senior bureaucrats. The use of fees as a “shield” therefore has become a more attractive option. In the Peatling case , the department had rolled out several novel, and to use a moderate word , inventive arguments for refusing to waive a fairly excessive fee estimation. Matthew Moore and SMH’s lawyer Mark Polden managed to counter and win on every ground except two. Importantly they persuaded Deputy President Walker to follow the High Court’s lead in McKinnon and dismiss the credibility of the argument that information might be potentially misleading or confusing.

Unfortunately Deputy President Walker, quoting Justices Heydon and Callinan from McKinnon, gave further legs to the argument that the public interest is not well served by releasing information where material parts have been overtaken by events and are out-of-date. In doing so Deputy President Walker accepted that the argument was ‘rational’ and therefore acceptable. He ignored the particular circumstances of McKinnon (the interpretation of the specific and isolated requirements of Section 55) and failed to weigh that argument against arguments for release. In Peatling his approach made little difference because he combined all the arguments to find that Fairfax had on balance demonstrated that it would be in the public interest to waive fees if not for his new ‘media organization” test. However it is likely that we will see many more claims that information should not be released because it is outdated or redundant – an argument, in my view, resoundingly and convincingly rejected by Justice Ruth McColl in General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84.

Other points from this case

The hiring of a senior partner in a major law firm to personally examine 2600 pages of documents – Tactic 12 in “How to undermine a FOI Request”

The switching of arguments for non-release between the internal review decision and the AAT hearing imposed a heavy burden on Matthew and Mark. Some of my students had carried out research for the earlier arguments which became redunant with the switch in the department's position.

The majority of the 2900 pages of documents were kept in various folders marked “Cabinet-In-Confidence” or “In-Confidence” and secured in locked filing cabinets. The documents included policy deliberations, printed out emails, spreadsheets, summaries etc of which only some were “developed specifically to produce information for use in a cabinet submission.” (Para 23)

Deputy President Walker at paras 62-63, seemed to indicate that the simple marking of documents “Cabinet-in-Confidence” gave them a strong prima facie entitlement to exemption.

From an information/record management perspective it begs the question about how efficient, or effective, is the practice of both physically and intellectually locking such a wealth of policy development information in restricted filing cabinets and under highly restricted classification access?

Australian courts and tribunals (especially legal members) seem to give an automatic deference to claims for sensitivity as a theoretical starting point rather than requiring a demonstration of the actual sensitivity of the documents in question. The tone of Deputy President Walker’s comments suggested that merely having these labels on the files was sufficient for him to decide against allowing access.

One observor has noted to me that " My only comment on the Peatling – DEWR decision is that Walker DP seems to have misconceived the public interest test in that he is saying the documents would be exempt so there is no public interest in their disclosure. The correct test in section 29 is whether, if the documents were released (even if they are never released), would that release be in the public interest? You will notice that Stephen Gaegler is very careful in his submissions not to take the approach that Walker has done. Clearly, Stephen understands the correct test. "

Harry Hammitt a US FOI commentrator outlines the position in the US

Media requests have always been presumed to have a higher public interest potential than the average request since reporters are generally pursuing something newsworthy and have a greater capacity to disseminate information publicly than does the average requester.

However, the press has never been
identified as a group in FOIA until the 1986 amendments. At that time, the fee provisions were substantially overhauled and Congress created three separate categories of requesters. The most preferential of these categories was for "a representative of the news media" and also included an educational or scientific institution.

This category, encompassing these
two discrete groups, can not be charged search time for locating records and can only be charged for duplication after 100 free pages. The public interest fee waiver standard (agencies can waive all or part of fees) was also changed from "generally benefiting the public" to "contributing significantly to public understanding of the operations or activities of government." Although OMB was given the job of writing guidance for the new fee provisions, the Justice Department immediately jumped in with an Assistant Attorney General's Memo interpreting the public interest fee waiver language as narrowly as possible. DOJ then proceeded to ram its language down the throats of most other agencies so that most agency regulations reflect DOJ's multi-factor analysis that makes it more difficult to get a fee waiver rather than easier. OMB finally provided guidance on the rest of the fee provisions and defined "representative of the news media" as someone who was involved in gathering and disseminating information of current interest to a discernible segment of the public.

When there was doubt, media requesters had to show the agency that they had
some kind of track record that would suggest they could publish or disseminate information. This has always made it somewhat more difficultfor free-lancers, particularly ones who are just starting their careers. In a case involving the National Security Archive in 1987, the D.C. Circuit ruled that they were a representative of the news media because they collected, analyzed, and published information. This ruling has been challenged a couple of times but has never been overturned. The bill that was sponsored in the last Congress by Sen. Cornyn (R-TX) and Leahy (D-VT) includes a provision that would recognize bloggers and internet journalists as representatives of the news media. The bill passed the Senate but only got of committee in the House so it has to be taken up again assuming that happens.

Peter Timmins also offers some interesting and informative comparisons between Australia - if the Peatling decision is allowed to stand - and the US position. See "
Media shouldn't cop this lying down"