materials that the agency did not search for bloggers in particular it was part of the search term which was not included in item three a for quest one which specifically just stated on  one hundred pages at least that were produced based on for a request one item three and if that amount was also considered it's not much larger because the inclusion of  in particular it's not redundant with request one item three because the inclusion of the word bloggers in the search term would be to a different and larger visit and secondarily if you take a look at the first request  requests to be in the affidavit provided by the federal trade commission the f t c specifically states that reviewed in selected one hundred eight hundred pages which implies and we can infer reasonably that there were larger than one hundred pages in the don't officially know how many pages that search for i don't want item three of request one actually created and that's part of the issue here and that is just fishable and that is appropriate for e mail but secondarily the for requests you print did you in the third request may provide more information about your status under either the news meter the public interest absolutely there was there was a larger track record that  song if that if that's the case i was wondering whether you might rephrase what you're really asking for here is regardless of weather request one of requests three is new or not that is regardless of whether it's even if it makes no overall difference it may make a difference in terms of where you get the waiver for basically the same materials yes your honor and particularly with regard to the waiver news media requests for five  persuaded us at least me that the rule is didn't know that we reviewed a novel or not very hard to persuade me because the statute says so the really makes no difference whether the district court made a mistake or different or whether it didn't or whether the agency regulation is good or bad doesn't since we have to review didn't know both the meaning of the statute why does it make any difference whether the agency was has a regulation that fits the statute or not or whether the district court then right so if you could make your argument something nothing you know assume two things both required by the stache one is that we have to decide just a no vote and two that your record is limited to what you filed and i'm going to give you all three whenever you file the spec the first second and third requests but none of the additional material that you provided in court because that's outside the record your honor the open government act this seven and website that has memoranda reports press releases to active newsletters twitter facebook and the inclusion of the alternative media definition that is now part of the news media requester status all three of the elements first which this record agreed with in this quarter as well and any that yeah there's information of potential interest to a segment of the public second to use it of the action i'm i'm with you that there is a lot of extra words and a lot of the case law that doesn't appear in the sat in the statute so you can just follow the statute itself so the editorial skills to turn the wrong materials into a distinct work i take it you agree that if all you did was put on your website what you got from for iowa and you didn't do anything with it that would not be sufficient right correct for that to be a repository all right and so what did you do to the material that you would or what what have you in the past done more are you planning to do with the material that you got from for the for your quest pacifically states that wasn't there she was going to write t a story involving this exact type of work because of action that this is separate from dissemination itself but it is and it is further evidence that's on the record a cause of action taking raw material editorializing cause of action applying its editorial skills and then give it to washington times press release or a report or what i believe it was a press release and a minimal getting to the provided us with this memorandum of its opinion about this or does it quote somebody from cause of action the saying the f t c is bad or anything that would suggest some statement by cause of action other than here's what we got from like drawing quantitative limitations particular dover's i think is very dangerous because what we do instead what we do instead is we can take a look at this record because of action make statements that are are not refuted any good faith in the we obviously don't have the articles that doesn't mean they're not in the record that is in the sense of once you have provided the agency with a list of the articles should be sufficient that should be sufficient if they say what you say they say so i'm just wondering whether it was audience we need to know whether they publish it into the air or whether anybody is there on the other end but i think common sense can dictate you know that if these newsletters are being published it's not some sort of subterfuge to defeat you know  like what's the verbal formulation for a district court that's trying to figure out whether this fee waiver was properly and i think the proper standard obviously is drawn from the statute relies on national security archive as well as the inclusion of alternative news media as far as members of the senate ation yeah i'm sorry to interrupt you but the problem with the statute is that it seems to be doing seven guidelines that incorporates and creates for the first time this organize and operated standard it should be unburdened specifically because congress had an opportunity to choose it and it decided to go to national security archive and join difference from the department  defense standard for alternative news media so taking into context that there is ample legislative history and even in the open government act two thousand and seven the pracon tory language itself to that statute  you emphasize the late language don't you get right back to the problem of audience that whine you know everybody who thinks there's a block or now think they also should qualify so the all i'm trying to figure out organization makes for your requests indicating that has not just twitter or facebook but that it has newsletters memoranda reports news releases and that has its work is being word significantly contributes significantly do you think that's essential in the same meaning as in the news media as in the news media element significantly and it must mean that at least more than one person that they're distributing to more than one person or what you think the word significantly means i think significantly likely means more than one person but you know there are question information you know it's not so you know there's a threshold level for public availability and it's about the public understanding and i've got the public i'm i'm only focusing on the word significantly i understand your argument about public understanding of the operations i understand actually asked in all your other arguments is just what does the word significantly mean do you think it's basically the same thing as what was wrong with with respect to news that there be some want to insert you can't contribute significantly to public if you're not distributing to some significant amount of the public i think there needs to be the bill ability or the ability for the for the audience access the information and the word significantly likely means more than one but again staying away from the with respect to your interest about other people's waivers i take the government's argument to be that what you're not you're what you're trying to do that the and in the interest of the requester is to help continues to intend to inform and educate the public on the discrepancies of federal trade commission's practice of potential so like this you waiver provision clear from thing not that just intending to write an article isn't enough right because this is a freelance journalist shall be regarded as working for a news media entity if the journalist can demonstrate a solid basis for expecting publication prove that entity so a freelance journalist what we do with the freelance journalist section doesn't tell us something about something more than it doesn't tell us something publication pop as publication record would would provide a basis but that suggests that merely saying i'm a freelance journalist i want to do an article about x i'm going to send it around to a lot of magazines and i hope one of them publishes it would not be enough we agree that would not be enough or feel less trollish i think your interpretation is not an unreasonable one however dead example is not is not  a freelance journalist cause of action isn't alleging arguing that it's a freelance journalist i don't know whether you're right about i think your argument would be stronger if you said a freelance journalist is not an example of alternative media and it's just a separate thing and we're not in to that that would occur and specifically it's sort of ties in somewhat with with part one of the public interest test which says the subject matter of the requested information concerns the operations activities of the federal government here is likely to contribute to an understanding so the contribution to the understanding is really part two which the district court probably viewed in this question as well as satisfied at least with requests  to the public understanding itself the nature of the understanding that would be conveyed with the material that is that made public so if you have a but not helping the audience's so  create and even the titles themselves and the language preceding that those titles and why this is important why because objections concert on the half of the public as a public interest entity certainly satisfies part representative of the news media the reduction category be interpreted consistently broadly in a form to be with congressional intent to judge garland is absolutely correct to say that standard overview is noble and so in some sense all that matters is what this court terminates today on review however as as we detail in the brief we submitted alongside and along with the washington post and p r and six other media organizations i focus somewhat on what the district court determined by i think it's a good example of the district court for example pointed to a pulled out language from national security archive where it indicated that in order to demonstrate that you've  skills you need to be pulling information from a range of so when we have this our discussion with other cultures we know what's wrong with what the district court is we're trying to figure out what's the right way to describe the test use and going at the end of the other counsel's argument  and in national security archive that the editorial skills conclude analyzing and synthesizing information from one source can you know i'd point this court to its statement albeit in dicta and national security archive that surely when a newspaper publisher such as the new york times brings out the pentagon papers in the form of the paperback book adding perhaps an introduction and an index to interacting with just ruined it or just doing it alone i mean the new york times  are case because we're not only dealing with one item there you know they may have some editorial contact and some other editorial content and monitoring content and the issue isn't what you're going to do with a particular for your request but whether you are a news media over all so we have to look at what this particular entity has done or plans to do i think he would agree if all they plan to do is put before the fruits of for a request on the web with no comment that would be good right and the records i think the record indicates that that cause of action certainly a publication plan of the type that national security archive anticipated and would utilize the editorial skills in utilizing the editorial skills in selecting documents that are provided in response to selecting documents from that raw material i see you receive in response highlighting what might be important might be newsworthy out of those dots putting those documents in contacts for an audience tying them to a larger ok you know what is that what is the audience i mean this is the word we're having a lot of trouble with this you can see it it's difficult frankly it is a difficult question and i think part of the reason it might be a difficult question is because today in the sort of new media environment that we're all living in the sort of active passive distinction that we've been able to focus on in the past just sort of this affirmative intent to publish this and for the purpose of actions to publish it becomes frankly does become more m because you can have a website you can disseminate and publish things on a website and that may you might be able to characterize that potentially as sort of passive in the sense that the audience from steve you  people call you would agree that a website that has one hit and nothing else wouldn't be streaming to an audience right at the one point of caution i will say with respect to numerosity requirement i understand she of i agree that anyone with a facebook page that's not enough to be a member of the news i agree that's not enough i would also say how if i have a lot of friends and really about i mean what let's say i don't know just library and the sort of public dissemination the public availability i mean i think if you are taking an tiriel that comes from point requests and you're exercising editorial skills and perhaps all you doing is blogging about it posting it on your website that is a growing source of news for a large number of americans and i think that if you're doing that you should even if three people or a number of people whom you can't you can't prove what number of people are reading your blogs you should be entitled because you have a publication that plain enough publication play and that intent and ability to disseminate your work she entitled to news media requests for status and i would say that the one caution i will say about the numerosity requirement is that it's important and i think congress recognized this when in active the amendments in the open government act of two thousand and seven it's important to make sure about if that's the case with respect to freelance journalists wider than a wider congress seem to be somewhat restrictive pro freelance journalist shall be regarded as working from news media and a deep enough journalist journalist only qualifies for news media requests or status if they're affiliated with an entity in fact the legislative history indicates it was representative clay in the first  amendment in the house indicated that the agency should not deny request for status solely on the basis of the absence of institutional associations of the requester so if a freelance journalist states i'm going to attempt to have my work published by another entity perhaps if i can't i will self publish this piece of work on my own blog on the internet that should qualify and to be clear it is a little to low bar and it should be a low bar because congress is the f t c only rejected because of actions application or that represented to be just as waiver with respect to requests number one and request number two that they meet the agency the material that counsel for a cause of action however cited in his presentation that he believed demonstrated why his client was entirely up to the fee waiver was only submitted by a cause of action opinion that is to determine whether or not because of the action was entitled to status as representative of the media would not make any practical difference because they were not being billed any  they didn't get all those documents with a few waiver in the past right if they didn't let me explain why what happened with respect to the first request was the f t c provided one hundred pages to cause of group there were more than one hundred papers response right so now they're applying for again and now they provide more information than they provided the first time why isn't that in the record in the administrative itself the only it wasn't erroneous the first time maybe the us assume for the moment and maybe not the second time but the third time when they provided more information so being it was more information than why one hundred not that there i'm not i'm not on the issue of whether we're talking about blogs and not just forget about that mention i'm a question of whether there might be two hundred more documents for which they have not yet gotten because they weren't willing to pay the fees and that they wan made a mistake in determining that they didn't have to process additional documents which would have put them over the one hundred number yes and that in and therefore the district court may have made a mistake in not asking whether the fee waiver issue with respect to that first category is still alive or number one the previous requests so i'm on the question of whether they're in news media or not or whether they have public interest waiver or not and i'm asking you to consider all of their submissions  at by that date on that question now if if what you're going to tell me is that maybe if that's true within the district or should think about this again then this will be a very short rod but if you're going to tell me that even is there is a different in some other way i think the two significant reforms met the two reports that they plan to editorialize may change the ball game and i think that's what your knowledge and but leaving that aside it isn't much a lot of this stuff already other than that say in footnote seven at a one fifty four for sale there's a lot to consider there let me first break down what i see is the difference between the proof with respect to and they're they're talking about when those things are going to be published and that identified the idols of those who are i think that's a far more substantive showing than you have with respect you know so i learned some hypothetical so on  the question of what they pass on to say the washington times for example if they meet either by an interview with the washington times after reading some document or in a press release to the washington times pointed what these articles are all about because i think all they really all are our news articles that somehow mention cause of action somewhere in between the article did the district court look at those articles there's no indication that th see read those articles thoroughly well that may be even worse well look i took notes on who the burden is i think if people if you produce if you produce a list of articles which you say reflects why doesn't that meet your burden if the government doesn't look at those articles so for example i just we just looked up the washington times article that they're referring to and it includes quotations from dan that made a mistake in favoring a dictionary definition over our neighbor works a copy i don't know what any of that means but the point is they are criticizing because of documents somehow some by fiat they are criticizing it and their criticism i picked up by washington times which i think everyone will agree has an audience our that word is defined so isn't it the obligation of the agency to looks and see whether use articles actually do they've got the obligation to provide some meat on the bones in terms of what that editorial content you're providing to his third party is and i don't believe simply a listing of articles without any indication of what those articles say in terms of whether they're actually providing editorial content i think that's a burden the applicant should should be there and not be a party fair enough but you you're not disputing that if what they do with a for your material is to package it up in a press release that criticizes the government for what they've done and then distribute it through the national media you would agree that that satisfies the audience just getting our work to an audience i would i think of it more in terms of the second component church growing up that has whether the right and i mean our internal skill well what about good and distributes that worked in the audience can you distribute the work to an audience by sending your press releases to  order to qualify as a median representative of the news media you would do all three of these things result that you would be the distributor now in your hypothetical you're not doing the distribution yourself you were giving it to a i'm not saying that ok so that's the way they get it to me so i'm for the moment that i'm a light and don't don't look around on the web but in the good old days before there was a web they certainly would have been considered a media outlet even the news media even though they a contacts who get your process information to in on you i agree so that really depends in part on looking at these various articles right and seeing whether they do what what we've been talking about correct that's right only difference i see is this with respect the news media in the audience analysis it seems to me has to do with what this organization does systematically with respect to the interest exception as i read it that exception is based on the dissemination of a particular for your requests and so an organisation could meet the public interest significant requirement i the improvement of understanding is this that in terms of the representative the media they have to make sure that they do this on some sort of regular basis it's not a one shot deal but with respect to the public interest be well i was going to focus on another aspect of that and that is the first aspect of the public exception i thought made some her presentation well it's also under the enough the representative of the media is i think the for the first aspect of the of the test for either one which isn't in controversy here suggest that this information has some sort of potential newsnight you look at i think that carries with  a certain inference oh a likelihood but there's going to be a group either creates an audience or a group that satisfies the increased public understands he will then a definition of news is in a separate section so we have to rely only on part three but it has the word likely in it so i don't see why this is an issue really that the expressly includes the question word because it is likely to contribute significantly so you're right it has to be likely and you're wrong it's enough it's likely either ok so let me just ask on the point that you made i have two questions about it one is when you say the news has to be regular  requirement of regular is not in the statute but there is a requirement that it uses and distributes to suggest this maybe isn't a one shot deal i'm saying i'm with you on that but that also suggests that this one for the news media purpose doesn't have to of great public interest and as the requests that they're making now doesn't have to be as long as they generally do that or they've done that in other circumstances is that right you were arguing that under par three  particular west has to be of significant public interest and that's different from the news media and i'm going to turn it around on you doesn't it also mean that the particular request doesn't have to be a significant interest as long as i say it's a new york times for exemption or a mediator exemption is a dynamic process and that you have to reevaluate it each time they can refile the same request now there's no question that there be no this issue because it's happened so much later we have to  government agrees with you or not i don't think panel really cares about that question the question is whether we think that it's significant either in the sense that judge intel was talking about significantly on the second matter significant in the sense of significant public understanding or significant a sense of quantum but i wouldn't worry about this are this this question about depends on what a particular agency thinks of you so i really only have one question for you which one about this burden of proof issue why is it enough assuming that these articles are for example as good as the washington times article which i've found because i'm not a complete didn't you have to tell the agency specifically look this is what these articles actually do they actually take into consideration our editorialized content your honor the burden of proof is just what's with the minister of record this that's cause an action that says it's straightforward and well found her truth commission has enough effort in time to check cause of actions website it doesn't follow simple links simple links in the foreigner request to confirm or deny the