United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued January 13, 2015             Decided August 25, 2015

                        No. 13-5335

                     CAUSE OF ACTION,
                       APPELLANT

                              v.

               FEDERAL TRADE COMMISSION,
                       APPELLEE


        Appeal from the United States District Court
                for the District of Columbia
                    (No. 1:12-cv-00850)


    Aram A. Gavoor argued the cause for appellant. With him
on the briefs were Patrick J. Massari, Allan L. Blutstein, R.
James Valvo III, and Marie Allison Connelly. Daniel Z. Epstein
and Reed D. Rubinstein entered appearances.

    Katie Townsend argued the cause for amici curiae Reporters
Committee for Freedom of the Press, et al. On the brief were
Bruce D. Brown, Gregg P. Leslie, Peter E. Scheer, and Greg
Lewis.

    Victoria Toensing, Joseph E. diGenova, and Brady
Toensing were on the brief for amicus curiae The Daily Caller
News Foundation in support of appellant.
                                2

     Peter R. Maier, Assistant U.S. Attorney, argued the cause
for appellee. On the brief were Ronald C. Machen, Jr., U.S.
Attorney, and R. Craig Lawrence and Alan Burch, Assistant
U.S. Attorneys. Mitchell P. Zeff, Assistant U.S. Attorney,
entered an appearance.

   Before: GARLAND, Chief Judge, BROWN, Circuit Judge, and
SENTELLE, Senior Circuit Judge.

    Opinion for the Court filed by Chief Judge GARLAND.

     GARLAND, Chief Judge: Cause of Action (“Action”), a
nonprofit organization, filed a series of three Freedom of
Information Act (FOIA) requests with the Federal Trade
Commission. The question presented is who should pay the
costs of satisfying those requests. Action contends that FOIA
entitles it to a complete waiver of the customary fees because
“disclosure of the information is in the public interest,” 5 U.S.C.
§ 552(a)(4)(A)(iii). In the alternative, Action contends that it is
entitled to a waiver of all but duplication costs because it is “a
representative of the news media,” id. § 552(a)(4)(A)(ii)(II).

     The Commission and the district court rejected Action’s
claims for fee waivers regarding its first and second FOIA
requests, and then concluded that Action’s claims regarding its
third request were moot. We conclude that Action’s claims
regarding its third request were not moot, and that the case must
be remanded for reconsideration in light of the entire
administrative record and our clarification of the standards for
FOIA fee waivers.

                                 I

    FOIA permits an agency to exact a reasonable charge for
“document search, duplication, and review, when records are
                                3

requested for commercial use.” 5 U.S.C. § 552(a)(4)(A)(ii)(I).
Certain categories of requests and requesters, however, are
entitled to more favorable treatment. Two such categories are
at issue in this case. First, an agency must furnish records
without any charge or at a reduced 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.” Id. § 552(a)(4)(A)(iii)
(emphasis added). Second, an agency may charge only for
duplication costs “when records are not sought for commercial
use and the request is made by . . . a representative of the news
media.” Id. § 552(a)(4)(A)(ii)(II) (emphasis added). Action
asked the Federal Trade Commission (FTC) for fee waivers
under both categories.

                                A

     Action is a nonprofit organization that “advocates for
economic freedom and opportunity by educating the public
about the threat posed by improvident federal regulations,
spending, and cronyism.” Action Br. 6. It began operations on
August 15, 2011. Two weeks later, Action submitted its first
FOIA request to the FTC, seeking all records relating to the
Commission’s guides for the use of product endorsements in
advertising. The request covered, inter alia, records relating to
the drafting of the guides and to investigations of alleged
violations of the guides. Action later agreed to limit its request
to records relating to “changes to the Guides concerning social
media authors,” FTC Letter of 9/22/2011 (App. 24), and said
that it was interested in using the requested information to
inform the public about a threat to the First Amendment rights
of such authors. Action also asserted that, as a nonprofit
educational organization with no commercial purpose, it was
entitled to a public-interest fee waiver.
                                 4

     The FTC denied Action’s public-interest waiver application,
stating that the statute provides for such a waiver only if
disclosure is “‘likely to contribute significantly to public
understanding of the operations or activities of the
government.’” FTC Letter of 9/22/2011 (App. 25) (quoting 5
U.S.C. § 552(a)(4)(A)(iii)). Action responded by asserting that
disclosure of the records was in fact likely to make such a
contribution. Action also asserted, in the alternative, that it was
entitled to a fee waiver as a representative of the news media.
Action Letter of 9/26/2011 at 1 (App. 26) (citing 5 U.S.C.
§ 552(a)(4)(A)(ii)(II)). In reply, the FTC said that Action was
not entitled to either form of relief because, inter alia, “you have
not demonstrated your ability [to] disseminate information.”
FTC Letter of 10/7/2011 (App. 28). Pursuant to its rules for
“general public” requesters, the Commission provided Action
with 100 pages of records free of charge. See 16 C.F.R.
§ 4.8(b)(3); see also 5 U.S.C. § 552(a)(4)(A)(iv)(II). It retained
the additional responsive pages pending receipt of payment from
Action. Action then filed an administrative appeal within the
agency, which the agency denied, reiterating that “you have
failed to provide adequate information about your dissemination
plans.” FTC Letter of 11/29/2011 at 1 (App. 35).

     In tandem with the administrative appeal of its fee-waiver
applications regarding its first request, Action made a second
FOIA request, this time for all records concerning prior cases in
which the FTC granted public-interest fee waivers and the
process by which the Commission made those determinations.
Action applied for public-interest and news-media fee waivers
for this second request as well. Once again, the FTC denied the
fee-waiver applications, designated Action as a “general public”
requester, provided it with 100 pages without charge, and
retained the remaining responsive pages pending payment. The
Commission also withheld portions of eight documents under
various statutory exemptions to FOIA. Action again filed an
                                5

administrative appeal of the denial of its applications for fee
waivers, which the FTC again denied, stating that Action had
“failed to provide any meaningful level of detail regarding [its]
dissemination efforts or ability,” FTC Letter of 2/27/2012 at 1
(App. 161), and failed to provide “sufficient information to
establish [its] status as a news media representative,” id. at 3.

     On January 27, 2012, Action made its third and final FOIA
request. This request “perfected,” repeated, and expanded the
subject matter of Action’s earlier requests. Action Letter of
1/27/2012 at 8 (App. 159). It also made an entirely new request:
for all records relating to the process by which the FTC had
determined that Action, in particular, was not entitled to a fee
waiver for its earlier requests. The FTC disregarded the part of
Action’s submission that merely renewed its prior requests on
the ground that it was a “duplicate” of those requests. FTC
Letter of 3/19/2012 at 1 n.1 (App. 174). The Commission
identified 95 pages of records responsive to the other parts. It
withheld 16 of those pages under a FOIA exemption and
released the remaining pages without charge under its 100-free-
pages rule. Having done so, the FTC declined to decide whether
Action qualified for a public-interest or news-media waiver for
the third request. Action filed another administrative appeal,
which the FTC again denied, stating that the fee-waiver question
was now moot.

     Although Action’s initial FOIA request simply asserted that
Action was entitled to a fee waiver because it was a nonprofit
organization, the agency record expanded significantly over the
course of Action’s dialogue with the FTC. All told, Action sent
seven letters to the Commission in support of its fee-waiver
applications. By the time of its appeal from the agency’s denial
of the fee-waiver applications for its third request, a much fuller
picture of Action’s activities and intentions had come into view.
Action said that it planned to analyze the responsive records, use
                                  6

its editorial skills to create distinct works, and share the resulting
analysis with the public through a variety of channels, including
its “regularly published online newsletter,” its “regular
periodicals” (“Agency Check” and “Cause of Action News”), its
“frequently visited” website, and its Twitter and Facebook
followings. Action Letter of 4/4/2012 at 6-7 (App. 181-82).
Action also stated its intention to write two specific reports
within two weeks of receiving the documents: one entitled
“How the FTC Denies Fee Waivers to Organizations That Seek
Information About FTC Operations,” and the other entitled “The
FTC and the Guides Concerning Endorsements: Why the
Change?” Id. at 6. Finally, Action pointed the Commission to
its history of “extensive publication activities,” id. at 7,
including examples of nearly twenty online articles published by
other media outlets that “feature [Action’s] work,” Action Letter
of 1/27/2012 at 3-4 & n.7 (App. 154-55); see Action Letter of
4/4/2012 at 7-8 & n.25 (App. 182-83).

                                  B

     On May 25, 2012, Action filed suit in the United States
District Court for the District of Columbia, challenging both the
Commission’s decision to withhold some of the responsive
records as exempt from disclosure and its denial of Action’s
applications for fee waivers. With respect to the withheld
documents, the district court granted summary judgment for the
Commission regarding most of the documents. Neither party
has appealed that decision. With respect to the fee-waiver
applications, the district court also granted summary judgment
for the Commission. The court concluded that Action was not
entitled to either category of fee waiver for the first two FOIA
requests. And like the FTC, it declared the fee-waiver issues for
the third request moot. Cause of Action v. Federal Trade
Comm’n, 961 F. Supp. 2d 142 (D.D.C. 2013).
                                   7

     Action appeals the district court’s adverse decisions with
respect to its public-interest and news-media waiver applications
and with respect to mootness. We review de novo both the
district court’s grant of summary judgment and the agency’s
denial of the fee-waiver applications. See Judicial Watch, Inc.
v. Rossotti, 326 F.3d 1309, 1311 (D.C. Cir. 2003); 5 U.S.C.
§ 552(a)(4)(A)(vii) (providing that, “[i]n any action by a
requester regarding the waiver of fees[,] . . . the court shall
determine the matter de novo”). The same is true for the court’s
conclusion that the fee-waiver applications for the third FOIA
request were moot. We address the mootness issue in Part II
and the fee-waiver issues in Parts III and IV.

                                   II

      The FTC and the district court declared the fee-waiver
issues moot for Action’s third FOIA request on the ground that
the Commission had already given Action the requested
documents free of charge.1 But in fact, the FTC had not -- and
still has not -- produced all of those documents without charge.
Indeed, as far as the record before us reflects, it has not
produced all of those documents at all -- because Action has not
paid for them.

     1
      Following the parties’ usage, we use the term “moot” in the
colloquial sense to refer to an issue that is no longer of practical
significance. Because the allegedly mooting event -- the FTC’s
asserted release of the documents without charge -- occurred before
the district court litigation began, the question may be one of standing
rather than mootness. See generally Friends of the Earth, Inc. v.
Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189-92 (2000).
Alternatively, if it were truly seeking fee waivers for documents that
were released without fees, Cause of Action would have no cause of
action. In the end, none of these distinctions matter because, as we
discuss in the text, the FTC did not produce all of the requested
documents without charge.
                                  8

     The Commission did produce without charge all non-
exempt documents responsive to the new parts of the third
request, because those documents numbered fewer than 100
pages. Accordingly, the fee issue is moot for those parts of the
request. But a part of the third FOIA request also renewed
Action’s two earlier requests and sought to “perfect[]” them by
providing supplemental information about Action’s
qualifications and recent activities. Action Letter of 1/27/2012
at 8-9 (App. 159-60).2 The FTC had previously provided 100
pages free of charge in response to each of the first two requests,
but it declined to produce the remaining pages until Action paid
for them. See, e.g., Gray Decl. ¶¶ 20-22 (App. 244-45)
(declaring that the FTC provided 100 out of 156 pages in
response to the second request). Nor did it provide the
remainder in response to the third FOIA request’s demand for
them.

    The Commission declined to process the part of the third
request that sought previously requested documents on the
ground that it was a “duplicate” of the earlier requests. FTC
Letter of 3/19/2012 at 1 n.1 (App. 174). The government now
grants that the agency “may have made a mistake.” Oral Arg.
Recording 52:37-53:43. It did. The third request sought
documents that the FTC still had not produced because Action
had not paid for them, and the Commission and the court were
obliged to consider whether the continued denial of fee waivers
with respect to those documents was warranted.



     2
      See Action Letter of 1/27/2012 at 2 (App. 153) (“[I]n order to
avoid litigation over a fee waiver denial, Cause of Action would like
to provide additional information as part of an appeal of your fee
waiver denial [for the second FOIA request], and hope that this
information will prove helpful in reconsidering the original denial of
a fee waiver [for the first request].” (emphasis omitted)).
                                9

     Of course, if the third request had provided no new
evidence in support of Action’s applications for fee waivers, it
would have been perfectly appropriate for the FTC and the court
to rest their denials on their previous determinations that the
evidence submitted with the first two requests was insufficient.
But Action did provide more evidence of its qualifications. See
supra Part I.A. Likewise, if Action had been peppering the FTC
with repeated requests supported by only marginally relevant
additional evidence, it might have been reasonable for the
agency to decline to undertake repeated reconsideration. But
this was only Action’s third request, and it provided
considerably more supportive evidence. Moreover, Action was
a newly formed and quickly evolving organization trying to
supplement the record with new evidence of its track record and
intentions as they developed. There is no dispute about its good
faith in doing so.

     At oral argument, the FTC acknowledged that Action would
be “entitled to present all this information” regarding its fee-
waiver claims if it filed yet a fourth FOIA request seeking the
very same records. See Oral Arg. Recording 1:10:40-1:11:05.
The Commission is right about that. See Spannaus v. Dep’t of
Justice, 824 F.2d 52, 61 (D.C. Cir. 1987) (noting that, although
the statute of limitations barred the requester’s challenge to the
agency’s denial of his FOIA request, he could “simply refile his
FOIA request tomorrow and restart the process”). But we see no
material difference between such a new fourth request and the
third request that Action actually did file prior to bringing suit
in the district court.

    Because the FTC has not produced without charge all the
non-exempt documents Action sought in its third request,
Action’s applications for fee waivers are not moot. FOIA
requires the district court to review the denial of a fee waiver
based on “the record before the agency.”               5 U.S.C.
                                10

§ 552(a)(4)(A)(vii). Because that record encompasses all of
Action’s submissions, including those in connection with its
third request, the district court must review those submissions to
determine whether Action qualified for the fee waivers it sought.
Because that has not yet happened, we will remand the case to
give the court an opportunity to conduct the required review.

                                III

      In a number of particulars, Action challenges the ways in
which the district court analyzed FOIA’s public-interest and
news-media provisions in connection with its fee-waiver
applications for the first and second FOIA requests. We agree
that there are problems in that analysis. Some of those problems
can be laid at the feet of this court, which has provided relatively
little guidance regarding the complexities of those two
provisions. Some problems can be attributed to amendments to
FOIA that have not yet been captured in judicial opinions. And
some can be attributed to the FTC, which pressed erroneous
interpretations of FOIA contained in its own regulations. In
order to facilitate the district court’s consideration on remand,
we address Action’s challenges below. We address the public-
interest waiver provision in this Part and the news-media
provision in Part IV.

     The text of the public-interest waiver provision indicates
that such a fee-waiver application must satisfy three criteria.
Disclosure of the requested information must: (1) shed light on
“the operations or activities of the government”; (2) be “likely
to contribute significantly to public understanding” of those
operations or activities; and (3) not be “primarily in the
commercial interest of the requester.”                5 U.S.C.
§ 552(a)(4)(A)(iii). The FTC has issued a regulation
interpreting this statutory provision, see 16 C.F.R. § 4.8(e)(2),
and both the Commission and the district court applied that
                                11

regulation in evaluating Action’s fee-waiver applications.
FOIA, however, requires the court “to determine the matter de
novo,” 5 U.S.C. § 552(a)(4)(A)(vii), and courts “owe no
particular deference to [an agency’s] interpretation of FOIA,”
Rossotti, 326 F.3d at 1313; see Al-Fayed v. CIA, 254 F.3d 300,
307 (D.C. Cir. 2001) (“[B]ecause FOIA’s terms apply
government-wide[,] . . . we generally decline to accord
deference to agency interpretations of the statute, as we would
otherwise do under Chevron.”).

    The district court concluded that Action’s first and second
FOIA requests failed to qualify for public-interest waivers. We
consider below the law the court applied in reaching those
conclusions.

                                 A

     The district court found that Action’s first request -- for
documents regarding the Commission’s product-endorsement
guides -- satisfied all of the elements it thought were required
for a public-interest waiver, except one: Action had “not
demonstrated that the requested information would increase
understanding of the public at large.” Cause of Action, 961 F.
Supp. 2d at 156 (citing the FTC’s fee-waiver regulation, 16
C.F.R. § 4.8(e)(2)(i)(C) (2012)). To do so, the court said,
Action must demonstrate it has “the intent and ability to
effectively convey the information to a broad segment of the
public.” Id. at 157.3 According to the court, a FOIA requester
“must identify several methods of disseminating the information
and provide some concrete basis upon which the agency can



    3
     Action’s intent to convey the information was not at issue. The
court doubted only that Action “has the ability” to reach a wide
audience. Cause of Action, 961 F. Supp. 2d at 158.
                                 12

conclude that those methods are adequate to convey the
requested information to a wide audience.” Id.

     The FTC regulation cited by the district court does require
a requester to show that the information it seeks would increase
the understanding of the public “at large.” 16 C.F.R.
§ 4.8(e)(2)(i)(C). But FOIA itself does not. The statute requires
only that the disclosure be likely to contribute significantly to
“public” understanding. 5 U.S.C. § 552(a)(4)(A)(iii). Nor does
the statute require a requester to show an ability to convey the
information to a “broad segment” of the public or to a “wide
audience.” To the contrary, we have held that “proof of the
ability to disseminate the released information to a broad
cross-section of the public is not required.” Judicial Watch, Inc.
v. Dep’t of Justice, 365 F.3d 1108, 1126 (D.C. Cir. 2004); see
Carney v. U.S. Dep’t of Justice, 19 F.3d 807, 814-15 (2d Cir.
1994) (rejecting the assertion that, because a scholar’s proposed
articles would not “reach a broad cross-section of the public” or
“a general audience,” his request did not come within the public-
interest provision).

      We recognize that the requirement that disclosure of the
requested information be “likely to contribute significantly to
public understanding” defies easy explication. Application of
this criterion may well require assessment along two
dimensions:       the degree to which “understanding” of
government activities will be advanced by seeing the
information; and the extent of the “public” that the information
is likely to reach.4 The district court’s focus was on the second


     4
      See Carney, 19 F.3d at 814 (“In determining whether disclosure
of records will contribute significantly to the public’s understanding
of the operation or activities of the government, it is relevant to
consider the subject matter of the requests and the ability of the
requester to disseminate the information.”); Larson v. CIA, 843 F.2d
                                   13

dimension.5 But as we have said, FOIA does not require that a
requester be able to reach a “wide audience.” Rather, as the
Second Circuit has held, “the relevant inquiry . . . is whether the
requester will disseminate the disclosed records to a reasonably
broad audience of persons interested in the subject.” Carney, 19
F.3d at 815. That standard is consistent with our precedent, see
Judicial Watch, 365 F.3d at 1126; Larson v. CIA, 843 F.2d 1481,
1482 (D.C. Cir. 1988), and with the limited legislative history.6



1481, 1483 (D.C. Cir. 1988) (affirming denial of a fee waiver because,
while “the subject matter of [the] request is of public interest,” the
requester failed to demonstrate an “[]ability to disseminate the
information to the public”).
     5
      Regarding the first dimension, the court did not question the
“informative value of the information” requested, see Rossotti, 326
F.3d at 1313, and did not disagree that a sufficient amount of this
information was not yet in the public domain, Cause of Action, 961 F.
Supp. 2d at 156; see Campbell v. U.S. Dep’t of Justice, 164 F.3d 20,
36 (D.C. Cir. 1998).
     6
       Compare 132 CONG. REC. 27,191 (1986) (statement of Sen.
Leahy) (“A request can qualify for a fee waiver even if the issue is not
of interest to the public-at-large” because “[p]ublic understanding is
enhanced when information is disclosed to the subset of the public
most interested, concerned, or affected by a particular action or
matter.”), with id. at 31,424 (statement of Sen. Hatch) (“It is intended
that the word ‘significantly’ . . . [and] the qualifying word ‘public’ be
applied so as to require a breadth of benefit beyond any particularly
narrow interests that might be presented.”). Senators Leahy and Hatch
were two of the three cosponsors of the amendment that created the
current version of the public-interest provision. See id. at 26,763; see
also Nat’l Sec. Archive v. U.S. Dep’t of Def., 880 F.2d 1381, 1384-85
(D.C. Cir. 1989) (explaining that, because this legislation was not
referred to committee, “the statements of the sponsors of the bill”
comprise the only relevant legislative history).
                                  14

     Nor must a requester “identify several methods of
disseminating the information” it seeks, a requirement the
district court found Action failed to meet because it “identified
only two methods[,] . . . its website and articles published by
news media that have relied upon [its] past work on other
issues.” Cause of Action, 961 F. Supp. 2d at 157. It is true, as
the court noted, that in Judicial Watch v. Rossotti we found the
requester had demonstrated its ability to disseminate the
requested information by identifying “nine ways it
communicates information to the public.” Id. (citing Rossotti,
326 F.3d at 1314). But we did not suggest that number
represented a necessary minimum. See Rossotti, 326 F.3d at
1314. There is nothing in the statute that specifies the number
of outlets a requester must have, and surely a newspaper is not
disqualified if it forsakes newsprint for (or never had anything
but) a website.

     We do agree with the district court that Action’s initial
submissions offered little information about whom the specific
disclosures it sought could reasonably be expected to reach.
Fee-waiver applicants must support their claims with
“‘reasonable specificity.’” Rossotti, 326 F.3d at 1312 (quoting
Larson, 843 F.2d at 1483).7 But whether Action cleared that bar
with the substantial additional evidence it submitted with its
third request -- evidence regarding its newsletter, periodicals,
website, social media presence, planned reports, and press
releases to media contacts -- must be addressed on remand. As


     7
       Cf. Larson, 843 F.2d at 1483 (“Larson’s allegations, as presented
in the administrative record, failed to identify the newspaper company
to which he intended to release the requested information, his purpose
for seeking the requested material, or his professional or personal
contacts with any major newspaper companies. The absence of this
information demonstrates an inability to disseminate the information
to the public.”).
                                15

government counsel acknowledged at oral argument, even the
FTC is “not in a position to say” that the complete agency record
“isn’t enough” for a fee waiver or reduction, “because it is a
substantially greater showing than [Action] made with requests
one and two.” Oral Arg. Recording 54:30-42.

                                B

     The district court found that Action’s second FOIA request
-- for documents concerning the FTC’s history of granting
public-interest fee waivers -- also failed to qualify for a public-
interest waiver. It did so for several reasons.

     1. First, the court again found that Action failed to show it
had the ability to disseminate the requested information to a
broad segment of the public. We need say no more about this
“broad segment” requirement than we have just said in Part
III.A.

     2. The court further held that Action failed to qualify for a
waiver “[b]ecause the primary beneficiary of the requested
information is [Action].” Cause of Action, 961 F. Supp. 2d at
159 (emphasis added). The court acknowledged that Action
planned to write a report about how the FTC grants public-
interest waivers, and that the planned report “may well benefit
the public.” Id. But it agreed with the FTC that Action did not
“primarily ma[k]e this second request in order to . . . benefit the
public.” Id. Rather, Action’s “primary interest in the second
request was . . . to better prepare itself for an appeal of its fee
waiver denial of its first request.” Id.

     In applying a “primary beneficiary” test, the court relied on
this circuit’s decision in National Treasury Employees Union v.
Griffin, which held that requesters must “indicate that a fee
waiver or reduction will primarily benefit the public.” 811 F.2d
                                  16

644, 648 (D.C. Cir. 1987). Griffin was decided under the pre-
1986 statute, which expressly authorized fee waivers only when
“‘furnishing the information can be considered as primarily
benefitting the general public.’” Id. at 646-47 (quoting 5 U.S.C.
§ 552(a)(4)(A) (1982)); see id. at 647 n.2. In 1986, however,
amendments to FOIA eliminated that requirement. See Freedom
of Information Reform Act of 1986, Pub. L. No. 99-570, § 1803,
100 Stat. 3207-48, 3207-50 (codified at 5 U.S.C.
§ 552(a)(4)(A)(iii) (2012)). Now the text requires only that the
disclosure be “likely to contribute significantly to public
understanding.” Id.

     It is still the case, of course, that a requester is ineligible for
a waiver if the requested information will be to its benefit alone.
The statute requires, after all, that the information contribute to
public understanding. 5 U.S.C. § 552(a)(4)(A)(iii); see Forest
Guardians v. U.S. Dep’t of Interior, 416 F.3d 1173, 1179 (10th
Cir. 2005) (“FOIA fee waivers are limited to disclosures that
enlighten more than just the individual requester . . . .”). But
since the 1986 amendments, it no longer matters whether the
information will also (or even primarily) benefit the requester.
Nor does it matter whether the requester made the request for
the purpose of benefiting itself. The statutory criterion focuses
only on the likely effect of the information disclosure.

     3. In light of its conclusion that the second request failed to
satisfy the public-interest provision in the above two ways, the
district court found it unnecessary to resolve the FTC’s
contention that the request also failed because disclosure of the
information was “‘primarily in the commercial interest of the
requester.’” Cause of Action, 961 F. Supp. 2d at 159 n.4
(quoting 5 U.S.C. § 552(a)(4)(A)(iii)). The court indicated,
however, that if it “were to consider the commercial interest
prong of the test, . . . it would likely find [Action’s] second
                                  17

request fails that as well, because of its nexus with the lawsuit
[Action] filed against the agency.” Id.

     But Action’s interest in information regarding the FTC’s
treatment of fee-waiver applications (including Action’s own)
is not rendered “commercial” merely because the information
could help it obtain a fee waiver. See McClellan Ecological
Seepage Situation v. Carlucci, 835 F.2d 1282, 1285 (9th Cir.
1987) (holding that FOIA “[i]nformation helpful to a tort claim
furthers a requester’s interest in compensation or retribution, but
not an interest in commerce, trade, or profit”); McClain v. U.S.
Dep’t of Justice, 13 F.3d 220, 220 (7th Cir. 1993) (“McClain
sought the documents primarily to facilitate a challenge to his
conviction; this is not a ‘commercial’ interest.”).8 Of course, if
a requester’s only interest in a particular request is to further its
own litigation, it may be difficult or impossible to show that
disclosure of the information is likely to contribute significantly
to public understanding. See Carney, 19 F.3d at 816; McClain,
13 F.3d at 221. But in that situation, the fee-waiver application
runs aground on a different element of the public-interest test.

                                  IV

    Action contends that, even if it does not qualify for a
public-interest fee waiver, it is entitled to a waiver of all but the
FTC’s copying costs because it is a “representative of the news
media.” 5 U.S.C. § 552(a)(4)(A)(ii)(II). Although Congress
added this fee-waiver category to FOIA in the Freedom of
Information Reform Act of 1986 (FIRA), Pub. L. No. 99-570,


     8
      See also Office of Mgmt. & Budget, Uniform FOIA Fee
Schedule & Guidelines, 52 Fed. Reg. 10,012, 10,017-18 (Mar. 27,
1987) (interpreting “commercial use” in 5 U.S.C. § 552(a)(4)(A)(ii)
as a use that “furthers the commercial, trade or profit interests of the
requester”).
                               18

§ 1803, 100 Stat. 3207-48, 3207-50, we have issued only one
opinion that has addressed its meaning in any detail, Nat’l Sec.
Archive v. U.S. Dep’t of Def., 880 F.2d 1381 (D.C. Cir. 1989),
and none since Congress expressly defined the category in 2007,
see OPEN Government Act of 2007, Pub. L. No. 110-175, § 3,
121 Stat. 2524, 2525 (codified at 5 U.S.C. § 552(a)(4)(A)(ii)).

                               A

     In 1986, FIRA added the “representative of the news
media” fee-waiver category to FOIA, but did not define which
entities would qualify. FIRA § 1803, 100 Stat. at 3207-48
(codified at 5 U.S.C. § 552(a)(4)(A)(ii)(II)). It did, however,
instruct the Office of Management and Budget (OMB) to
promulgate “guidelines[,] . . . which shall provide for a uniform
schedule of fees” to which individual agencies’ fee guidelines
had to conform. 5 U.S.C. § 552(a)(4)(A)(i); see Media Access
Project v. FCC, 883 F.2d 1063, 1069 (D.C. Cir. 1989).
Thereafter, OMB promulgated guidelines that defined a
“representative of the news media” as “any person actively
gathering news for an entity that is organized and operated to
publish or broadcast news to the public.” Uniform FOIA Fee
Schedule & Guidelines, 52 Fed. Reg. 10,012, 10,018 (Mar. 27,
1987) [hereinafter OMB Guidelines]. The OMB Guidelines
offered some textbook examples of news-media entities
(“television or radio stations” and “publishers of periodicals”),
but noted that those examples were “not intended to be all-
inclusive.” Id. The Guidelines also stated that, “as traditional
methods of news delivery evolve (e.g., electronic dissemination
of newspapers through telecommunications services), such
alternative media would be included in this category.” Id.

     Two years later, in 1989, this court decided its principal
case concerning the criteria for qualifying as a “representative
of the news media.” In National Security Archive v. Department
                                19

of Defense, we concluded that the Archive, a nonprofit
institution, qualified. 880 F.2d at 1386. In reaching that
conclusion, we first explained that several of the Archive’s
activities were insufficient to establish news-media status
because they were merely ways of “making information
available to the public.” Id. We nonetheless found the Archive
qualified because it also had “firm” plans to “publish a number
of . . . ‘document sets’” concerning United States foreign and
national security policy. Id. at 1386. The Archive intended “to
obtain the raw materials for its document sets” from FOIA
requests and other sources, “cull those of particular interest,”
and “then supplement the chosen documents with detailed cross-
referenced indices, other finding aids, and a sophisticated
computerized retrieval system.” Id. It would then sell the
document sets to support its work. Id. In this way, we
explained, the Archive would “act, in essence, as a publisher.”
Id. That qualified the Archive as a “representative of the news
media,” we said, in light of our understanding both that
Congress intended us to interpret the term “broadly” and that the
legislature saw an important distinction between “merely . . .
making information available and publishing or otherwise
disseminating that information.” Id. (internal quotation marks
and alterations omitted).

     “Without suggesting that any one of [the Archive’s]
activities [was] either necessary or sufficient for a[n] . . .
organization to be a ‘representative of the news media,’” we
concluded that the Archive was “well within” that category
because it “gathers information from a variety of sources;
exercises a significant degree of editorial discretion in deciding
what documents to use and how to organize them; devises
indices and finding aids; and distributes the resulting work to the
public.” Id. at 1387. We then summarized our view as follows:
                                20

         A representative of the news media is, in essence, 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.

Id.

     In 2007, Congress again amended FOIA, this time to
provide an express statutory definition of the news-media
category. See OPEN Government Act § 3, 121 Stat. at 2525
(codified at 5 U.S.C. § 552(a)(4)(A)(ii)). Striving for a
compromise that would “protect[] internet publications and
freelance journalists” but still “preserve commonsense limits,”
Senator Kyl proposed, and Congress ultimately adopted, an
amendment that incorporated “the definition of media requester
that was announced by the DC Circuit in National Security
Archive,” 153 CONG. REC. 22,945 (2007) (statement of Sen.
Kyl). In relevant part, the amended statute provides:

         In this clause, 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. . . . Examples of news-media entities are
         television or radio stations broadcasting to the public
         at large and publishers of periodicals (but only if such
         entities qualify as disseminators of “news”) who make
         their products available for purchase by or subscription
         by or free distribution to the general public. These
         examples are not all-inclusive. Moreover, as methods
         of news delivery evolve (for example, the adoption of
         the electronic dissemination of newspapers through
                                  21

          telecommunications services), such alternative media
          shall be considered to be news-media entities.

5 U.S.C. § 552(a)(4)(A)(ii) (emphasis added).9

    The first, operative sentence of the statutory definition,
taken directly from National Security Archive, is readily
severable into five criteria that a requester must satisfy to
qualify as a “representative of the news media.” A requester
must: (1) gather information of potential interest (2) to a
segment of the public; (3) use its editorial skills to turn the raw
materials into a distinct work; and (4) distribute that work (5) to
an audience. See 5 U.S.C. § 552(a)(4)(A)(ii). In addition, the
news-media fee waiver applies only to records that “are not
sought for commercial use.” Id. § 552(a)(4)(A)(ii)(II).

                                  B

      The district court found that Action satisfied the first two
criteria because its first and second requests sought to gather
information of potential interest to segments of the public: the
first request, regarding the FTC’s product-endorsement guides,
would be of interest to “social media authors” and bloggers; and
the second request, regarding fee-waiver denials, would be of
interest to those who apply for such waivers. Cause of Action,
961 F. Supp. 2d at 162. The FTC does not dispute that finding.


     9
      The portion of the statutory text that is not italicized derives
from the 1987 OMB Guidelines. See 52 Fed. Reg. at 10,015. OMB
has not issued any new guidelines since the 2007 OPEN Government
Act. The portion of the text omitted by the ellipsis states: “In this
clause, the term ‘news’ means information that is about current events
or that would be of current interest to the public.” Neither the FTC
nor the court relied on this sentence in denying Action “representative
of the news media” status.
                                 22

Nor do we. We do, however, want to sound a note of caution
regarding an assumption underlying the court’s analysis.

     That analysis appears to require that each FOIA request be
for information that is of potential interest to a segment of the
public. Such a case-by-case approach is correct for the public-
interest waiver test, which requires that the “disclosure of the
[requested] information” be in the public interest. 5 U.S.C.
§ 552(a)(4)(A)(iii). But the news-media waiver, by contrast,
focuses on the nature of the requester, not its request. The
provision requires that the request be “made by” a representative
of the news media. Id. § 552(a)(4)(A)(ii)(II). A newspaper
reporter, for example, is a representative of the news media
regardless of how much interest there is in the story for which
he or she is requesting information.10

     So, too, for Action. If it satisfies the five criteria as a
general matter, it does not matter whether any of the individual
FOIA requests does so. This does not mean that the specific
requests are irrelevant. For example, showing that those
requests are of potential interest to a segment of the public is one
way of showing that the entity satisfies the first two criteria for
news-media status. Indeed, it may be the best way to satisfy
those criteria for a new entity that lacks a track record or that
employs FOIA requests as its principal means of gathering
information -- both of which appear to describe the appellant in
this case. But the statute’s focus on requesters, rather than
requests, does mean that evidence of Action’s news-media status



    10
       There is a caveat: If a news-media entity makes the request in
its corporate rather than journalistic capacity, the request does not
qualify for a fee waiver because it founders on the additional
requirement that the records not be “sought for commercial use.” Id.
§ 552(a)(4)(A)(ii)(II); see Nat’l Sec. Archive, 880 F.2d at 1387.
                                 23

is not limited to what it establishes about the three FOIA
requests that are the subject of this litigation.

                                 C

     The district court found that Action did not satisfy the third
news-media criterion -- that it uses its editorial skills to turn raw
material into a distinct work -- because it did not “demonstrate
that it would use information from a range of sources to
independently produce a unique product.” Cause of Action, 961
F. Supp. 2d at 162. The court noted that, in National Security
Archive, the requester “was gathering raw material from a wide
variety of sources in addition to the FOIA requests at issue in
order to create ‘document sets’ on specific topics.” Id. (citing
Nat’l Sec. Archive, 880 F.3d at 1386). Action is not like the
Archive, the court said, because it “did not indicate [1] any
distinct work it planned to create based on the requested
information or [2] that it would use any information beyond that
obtained in the FOIA requests to create any unique product.” Id.

     1. We are not sure that we understand the first point in the
preceding sentence because, as noted in Part III.B.2 above, the
district court acknowledged that Action did in fact indicate at
least one distinct work that it planned to create: “a report
describing how the FTC grants public interest fee waivers.”
Cause of Action, 961 F. Supp. 2d at 159; see Action Letter of
4/4/2012 at 6 (App. 181). It may be that the court disregarded
that report (and a second planned report concerning the FTC’s
product-endorsement guides) because Action did not specify it
until it filed supplemental materials in support of its third FOIA
request. As we said in Part II, however, those supplemental
materials are part of the administrative record and must be
examined on remand.
                               24

     We also note that the district court did not consider the
possibility, which the FTC resisted, that a news-media entity
could create a “distinct work” by commenting to other outlets
about documents it obtains under FOIA. At oral argument,
however, the FTC conceded that editorial skill could be
manifested in a distinct work of that kind. Indeed, it recognized
that, if an entity (such as Action) issues substantive press
releases concerning the documents it uncovers, or even if it
simply provides editorial comments on those documents in
interviews with newspapers, such a gloss on the underlying
materials could satisfy this element of the definition. See Oral
Arg. Recording 56:57-57:28.

     We agree. A substantive press release or editorial comment
can be a distinct work based on the underlying material, just as
a newspaper article about the same documents would be -- and
its composition can involve “a significant degree of editorial
discretion,” Nat’l Sec. Archive, 880 F.2d at 1387. Although we
agree with the district court that Action’s first application for
news-media status was too conclusory in explaining the kind of
works it would produce and disseminate, see Action Letter of
9/26/2011 at 1 (App. 26); Rossotti, 326 F.3d at 1312 (holding
that fee-waiver applications must be “based on more than
conclusory allegations” (internal quotation marks omitted)), the
materials supporting Action’s third request cite a large number
of articles and releases. And as we have said, they also include
descriptions of particular public reports that Action planned to
write. See Cause of Action, 961 F. Supp. 2d at 162 n.6. Those
materials are part of the administrative record and will be before
the district court on remand.

     2. The court’s second point -- that Action failed to indicate
it would use any information beyond that obtained in the FOIA
requests -- does not bear on the statutory qualifications for a
news-media waiver. The statute does not require that a
                                25

requester gathers information “from a range of sources” or a
“wide variety of sources,” Cause of Action, 961 F. Supp. 2d at
162. It requires only that the requester “gathers information.” 5
U.S.C. § 552(a)(4)(A)(ii). As we explained above, nothing in
principle prevents a journalist from producing “distinct work”
that is based exclusively on documents obtained through FOIA.

     The district court was correct that, in National Security
Archive, we observed that the requester’s activities included
“gather[ing] information from a variety of sources.” 880 F.2d
at 1387. But we also said we were not “suggesting that any one
of [the Archive’s] activities is either necessary or sufficient” for
an entity to qualify as a representative of the news media. Id.
And our summary description of such an entity, which Congress
enacted as the statutory definition in 2007, made no mention of
that factor. See OPEN Government Act § 3, 121 Stat. at 2525
(codified at 5 U.S.C. § 552(a)(4)(A)(ii)). Accordingly, there are
no grounds for finding it necessary to news-media status.

                                 D

      The district court also found that Action failed to satisfy a
combination of the fourth and fifth criteria -- that it “distributes
[its] work to an audience.” 5 U.S.C. § 552(a)(4)(A)(ii). To
satisfy those criteria, the court said, a requester must do two
things: It “[1] must demonstrate that it has the intent and ability
to disseminate the requested information to the public rather
than merely make it available; [and 2] must also demonstrate
that its operational activities are especially organized around
doing so.” Cause of Action, 961 F. Supp. 2d at 162. In context,
those two requirements impose a greater burden than the statute
demands.

    1. Before considering the way in which the district court
applied its first requirement to Action, we note two concerns
                               26

about its verbal formulation. First, by focusing on Action’s
intent and ability to disseminate “the requested information”
rather than information in general, this formulation again looks
to the nature of the request rather than of the requester. As we
noted above, however, the news-media provision focuses on the
latter.

     Second, the parties and amici skirmish over the court’s
suggestion that a qualifying requester must disseminate
information “rather than merely make it available.” Their
disagreement appears to be more semantic than substantive. On
the one hand, the court is right that merely making information
available is not the same as distributing it. In National Security
Archive, for example, we suggested that it would not have been
enough for the Archive to collect its document sets in its
“private research institute and library,” 880 F.2d at 1386, even
though they would be “available for public use” there, id. at
1383. On the other hand, the amici are right that “The New York
Times [and] The Washington Post” are news media, even “when
publishing something only on their websites.” Br. of Amici
Reporters Comm. for Freedom of the Press, et al. 15.

     As the district court implicitly recognized, see generally
Cause of Action, 961 F. Supp. 2d at 163, posting content to a
public website can qualify as a means of distributing it --
notwithstanding that readers have to affirmatively access the
content, rather than have it delivered to their doorsteps or
beamed into their homes unbidden. National Security Archive
understood distribution in terms of “the kind of initiative we
associate with publishing or otherwise disseminating”
information. 880 F.2d at 1386 (internal quotation marks
omitted). But our understanding of that kind of initiative is
                                 27

naturally somewhat different today than it was in 1989,11 and the
statute requires us to take that into account. See 5 U.S.C.
§ 552(a)(4)(A)(ii) (instructing that, “as methods of news
delivery evolve (for example, the adoption of the electronic
dissemination of newspapers through telecommunications
services), such alternative media shall be considered to be
news-media entities”).12

     2. Even with the recognition that online dissemination can
qualify as a means of distribution, the district court found
Action’s submissions insufficient to show it distributes its work
to an audience because it “has not estimated how many people

    11
       We decided National Security Archive only months after Tim
Berners-Lee submitted his grant proposal for what would become the
World Wide Web. See Larry Greenemeier, Remembering the Day the
World Wide Web Was Born, SCIENTIFIC AMERICAN, Mar. 12, 2009,
http://www.scientificamerican.com/article/day-the-web-was-born.
    12
      See also 153 CONG. REC. 22,944 (2007) (statement of Sen.
Leahy, cosponsor of the OPEN Government Act) (stating that the “bill
ensures that federal agencies will not automatically exclude Internet
blogs and other Web-based forms of media”); id. at 22,947 (statement
of Sen. Cornyn, another cosponsor) (stating that the bill “grants the
same privileged FOIA fee status currently enjoyed by traditional
media outlets to bloggers and others who publish reports on the
Internet”).

     In 2012, 46% of Americans reported that they obtained news
online or on a mobile device at least three days a week; that number
was 4% in 1996. Compare Pew Research Center for People and the
Press, In Changing News Landscape, Even Television Is Vulnerable
14-15 (2012), http://www.people-press.org/files/legacy-pdf/2012%
20News%20Consumption%20Report.pdf, with Pew Research Center
for People and the Press, One-in-Ten Voters Online for Campaign ‘96:
News Attracts Most Internet Users 15 (1996), http://www.people-
press.org/files/legacy-pdf/117.pdf.
                                 28

view its website or social media, nor has it indicated whether its
media contacts would write about the requested information.”
Cause of Action, 961 F. Supp. 2d at 163. In addition, the court
said, Action’s newsletter “did not even exist until after it made
its first FOIA request, and had only been published for a month
when it filed its second request” -- unlike a newsletter analyzed
in an earlier case, which had been published for eight years and
reached 15,000 readers. Id. (citing Elec. Privacy Info. Ctr. v.
Dep’t of Def., 241 F. Supp. 2d 5, 12-13 (D.D.C. 2003)).13

     There is no doubt that the requirement that a requester
distribute its work to “an audience” contemplates that the work
is distributed to more than a single person.14 But beyond
requiring that a person or entity have readers (or listeners or
viewers), the statute does not specify what size the audience
must be. Indeed, in Tax Analysts v. Department of Justice, we
said that the publisher of a weekly tax magazine was “certainly”
a news media entity under National Security Archive, holding
that “[t]he fact that [its] readership is relatively small . . . is
irrelevant.” 965 F.2d 1092, 1095 (D.C. Cir. 1992).

     Nor is it disqualifying that Action’s newsletter did not exist
at the time it made its first FOIA request. It is true that the
statute uses present-tense verbs -- “gathers,” “uses,” and
“distributes” -- that characterize a present state of being, not just

     13
       The court acknowledged that Action provided more information
in an April 2012 letter to the FTC, but declined to examine it because
it was submitted in reference to Action’s third FOIA request, which
the court had found to be moot. Cause of Action, 961 F. Supp. 2d at
162 n.6.
     14
      But see MANFRED PFISTER, THE THEORY AND ANALYSIS OF
DRAMA 36 (1993) (noting that “Mad King” Ludwig II was known to
arrange “performances of Wagner operas with himself as an audience
of one”).
                                29

a set of aspirations. 5 U.S.C. § 552(a)(4)(A)(ii). But this does
not mean that a new news-media venture cannot qualify as a
“representative of the news media” until it has a track record.
Although a bare statement of intent is not enough to qualify,
firm plans can be. In National Security Archive, for example,
we approved the Archive’s news-media status based on its “firm
intention,” reflected in a grant proposal and other submissions
to the agency, to produce and distribute the document sets it
described. 880 F.2d at 1386. The 1987 OMB Guidelines
likewise recognized that “a newly established newspaper” could
qualify for news-media status “by demonstrating that it had held
itself out for subscription and had in fact enrolled subscribers.”
52 Fed. Reg. at 10,015. Against this backdrop, there is no
indication that Congress meant to make the lack of a prior
publication record disqualifying when it enacted the statutory
definition in 2007.

     The news-media provision requires a fact-based
determination of whether a particular requester’s description of
its past record, current operations, and future plans jointly
suffice to qualify it as a representative of the news media. For
a requester that serves (or plans to serve) the public through
multiple outlets -- here, newsletters, press releases, press
contacts, a website, and planned reports -- those must be
considered in combination. An entity with an extensive record
will ordinarily qualify with only a thin recital of its plans (or
perhaps none at all). Conversely, an entity with little or no
historical record of distributing its work (like the National
Security Archive) may make up for that absence by concretely
setting out its plans to do so.

     3. Finally, the district court also found that Action failed to
qualify for a news-media waiver because it did not show that its
“activities are organized especially around dissemination” of its
work to an audience. Cause of Action, 961 F. Supp. 2d at 163.
                                30

A requester that “performs its activities to aid in government
accountability,” the court said, is “more like a middleman for
dissemination to the media” than a representative of the news
media. Id. at 164.

     The district court’s embrace of the “organized especially
around dissemination” requirement reflected the FTC’s then-
operative regulation, which defined a “representative of the
news media” as “any person actively gathering news for an
entity that is organized and operated to publish or broadcast
news to the public.” 16 C.F.R. § 4.8(b)(2) (2013). That
language, in turn, was derived from the definition in the 1987
OMB Guidelines. See OMB Guidelines, 52 Fed. Reg. at 10,018
(limiting the news-media category to a “person actively
gathering news for an entity that is organized and operated to
publish or broadcast” news).

     Congress, however, omitted the “organized and operated”
language when it enacted the statutory definition in 2007.
Congress’ text instead tracked this court’s definition in National
Security Archive, which did not include such a requirement.
Compare 5 U.S.C. § 552(a)(4)(A)(ii), with Nat’l Sec. Archive,
880 F.2d at 1387. Perhaps recognizing that difference -- albeit
after Action filed this lawsuit -- the FTC has recently revised its
regulation to omit the “organized and operated” requirement and
track the statutory language. See 16 C.F.R. § 4.8(b)(2)(iii)
(2014); see also 78 Fed. Reg. 13,570, 13,572 (2013)
(“propos[ing] to amend the definitions for ‘representative of the
news media’ to implement the definition codified . . . by the
2007 FOIA Amendments”); 79 Fed. Reg. 15,680 (2014)
(adopting the proposed amendment). Accordingly, there is no
                                  31

basis for adding an “organized and operated” requirement to the
statutory definition.15

     We also disagree with the suggestion that a public interest
advocacy organization cannot satisfy the statute’s distribution
criterion because it is “more like a middleman for dissemination
to the media than a representative of the media itself,” Cause of
Action, 961 F. Supp. 2d at 164; see id. at 157. It is true that
“middlemen” that merely disseminate the documents they
receive to the media (or others) do not qualify. See Nat’l Sec.
Archive, 880 F.2d at 1387.16 That is because what is distributed
must independently qualify as “distinct work” produced through
the exercise of “editorial skills.” Id.; see supra Part IV.C. But
assuming that these other criteria are satisfied, there is no
indication that Congress meant to distinguish between those who
reach their ultimate audiences directly and those who partner
with others to do so, as some recognized journalistic enterprises


     15
       Although we reject the “organized and operated” requirement,
we agree that a requester seeking news-media status generally must
demonstrate more than an intention to engage in an isolated episode
of journalistic activity. As we have explained, the news-media
provision covers a certain kind of person or entity, not a certain kind
of request, and we therefore doubt that a requester could qualify based
on even a firm plan to undertake journalistic activity on a purely one-
off basis. See Nat’l Sec. Archive, 880 F.2d at 1386 (citing Senator
Leahy’s statement that “any person or organization which regularly
publishes or disseminates information to the public . . . should qualify
for waivers as a ‘representative of the news media’” (emphasis
added)).
     16
       Relying on floor statements by Senator Hatch, National Security
Archive described the disfavored “middlemen” category as comprising
“‘intermediar[ies]’ or ‘information vendors [or] data brokers’ [] that
request documents for use by others.” 880 F.2d at 1387 (quoting 132
CONG. REC. S14,040 (Sept 27. 1986); id. at S16,505 (Oct. 15, 1986)).
                                  32

do.17 Indeed, the government now accepts that an entity may
“distribute[] [its] work” by issuing press releases to media
outlets in order to reach the public indirectly. See Oral Arg.
Recording 1:00:10-1:02:43.

                                  V

     We conclude that Action’s applications for fee waivers in
connection with its outstanding FOIA requests are not moot, and
that its entitlement to a public-interest or news-media fee waiver
must be reconsidered in light of the full agency record and the
clarifications set out above. We therefore remand this case for
further proceedings consistent with this opinion.

                                                          So ordered.




     17
       See, e.g., ProPublica: Journalism in the Public Interest, About
Us, http://www.propublica.org/about (“Many of our ‘deep dive’
stories are offered exclusively to a traditional news organization, free
of charge, for publication or broadcast.”).
