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.