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The Expanding Definition of “News Media” Under FOIA

K-12 Education Publications

In the age of Twitter and blogging, it is not always easy to tell who qualifies as a journalist or member of the media. But according to a recent advisory opinion from the Public Access Counselor of the Illinois Attorney General’s office (PAC), public bodies may need to consider bloggers as a members of the media – at least when analyzing their requests under the Freedom of Information Act (FOIA).

Cal Skinner is a McHenry County resident who runs a website – the McHenry County Blog. Skinner submitted a series of FOIA requests to the County asking for certain electronic communications between two McHenry County Commissioners. The County denied his request, and labeled him a “recurrent requester.” That label gives the County extra time to respond to his FOIA requests.

Section 2(g) of FOIA defines a “recurrent requester” as a person that, in the 12 months immediately preceding the request in question, has submitted to the same public body: (i) a minimum of 50 requests for records; (ii) a minimum of 15 requests for records within a 30-day period; or (iii) a minimum of 7 requests for records within a 7-day period. However, this provision specifically excludes requests from members of the “news media.”

While Skinner admitted to a high volume of requests, he argued that publication of his blog made him a member of the news media and exempt from the “recurrent requester” designation. Skinner also noted the in-depth reporting and investigations he had conducted, as well as his prior journalistic experience, to argue he was a member of the media for FOIA purposes. The County argued that because Skinner did not adhere to traditional journalistic standards, including editorial oversight and fact-checking, he is not a “news service” under FOIA.

The PAC agreed with Skinner. FOIA defines the “news media” as a “newspaper or other periodical issued at regular intervals whether in print or electronic form” or “a news service whether in print or electronic form.” The PAC found that “the McHenry County Blog functions much like a member of the traditional news media in terms of its production of original content, its range of reporting on issues of public interest, its established presence on its own and in the traditional media, and the size and diversity of its readership.” Therefore, based on the totality of circumstances, McHenry County had improperly designated Skinner as a recurrent requester.

While only an advisory opinion, the PAC’s reasoning should give public bodies pause when evaluating requests. While anyone with a computer can technically establish a blog, public bodies should no longer be dismissive of claims that a blogger is a member of the media. The PAC analyzed this case carefully and examined the relevant facts surrounding the blog itself. Public bodies should do likewise and should review all claimed media protections on a case-by-case basis.