Free Press

DHS Denies FOIA Fee Waiver Request to Muckraker, Web Traffic "Commercial Interest" Outweighs "Public Interest" of Access to Documents



Government's irrational fear of the "commercial" can lead to strange policies. The political establishment's obsession, for example, with regulating commercial speech as if it were different from any other kind of free speech, or of resisting the decriminalization of marijuana if it means someone might make a profit off the work, betrays that fear. Lefties wish to amend the Constitution to strip corporations—in essence groups of people—of the rights the individuals comprising it enjoy, specifically the right to free speech in the political process. Advocates of such a restriction naively believe that press organizations, many of which operate as or under corporations, would be exempt.

But as it is government bureaucrats can't seem to wrap their heads around the idea that an organization exercising its First Amendment rights can also be a commercial enterprise. The latest example comes from the Department of Homeland Security (DHS), which denied the news website MuckRock's request for a Freedom of Information Act (FOIA) fee waiver because of MuckRock's "commercial interests." MuckRock reported the DHS's statement to it:

Regarding the "commercial requester" classification, the Agency has also properly determined that the requested records would be used for commercial purposes. Although you assert that any responsive documents would be made available to the public for free on MuckRock's website, the Agency must balance the commercial interest against the public interest. Making documents available on MuckRock's website, even at no charge, drives traffic to the website and furthers its commercial purposes. Your request does not provide any information that would allow the Agency to determine that the public interest outweighs this commercial interest.

Emphasis in original. Transparency in government ought to be a means to its own end. Access to government documents and to the workings of government bureaucracy may not ensure a clean government but a clean government is impossible without some measure of transparency. Government employees paid to honor FOIA requests shouldn't need requesters explaining the public interest in releasing any government document.