Initial Request

• Document Type: FOIA
• Collection: FOIA Collection
• Document Number (FOIA) /ESDN (CREST): 06159008
• Release Decision: RIPPUB
• Original Classification: U
• Document Page Count: 4
• Document Creation Date: July 11, 2023
• Document Release Date: February 17, 2022
• Case Number: F-2014-02028
• Publication Date: February 7, 2014

Approved for Release: 2021/12/06 V6159001 FOO
FOIA Request ID: 2575
FOIA Request submitted by:
Mr. Jason Leopold
Submitted on: February 6, 2014: 17:03 - America/New_York
Investigative Journalist
United States
Request:
This is a request for records under the Freedom of Information Act (FOIA), 5
U.S.C. 552, et seq. I am seeking copies of any and all reports sent to the
Senate Select Committee on Intelligence related to any authorized leaks. A a
provision in the 2012 Intelligence Authorization Bill requires a report to
this Senate Select Committee on Intelligence of any authorized leak.
If you deny all or part of this request, please cite the specific exemptions
you believe justify your refusal to release the information or permit the
review and notify us of your appeal procedures available under the law. In
excising material, please "black out" rather than "white out" or "cut out."
In addition, I draw your attention to President Obama's 21 January 2009
Memorandum for the Heads of Executive Departments and Agencies, directing
federal agencies to adopt a presumption in favor of disclosure and stating
that government information should not be kept confidential "merely because
public officials might be embarrassed by disclosure, because errors and
failures might be revealed, or because of speculative or abstract fears."
I am a widely published independent investigative reporter and a current
contributor to Al Jazeera America
(http://america.aljazeera.com/profiles/l/jason-leopold.html). I have also had
my journalism published in dozens of domestic and international publications.
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According to 5 U.S.C. 552(a)(4)(A)(ii), codifying the ruling of Nat'l
Security Archive v. Dept of Defense, 880 F.2d 1381 (D.C. Cir. 1989), the term
"a representative of the news media" means any 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.
I have a clear intent to "publish[] or otherwise disseminate[ ] information
to the public." Id. at 1386 (quoting the following legislative history: 1) It
is critical that the phrase "representative of the news media" be broadly
interpreted if the act is to work as expected.... In fact, any person or
organization which regularly publishes or disseminates information to the
public ... should qualify for waivers as a "representative of the news
media." 132 Cong. Rec. S14298 (daily ed. Sept. 30, 1986) (emphasis in
original quotation); 2) "A request by a reporter or other person affiliated
with a newspaper, magazine, television or radio station, or other entity that
is in the business of publishing or otherwise disseminating information to
the public qualifies under this provision." 132 Cong. Rec. H9463 (Oct. 8,
1986) (emphasis in original quotation)). Therefore, in accordance with the
Freedom of Information Act and relevant case law, I, Jason Leopold, should be
considered a representative of the news media and as such I am also
requesting a public interest fee waiver.
Please ensure that, in accordance with the DC Circuit's ruling in Chambers v.
Dept of the Interior, 568 F.3d 998 (D.C. Cir. 2009), all records potentially
responsive to this FOIA request are immediately preserved from destruction
until the final resolution of this FOIA action. Destruction of potentially
responsive records after the receipt of a FOIA request is considered
"contumacious conduct" by the DC Circuit. See id. at 1004.
Your agency is required by law to respond to this request within 20 working
days. Failure to timely comply may result in the filing of a civil action
against your agency in a United States District Court.
Please provide any records produced in response to this request in electronic
(soft-copy) form. Your cooperation in this matter would be appreciated. If
you wish to discuss this request, please do not hesitate to contact me.
Fee Waiver:
I am willing to pay any reasonable expenses associated with this request as
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permitted by law or regulation, however, as the purpose of the requested
disclosure is in full conformity with the statutory requirements for a waiver
of fees, I formally request such a waiver. I request a waiver of all costs
pursuant to 5 U.S.C. �552(a)(4)(A)(iii) ("Documents shall be furnished
without any charge ... if disclosure of the information is in the public
interest because it is likely to contribute significantly to public
understanding of the operations or activities of the government and is not
primarily in the commercial interest of the requester."). Disclosure in
this case meets the statutory criteria, and a fee waiver would fulfill
Congress's legislative intent in amending FOIA. See Judicial Watch, Inc. v.
Rossotti, 326 F.3d 1309, 1312 (D.C. Cir. 2003) ("Congress amended FOIA to
ensure that it be 'liberally construed in favor of waivers for
noncommercial requesters."). I incorporate by reference the explanation
and attached materials in the above sections which demonstrate why the
requested information is in the public interest.
As the legislative history of FOIA reveals, "It is critical that the phrase
'representative of the news media' be broadly interpreted if the act is
to work as expected. ... In fact, any person or organization which
regularly publishes or disseminates information to the public ... should
qualify for waivers as a 'representative of the news media." 132
Cong. Rec. 514298 (daily ed. Sept. 30, 1986) (emphasis in original
quotation); and 2) "A request by a reporter or other person affiliated with
a newspaper, magazine, television or radio station, or other entity that is
in the business of publishing or otherwise disseminating information to the
public qualifies under this provision." 132 Cong. Rec. H9463 (Oct. 8,
1986) (emphasis in original quotation)). Therefore, in accordance with the
Freedom of Information Act and relevant case law, I should be considered a
representative of the news media.
The Department of State regulations provide, "Fees otherwise chargeable in
connection with a request for disclosure of a record shall be waived or
reduced where it is determined that disclosure is in the public interest
because it is likely to contribute significantly to public understanding of
the operations or activities of the Government and is not primarily in the
commercial interest of the requester." 22 C.F.R. 171.17. In determining
whether the disclosure of information is likely to contribute significantly
to public understanding of the operations or activities of government,
Department of State regulations require consideration of the following
factors: the subject of the request; the informative value of the information
to be disclosed; the contribution to an understanding of the subject by the
public likely to result from disclosure; and the significance of the
contribution to public understanding. 22 CFR 171.17(a)(1)(i)-(iv). To
determine whether disclosure is not primarily in the commercial interest of
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the requester, the Department of State regulations require consideration of
the following factors: the existence and magnitude of a commercial interest;
and the primary interest in disclosure. 22 CFR 171.17(a)(2)(i)-(ii). As
explained below these factors weigh in support of a finding that this is the
type of request, and I am the type of requestor, for which courts have held
that waiver of fees is required under FOIA.
Additionally, please not that no fee may be charged relating to the cost of
the search and review of any record which must be disclosed under the Privacy
Act even if such record is also covered another provision of law such as
FOIA, pursuant to 5 U.S.C. � 552a(f)(5) and 22 CFR 171.30.
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