Books Critters

Sharing photos

Ringling Brothers: The Greatest Show in Court book coverThe photo for my newest book comes from Shutterstock. It’s not a perfect photo. It’s a little dark, a little blurry and out of focus. But no other image worked for the book. When I saw it, I knew this was the image I wanted for my cover. Authors get funny that way, which is why publishers rarely let us anywhere near the cover.

Thankfully, O’Reilly’s Director of Brand Management and expert on all things book covers, Edie Freedman, kindly volunteered to help me pummel the photo into shape. She also helped educate me on what makes a good book cover. For instance, I didn’t know about needing to leave space on all sides of the cover page. I also wasn’t aware that when you’re a relatively unknown author, as I am, you want to put your name at the top of the page; get a little name recognition going. She helped polish away many of the photo’s distractions, and find a font that, I think, really makes the cover snap—especially in smaller sizes, which is what shows up on Amazon pages.

The cover image is probably the only photo I’ll be using from Shutterstock in my book. Most of the images will come from the court case and investigations the book covers. The others are coming from photos at Flickr made freely available for use with a Creative Commons license. You can use a photo in a book, as illustration, if the CC license permits noncommercial use.

Some of the photos are from folks who have attended the Ringling Brothers circus or the associated animal walks. Others, though, come from the Circus collection of the Boston Public Library. This wonderful institution has not only uploaded extraordinary graphics and photos to its Flickr account, it kindly allows people like me to use the photos in a non-commercial setting (such as within a book for editorial or illustrative purposes). My favorite set of theirs is, of course, the one related to the circus.

I’ve always been reluctant about the Creative Commons license, not the least of which, the licenses are a bit confusing. For instance, it took me the longest time to figure out that using a photo as illustration within a book that isn’t focused on selling said photo is not a commercial use of the photo. Or at least, that’s the interpretation I’ve seen most frequently given, and the one I’m sticking with.

I can now see, though, why having a licensing scheme such as the Creative Commons is so helpful. It wasn’t necessary to have older photos and circus posters in the book…but the added color and history makes it more lively.

Old circus poster

I was so grateful to the Boston Public Library that I decided to upload all of my photos to my new Flickr account and offer them for use. The CC license I picked is very open, other than I restrict commercial use because I don’t have model releases for people and buildings and don’t want to hassle with the potential content copyright issues.

I’ve already had one of my photos used in a Missouri Department of Tourism pamphlet, for illustrative purposes. I don’t claim to be the best photographer in the world, and most of my photos are ordinary. But you never know when one of your photos might help someone, so I just uploaded them all, let folks use them or not.

Documents Legal, Laws, and Regs

No Appeal on PACER Fee Exemption Decision

Courthouse News Service posted a story about journalists losing a court case on PACER fees. The journalists were from a non-profit organization, which can usually apply for a PACER fee exemption. However, they’re also journalists, and a new policy note attached to the 2013 fee schedule change warned against fee exemptions for journalists.

The note states:

Courts may exempt certain persons or classes of persons from payment of the user access fee. Examples of individuals and groups that a court may consider exempting include: indigents, bankruptcy case trustees, pro bono attorneys, pro bono alternative dispute resolution neutrals, Section 501(c)(3) not-for-profit organizations, and individual researchers associated with educational institutions. Courts should not, however, exempt individuals or groups that have the ability to pay the statutorily established access fee. Examples of individuals and groups that a court should not exempt include: local, state or federal government agencies, members of the media, privately paid attorneys or others who have the ability to pay the fee. [emph. added]

Unfortunately, the note is making a rather dated assumption that all journalists work for the Washington Post, when in actuality, many journalists work for small nonprofits who don’t have a great deal of cash on hand.

Problems with fee exemption language aside, what stood out in this case was the court’s aside on the fact that there really is no way for an individual or organization to appeal a PACER fee decision. As Judge O’Scannlain noted at the beginning of his opinion:

I write individually to acknowledge “the elephant in the room”: to whom does one go for review when an application for an exemption from PACER fees has been denied?

Yes, indeed: who do we go to when appealing a PACER fee exemption decision? Considering how expensive PACER is, and how the costs can quickly escalate because of arbitrary charging for almost all activity, entities can find it extremely expensive to access court documents via the application. Yet many of the entities serve the needs of the community when accessing the documents, and do so without generating a profit. So, where do these entities go when a fee exemption decision doesn’t go their way?

Evidently, as things now stand, nowhere. At the end of O’Scannlain’s opinion, he wrote:

PACER fee determinations are just one of the “increasing numbers of administrative responsibilities” being assigned to district courts “that are not subject to review by appeal.”….

Because (as the opinion discusses) there is “no right of formal appeal” to contest the amount of a Criminal Justice Act fee award, Congress decided to create an administrative “review process separate from the traditional right of appeal.” In re Smith, 586 F.3d 1169, 1173 (9th Cir. 2009) (explaining that “excess fees must be approved both by the presiding judge and the chief circuit judge or his delegate”).

Assuming ordinary PACER-fee determinations are not reviewable by the judiciary’s administrative apparatus, it will be up to Congress to decide whether to fashion an appellate review mechanism, or whether to leave them within the exclusive purview of district courts.


Is Your Web Site Popular Enough to Deserve a FOIA Fee Waiver?

Another great resource for finding court documents related to interesting and/or important court cases is the Courthouse News Service. Thanks to it, I discovered two separate court decisions about fee waivers for PACER and FOIA requests. I’ll talk about the FOIA case in this writing, and cover the PACER decision in a follow up.

In the first decision, Judge Emmet Sullivan ruled that a non-profit organization was not eligible for a fee waiver for a FOIA request, because, bluntly, it wasn’t popular enough. Or, to be more exact, the plaintiff, Cause of Action, couldn’t demonstrate a capability of disseminating the acquired information to enough people to justify the government absorbing the expense of meeting the FOIA request.

In the decision, Judge Sullivan wrote:

To show the requested information would increase understanding of the public at large, Plaintiff must demonstrate “in detailed and non-conclusory terms,” that it has the intent and ability to effectively convey the information to a broad segment of the public and therefore, the FTC, as surrogate for the public, should foot the bill for a fee waiver…Although requestors are not required to explain their dissemination plan with “pointless specificity” to satisfy this element, they must identify several methods of disseminating the information and provide some concrete basis upon which the agency can conclude that those methods are adequate to convey the requested information to a wide audience.

By law, we have access to certain government information via the Freedom of Information Act, but obtaining this information can be resource intensive for the government agency meeting the demand, and costly to the entity making the demand. In order to ensure as open an access as possible, the Freedom of Information Act includes provisions for fee waivers.

Whether an entity is charged a fee or not is based on a determination: fees are waived “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”. People and organizations can ask to have fees waived, but they need to meet the two primary tests: that the requested information contributes to the public knowledge about how the government operates, and the requester doesn’t want the information for primarily commercial reasons.

Once an entity has proved it doesn’t plan on using the information for commercial purposes, then the fun part starts. To establish the public interest component, the government agency applies a 4-factor test to determine if the fees may be waived.

In Judge Sullivan’s decision:

First, requestors must demonstrate that the information they seek concerns the operations or activities of government. Second, they must demonstrate that the disclosure is likely to contribute to an understanding of the operations or activities of government. Third, they must show that the disclosure will contribute to an understanding of the subject by the public at large. Fourth, they must demonstrate that the information will contribute significantly to such understanding.

The court case decision encompassed three separate FOIA requests.

In the first request, Cause of Action was able to successfully “pass” the first, second, and fourth tests, but failed in the third.

Throughout its voluminous correspondence with the FTC regarding its first FOIA request, it identified only two methods of dissemination, which it discussed only in footnotes: its website and articles published by news media that have relied upon COA’s past work on other issues…Plaintiff did not provide any estimate of the number of people likely to view its website, nor did it demonstrate other ways in which it would disseminate the information itself, without relying on another source. Id. And although COA provided a string cite of articles authored and published by other outlets as a result of its past efforts to gather information on other topics, it specified no organizations which would disseminate this information.

Another fee waiver request was denied because it failed the third and fourth tests.

The Court finds that Plaintiff did not satisfy this third element for the same reasons that Plaintiff did not satisfy this third element for its first request: COA did not specifically
demonstrate its intent and ability to disseminate the requested information to the public. Regardless of whether or not the website was functional, Plaintiff made no attempt to explain how many people likely view its website and thus would likely view the requested information…Plaintiff has also not satisfied the fourth element of the test and shown that the information would significantly contribute to public understanding. Because the primary beneficiary of the requested information is Plaintiff, the information is not likely to significantly contribute to public understanding.

This decision concerns me because I do make FOIA requests, and then use the information in articles I publish primarily at my web sites. I also post the raw data online, here at Documents at Burningbird. I’ve not been charged, yet, for any of my FOIA requests; thankfully, because I have limited funds and if the charges are too high, I would have to abandon the FOIA request.

Do I now have to be concerned about the popularity of my sites before I make a fee request? If so, what is the threshold for popularity? And how do I demonstrate that I meet this threshold? Do I need to provide screenshots of my web page statistics? Is there some W rating, similar to the infamous Q rating, I must meet in order to be deemed sufficiently popular enough to justify the fee waiver?

Do I have to appear on radio or television in addition to the Web? Must I be a guest on the Daily Show in order to demonstrate my viability as a medium of information dissemination?

In addition to the ambiguity associated with determining which entity does, and does not, have the ability to disseminate information broadly enough, both the agency receiving the FOIA request—the FTC— and Judge Sullivan demonstrated a breathless lack of understanding about web technologies. True, Cause of Action didn’t help itself by not having a web site online at the time it made its requests. But if it did, it would most likely share one thing in common with my web site: the fact that its web pages are accessed by search engine bots that then incorporate what they find into search results in tools such as Google.

Is Google, then, sufficiently popular?

Open Google in your browser. Search for the court case, “Front Range Equine Rescue et al v. Vilsack et al”. Now, have I sufficiently demonstrated my ability to broadly disseminate information?

And what does it mean, to “disseminate information”? Evidently, it has something to do with the purpose and format of making the information available, in addition to breadth of delivery. Judge Sullivan stated the following in regards to Cause of Action’s request for fee waiver as representatives of news media:

Upon review of the administrative record, the Court finds Plaintiff did not satisfy the third element of the news media requestor definition. First, Plaintiff has not specifically demonstrated its intent and ability to disseminate the requested information to the public rather than merely make it available [emph added]. In EPIC, the requestor satisfied this element by indicating that its newsletter reached 15,000 readers and had been published every two weeks for the past eight years…Second, the administrative record does not show that Plaintiff’s activities are organized especially around dissemination. For a “representative of the news media” fee waiver request, the requestor should be identified by its activities rather than by its description

Here at Documents at Burningbird, am I making information available, or disseminating information? Must I have a newsletter, or is posting links for writings to Twitter, Facebook, and Google+ sufficient?

The Freedom of Information Act was created in order to ensure transparency in government. Though we shouldn’t encourage frivolous FOIA requests, nor insist that government agencies drop their other needed work in order to fulfill FOIA requests (or go broke trying to meet overly broad FOIA requests), when a legitimate, targeted request is submitted by an entity, we shouldn’t demand that the entity meet some arbitrary level of popularity in order to determine whether the fee should be waived or not. Neither should the entity arbitrarily be forced into supporting multiple media in order to justify fee waiver requests.

What we can take away from Judge Sullivan’s decision is that we do make a FOIA request, we’ll have to be even more cautious in how we word a request for fee waivers. We’ll need to demonstrate not only that the information is in the public interest, but also provide details in how we’ll ensure public access to the information. We’ll also need to, somehow, convey the purpose of the information access—that we’re disseminating the information rather than just making it available, especially if we’re representing ourselves as part of the news media.

(If I’m not part of the news media, can I just make it available? Am I hurting my FOIA fee waiver requests by having a site like Documents at Burningbird?)

Unfortunately, the difficulty we face composing fee waiver requests is compounded by the fact that the different agencies apply different “standards” when determining fee waiver eligibility, with some being quite open to the requests (USDA and generally the EPA), and others being less so (the FTC). Our efforts also aren’t assisted by judicial decisions that don’t reflect understandings about current technologies.

Documents Legal, Laws, and Regs

Another excellent court resource: Justia

I was reminded of another valuable resource for accessing court documents: Justia. I’ve used the site many a time, and it’s helped me discover cases related to one entity or another more than once.

You can search for a court case for free at Justia, and once you’ve found the case, you can then directly access the PACER court documents from the returned result. Using Justia you can save on the dime-a-page query forms that PACER provides.

As an example, when I searched on “Front Range Equine Rescue” and New Mexico, I found the listing for the court case I’m currently following related to horse meat plants and USDA inspections that has been on fire with activity today. Yes, I still need to use PACER to access the docket and court cases, but I’ve saved from a dime to a dollar just finding the case.

Hey, every penny counts.

Documents Legal, Laws, and Regs

Front Range Equine Rescue vs. USDA on allowing horse slaughter: Update

This court case has been on fire today. Several new filings, all related to the recent motion by the plaintiffs to re-word the TRO (Temporary Restraining Order) and bond amount. The judge gave the defendant USDA and interveners until noon today to respond.

I’m re-doing the docket sheet for the case, and will post it and links to all downloaded court documents later. I’m also writing a follow up article on the case at Burningbird web site. For now, though: links to today’s filings.

Motion against filed by Responsible Transportation

Motion against filed by International Equine Business Association and a pack of other people and groups.

Declaration by Ricardo De Los Santos

Motion against by the USDA

Motion against filed by Valley Meat Company et al

Memo in support by the State of New Mexico

There are associated attachments, too, but this should be enough to keep folks busy.