With respect to plaintiffs' motion for a waiver of search fees, FOIA permits agencies to furnish records without charge where the agency determines that waiver of the fee is in the public interest "because furnishing the information can be considered as primarily benefitting the general public." 5 U.S.C. § 552(a)(4)(A). An agency determination not to waive search fees should be disturbed by a reviewing court only if that determination is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.
On October 15, 1982, the Office of Information and Privacy denied plaintiffs' requests for a waiver of search fees. This denial is based upon two principal justifications. First, the agency has made the assessment that the likelihood of any possible connection between the information sought and the assassination is remote and theoretical. Second, enormous amounts of public funds have been expended in investigating the assassination and significant amounts of information have already been made available. For that reason, the agency has determined that the public benefit from disclosure of the additional material sought by plaintiffs is remote. The agency has also stated that it would reconsider the denial of search and copying fees on the plaintiffs' requests, "if, on the basis of documents received, the Agency concludes, independently or with the assistance of the plaintiffs, that release of the documents would benefit the general public."
The plaintiffs have failed to show that the agency's decision was arbitrary, capricious, or an abuse of discretion. The agency has reviewed the plaintiffs' requests and evaluated the potential public benefit from disclosure of this information. Its conclusion that plaintiffs' search is unlikely to result in significant benefit to the public interest is not arbitrary or capricious. The further caveat that, should a public benefit be forthcoming, the agency would reconsider, makes it clear that the agency has evaluated the competing interests and reached a reasonable accommodation. Plaintiffs are intent upon testing their own somewhat unique theory of the Kennedy assassination. While they have the right to undertake such an investigation, they have not established that they have the right to a waiver of search fees or that the agency's denial of their waiver request was arbitrary or capricious.
For the reasons stated, it is this 11th day of January, 1985
ORDERED that plaintiffs' motion to compel a search of FBI files in the absence of privacy waivers be and it hereby is granted; and it is further
ORDERED that defendant shall file an affidavit with the Court on or before February 25, 1985, detailing either by public affidavit or in camera submission which documents have been identified as responsive to plaintiffs' request, which have been disclosed to plaintiff, and which have been withheld, and on what basis they have been withheld; and it is further
ORDERED that plaintiffs' motion for a waiver of search fees be and it is hereby denied.