UNITED STATES DEPARTMENT OF DEFENSE, PETITIONER V. NATIONAL
SECURITY ARCHIVE

   No. 89-1204

   In The Supreme Court Of The United States

   October Term, 1989

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The District Of Columbia Circuit

   Reply Brief For The Petitioner

   This case involves the scope of the exemption from search fees
under the Freedom of Information Act (FOIA) for "representative(s) of
the news media." 5 U.S.C. 552(a)(4)(A)(ii).  We have explained in the
certiorari petition that the court of appeals seriously erred in
expanding that exemption to cover respondent and other organizations
similarly situated, which bear no resemblance to members of the "news
media" as commonly understood and as defined in Defense Department
regulations and Office of Management and Budge guidelines.
Respondent's defense of the decision below ignores the ordinary
meaning of the statutory text;  fails to give the deference due the
administrative interpretation under Chevron U.S.A. Inc. v. NRDC, Inc.
467 U.S. 837 (1984);  and improperly relies on a few floor statements
by individual Members of Congress that conflict with other floor
statements and with Congress's deletion of statutory language that
would have specifically applied to respondent's activities.  But most
fundamentally, respondent's submission ignores the central statutory
requirement that a qualifying requester be in the business of
disseminating news.

   Respondent's attempt to portray the decision below as narrow and
fact-bound is unavailing.  Respondent alone has already filed several
thousand FOIA requests, often wide-ranging in nature, for the records
of various agencies responsible for the national security, foreign
relations, and intelligence functions of the United States.  In
addition, the court of appeals' broad construction of the term
"representative of the news media" opens a sizeable loophole in the
FOIA fee structure by exempting any organization that seeks to amass
government records at government expense and then broker them to third
parties.  Congress carved out the special exemption from search fees
for newspapers, radio stations, news magazines, and other members of
the "news media" because they have a special role in informing the
public about current affairs and because the information they request
under the FOIA therefore could be expected to lead to a direct and
immediate benefit for the public at large in its receipt and
understanding of genuine news.  Respondent would set the exemption
loose from this basic purpose.

   1. In defending the court of appeals' construction of the term
"representative of the news media," respondent first makes the
remarkable assertion that DoD "has not even been able to formulate an
alternative definition of the statutory term" (Br. in Opp. 5;  see
also id. at 8, 10).  In fact, DoD has furnished an explicit definition
of that term in its FOIA fee regulations, based on the identical
provision in the OMB guidelines.  The regulations and guidelines,
which were issued pursuant to specific statutory directive (5 U.S.C.
552(a)(4)(i)), define the statutory term to mean "any person actively
gathering news for an entity that is organized and operated to publish
or broadcast news to the public." 32 C.F.R. 286.33(e)(7)(i);  5 C.F.R.
1303.30(j).  In addition, they define "news" to mean "information that
is about current events or that would be of current interest to the
public," and delimit the scope of the term "news media" by identifying
familiar examples of entities that are part of the media --
"television or radio stations broadcasting to the public at large, and
publishers of periodicals (but only in those instances when they can
qualify as disseminators of 'news') who make their products available
for purchase or subscription by the general public." Ibid.  /1/ This
detailed administrative definition of the operative statutory term
should have been sustained by the court below under Chevron.  /2/

   Respondent's related assertion that the Defense Department "never
once states what it believes (the) plain meaning (of the statutory
term) to be" (Br. in Opp. 6 n.5) is refuted by our quotation (Pet. 16)
of the accepted definition of the words "media" ("the means of
communication, such as radio and television, newspapers, and
magazines, that reach or influence people widely") and "news" ("a
report of a recent event").  We also explain (Pet. 18) that "the
meaning given the statutory term 'representative of the news media' by
the OMB guidelines and DoD regulations is essentially identical to the
plain meaning of that term." In fact, it is precisely because the DoD
regulations and OMB guidelines define the statutory term in accordance
with its ordinary meaning that the court below was especially
unjustified in disregarding the administrative construction.

   2. Respondent endorses (Br. in Opp. 5-6) the definition of the term
"representative of the news media" fashioned by the court of appeals:
a "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." See Pet. App. 13a.  This formulation, however, omits the
critical limiting principle in the Act, guidelines, and regulations
that qualifying requests must be made on behalf of persons who are
engaged in the dissemination of news, not persons who may disseminate
some sort of information, broadly defined, that is of potential
interest to a segment of the public.  Purely historical facts or
technical or other data constitute "information," and almost any such
facts or data in government files would be of at least "potential"
interest to some members of the public.  Thus, under respondent's
view, any requester who represents that he intends to publish
information in some form would be a "representative of the news
media." The result would be an open-ended and wholly unwarranted
expansion of Congress's carefully circumscribed exemption.

   For example, although the information contained in the Encyclopedia
Britannica is surely of "potential interest" to some members of the
public, its publisher is just as surely not a member of the "news
media." Neither is respondent:  the sale of microfiche copies of of
thousands of pages of government documents, accompanied by indices
that merely facilitate access to the documents themselves for research
purposes, is far removed from the publishing of a newspaper or the
broadcasting of news over the radio or television -- the standard
means for disseminating "news" that are cited in the legislative
history (see Pet. 21-22), including that quoted by respondent (Br. in
Opp. 8), and in the DoD regulations and OMB guidelines.  /3/

   3. Respondent erroneously relies (Br. in Opp. 8-11) on excerpts
from a document inserted in the Congressional Record by
Representatives English and Kindness stating that "book authors who
can demonstrate that their work is likely to be published also
qualify" and that "magazines (and) newsletters;  television, radio,
and other broadcasters;  and book publishers also automatically
qualify as traditional news media." 132 Cong. Rec. H9464 (daily ed.
Oct. 8, 1986).  Such bare assertions in the legislative history cannot
overcome the plain meaning of the statutory language.  In any event, a
publisher could qualify for preferred fee status only if the
information in the particular book it proposed to publish (like
information in a newspaper or radio or television broadcast) would
consist of "news" -- i.e., only if the book would contain a discussion
of current events or if the book's disclosure of past events would be
"news" because of its immediate interest to the public.  This possible
rationale for permitting a book publisher to benefit from the fee
exemption in narrow circumstances does not extend to the publication
of books about historical events;  yet it is historical events that
are the focus of respondent's planned document sets, and therefore of
its FOIA requests.  See Pet. 25 & n.9.  For this reason, the New York
Times' publication of the Pentagon Papers, cited by respondent (Br. in
Opp. 13), does not suggest that all book publishers are automatically
encompassed by the statutory term "representative of the news media,"
without regard to the newsworthiness of the proposed book.

   Respondent's activities are, of course, even further removed from
those of the "news media" than are the activities of an ordinary book
publisher.  Respondent proposes to do nothing more than sell sets of
microfiched copies of the documents it obtains from the government
under the FOIA.  Such limited sales to a relative handful of
university libraries, research institutions, and others that can
afford to purchase document sets and have access to them on their own
premises are essentially an extension of respondent's library
activities.

   Respondent attempts to avoid this conclusion by relying (Br. in
Opp. 13) on its supposed "editorial judgment" in selecting documents
to be included in a set and its preparation of indices to facilitate
access to the documents.  Respondent would have the tail wag the dog.
Just as a university library's publication of its card catalog or book
list would not transform it into something other than a library or
render it a member of the "news media," respondent's ancillary
preparation and sale of finding aids to facilitate the use of the
documents it obtains from the government does not transform respondent
from an "Archive" into a member of the "news media." /4/ And although
the organization of a large mass of government documents and the
preparation of finding aids to facilitate access to them presumably
requires some judgment, it is that of an archivist or librarian, not
the editorial judgment exercised by a newspaper or television station
in digesting raw information and explaining it to the public.  /5/

   4. Respondent's reliance on the statements about book publishers in
the document inserted in the Congressional Record by Representatives
English and Kindness illustrates the deeper flaw in respondent's
submission.  Like the court of appeals, respondent advances a
definition of the term "representative of the news media" that is
grounded on these and a few other snippets of legislative history,
rather than the ordinary meaning of the statutory term.  As a result,
respondent, like the court of appeals, stands the task of statutory
construction on its head:  it is the statutory language that must
control, at least in the absence of a clearly expressed intention to
the contrary in the legislative history.  There is no such clearly
expressed intention here.

   Even the floor statements respondent cites do not necessarily
support its view of the exemption.  For example, although respondent
relies (Br. in Opp. 9) on Senator Leahy's reference to an organization
that "regularly publishes or disseminates information to the public"
(132 Cong. Rec. 27,190 (1986)), he also identified a "newspaper,
magazine, (or) television or radio station" as the sort of entity for
which the exemption was designed.  Ibid.  Similarly, the statement of
Representatives English and Kindess quoted by respondent (Br. in Opp.
10) identifies those accepted members of the news media in the very
sentence that mentions other entities "in the business of * * *
disseminating information." 132 Cong. Rec. H9463 (daily ed. Oct. 8,
1986).  As a result, neither statement necessarily means that an
entity that is not part of the media as commonly understood, and that
does not disseminate genuine "news," would qualify.  But if the floor
statements respondent quotes are read more broadly to encompass
entities that disseminate any sort of information, even if not "news,"
they conflict with the statement of Senator Hatch, another sponsor of
the bill, who stated that the term "media" should be interpreted "in
the traditional and common sense meaning of that term" (132 Cong. Rec.
S16,505 (daily ed. Oct. 15, 1986)).  According to Senator Hatch, "the
fee and fee waiver language * * * is phrased in very clear and plain
terms, which should be construed and applied according to their
ordinary and common meanings.  Certainly no extraordinary meaning is
intended to be conveyed by use of terms such as * * * 'media'"
(ibid.).

   Furthermore, if read in the expansive manner respondent proposes,
the floor statements respondent quotes cannot be reconciled with
Congress's deletion of a proposed statutory fee preference for "a
nonprofit group that makes information available" to the public -- a
provision that would have specifically covered respondent's
activities.  See Pet. 20-21.  Respondent attempts to avoid the obvious
import of this deletion by asserting (Br. in Opp. 8) that the
provision was confined to entities that passively open their files to
readers or act as "intermediaries" in securing government information.
 However, Senator Hatch clearly explained that in light of the
deletion, the statute would not grant a preference to a requester
"simply on the basis of his status as a disseminator of public
information" (132 Cong. Rec. S16,505 (daily ed. Oct. 15, 1986)).

   5. Respondent argues (Br. in Opp. 9-10) that the decision below
furthers what it believes to have been the "general aim" of the 1986
amendments of the FOIA fee provisions of increasing the availability
of government records.  This argument begs the question.  Congress
intended to broaden access only for requesters who fall within a
preferred category.  For others, the fee provisions were drafted "so
that more of the costs of FOIA will be recouped" (132 Cong. Rec.
26,764 (1986) (remarks of Sen. Leahy)).

   6. Respondent modestly contends that this case is of no "great
practical importance" (Br. in Opp. 5, 16-18).  But it does not dispute
our submission (Pet. 24-26) that the unwarranted expansion of the fee
exemption fashioned by the court of appeals removes a meaningful and
reasonable financial incentive for requesters to tailor their FOIA
requests, and that entities such as respondent -- any of which can sue
in the District of Columbia -- will have carte blanche to deluge
agency FOIA offices with wide-ranging requests.  Nor does respondent
deny that this potential is borne out by the experience with the
enormous number of requests, many wide-ranging, submitted by
respondent alone.  Respondent's only answer is the bald and erroneous
assertion that this "is just what Congress envisioned" (Br. in Opp.
17).

   Respondent also speculates (Br. in Opp. 17) that legitimate
representatives of the news media will seek a fee preference and
request documents even if the judgment below is reversed.  But
presumably because they are in the business of disseminating genuine
news, rather than amassing government documents in a private archive,
experience has demonstrated that these intended beneficiaries of the
fee exemption have in fact tailored their FOIA requests and operated
in the responsible manner Congress envisioned.  Contrary to
respondent's contention (ibid.), there is no reason to believe that
true representatives of the news media or educational institutions
will request documents on anything approaching the potentially
limitless scale of the requests that respondent has already submitted.

   Respondent admits (Br. in Opp. 17) that it permits "hundreds" of
readers to gain access to the government records it has collected in
its archive without the necessity of their making, and paying for,
FOIA requests to the agency concerned.  If respondent is correct that
the term "representative of the news media" means anyone who publishes
some sort of information, other groups interested in any other area of
governmental activity would be free to establish their own archives of
government records at government expense simply by the expedient of
occasionally publishing sets or indices of those records.  Congress
did not intend the carefully circumscribed exemption in 5 U.S.C.
552(a)(4)(A)(ii) to have that extraordinary effect.

   For the foregoing reasons and those in the petition, it is
respectfully submitted that the petition for a writ of certiorari
should be granted.

   JOHN G. ROBERTS, JR.

      Acting Solicitor General

   MARCH 1990

   /1/ OMB explained in issuing its guidelines that "(w)hile these
examples are not meant to be all-inclusive, they are meant to be
limiting, and to give meaning to the phrase 'publish or broadcast
news' so that it implies something more than merely 'make information
available.'" 52 Fed. Reg. 10,015 (1987).

   /2/ Respondent does not dispute that the DoD regulations and OMB
guidelines are the sort of administrative measures to which the
analytical framework of Chevron applies.  Respondent argues only that
the Chevron "crutch" is unavailable here because, in its view, the
meaning of the statutory exemption is "clear" from the legislative
history.  Br. in Opp. 6 n.5, 14-15.  As we explain in the text, this
argument is without merit.

   /3/ Respondent's contention (Br. in Opp. 14-16) that it qualifies
as a "representative of the news media" under the DoD regulations and
OMB guidelines is contrary to the interpretation of those provisions
by the agencies themselves and by the courts below.  See Pet. App.
3a-4a, 11a-13a, 20a.

   /4/ Respondent relies (Br. in Opp. 12 & n.12) on the potential
eligibility of free-lance journalists for preferred fee status.
However, the OMB guidelines and DoD regulations state that journalists
are eligible only if they are "working for a news organization." 5
C.F.R. 1303.30(j);  32 C.F.R. 286.33(e)(7)(i).  Respondent is not a
"news organization."

   /5/ Citing Arkansas Writers' Project, Inc. v. Ragland, 481 U.S.
221, 229-230 (1987), respondent suggests (Br. in Opp. 11 n.11, 12 &
n.13) that a distinction for FOIA fee purposes between books on the
one hand and newspapers and magazines on the other would raise serious
First Amendment issues.  Arkansas Writers' Project, however, involved
a tax imposed on publishers, not access to information belonging to
the government itself.  Compare Houchins v. KQED, Inc., 438 U.S. 1,
10-11 (1978) (no First Amendment right of access to government
information).  Moreover, in invalidating the tax in Arkansas Writers'
Project, the Court relied on the fact that it discriminated on the
basis of content.  481 U.S. at 229-230.  The DoD regulations do not
draw distinctions based on content.  The First Amendment does not
prohibit Congress from setting different mailing rates for newspapers
and periodicals than it does for other material.  See Lewis Publishing
Co. v. Morgan, 229 U.S. 288, 301, 303-304 (1913);  Hannegan v.
Esquire, Inc., 327 U.S. 146, 155, 158 (1946);  The Enterprise, Inc. v.
United States, 833 F.2d 1216, 1223-1226 (6th Cir. 1987).  A fortiori,
Congress may constitutionally limit a statutory fee preference for
those persons seeking government records to persons who are in the
business of disseminating genuine "news" directly to the public.