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LARSON v. CIA

July 28, 1987

David Paul Larson, Plaintiff,
v.
Central Intelligence Agency, Defendant



The opinion of the court was delivered by: HARRIS

 STANLEY S. HARRIS, United States District Judge

 This matter is before the Court on defendant's motion for summary judgment. On consideration of the parties' submissions and the entire record, the Court concludes that there is no genuine issue of material fact and that defendant is entitled to judgment as a matter of law. Accordingly, defendant's motion for summary judgment is granted.

 Background

 On November 17, 1985, plaintiff David Paul Larson, then incarcerated at the United States Penitentiary in Terre Haute, Indiana, wrote to the Central Intelligence Agency (CIA) requesting a copy of all files on Vitaliy Yurchenko, a Soviet KGB agent who defected to the United States and then "redefected" to the Soviet Union shortly thereafter. In this initial correspondence, Larson agreed to pay all fees for copying of such files. The CIA responded on December 2, 1985, by forwarding to Larson a three-page biography of Yurchenko, along with a fee schedule for search fees. In the CIA's accompanying letter, the agency informed Larson that it must receive his commitment to pay search fees prior to processing his request.

 By letter dated December 23, 1985, Larson requested a waiver of fees "due to the wide spread [ sic ] publicity of Yurchenko and his supposed re-defection back to the Soviet Union." Larson further stated that Yurchenko's allegations of abuse in the hands of the CIA were "not only important to me; but has [ sic ] instigated an investigation by the U.S. Senate into the handling of Yurchenko by the CIA." On January 15, 1986, Lee Strickland, Information and Privacy Coordinator for the CIA, informed Larson by letter that he was denying the fee waiver request because he had concluded that the information Larson sought "would not primarily result in substantive benefit to the public."

 On January 27, 1986, Larson filed suit in this Court, claiming a right to access to the requested information and stating his intent to send copies of all released documents to "a Major Newspaper Co. so the Public will have access to said information." By letter dated February 6, 1986, Strickland wrote to Larson confirming receipt of the complaint. Strickland stated that the CIA was interpreting Larson's complaint as an administrative appeal to the denial of the fee waiver request, and was forwarding the complaint to the Executive Secretary of the CIA Information Review Committee.

 Following the filing of the CIA's answer on April 10, 1986, Benedetto DeFelice, acting Executive Secretary of the Information Review Committee, wrote to Larson on May 14, 1986, advising him of the CIA's final denial of his fee waiver request.

 In plaintiff's "opposition to defendant's answer," filed July 21, 1986, Larson asserted that he had "access to a major newspaper who is interested in the released material to be published" and attached a letter from Washington Post Executive Editor Benjamin C. Bradlee. The letter was dated July 9, 1986, and stated only: "I certainly would be interested in anything you get from the CIA on Vitaly [ sic ] Yurchenko."

 Discussion

 The Freedom of Information Act, 5 U.S.C. § 552, governs public access to the records of government agencies. The Act provided, at the time the CIA considered Larson's fee waiver request, that documents were to be furnished without charge or at a reduced charge "where the agency determines that waiver or reduction of the fee is in the public interest because furnishing the information can be considered as primarily benefiting the general public." 5 U.S.C. § 552 (a)(4)(A); see also 32 C.F.R. § 1900.25 (a) (CIA regulations governing fees for records services).

 When an agency is determining whether a fee waiver would be "in the public interest," the identity of the requester, his purpose for seeking the information, and the character of the information itself are proper factors for the agency to consider. Eudey v. Central Intelligence Agency, 478 F. Supp. 1175, 1177 (D.D.C. 1979). Accordingly, the CIA fee waiver regulations identify six factors to be considered by the agency: (1) the public or private character of the information sought; (2) the private interest of the requester; (3) the numbers of the public to be benefited; (4) the significance of the benefit to the public; (5) the usefulness of the information to the public; and (6) the quantity of similar or duplicative information already in the public domain. See 32 C.F.R. § 1900.25 (a). *fn1" When read in the context of the statutory language and case law, the agency's six factors reduce to a three-prong inquiry: (1) What is the private interest of the requester? (2) What is the character of the information sought? (3) How substantial is the public benefit to be derived from this particular request? *fn2"

 The second inquiry addresses the character of the information sought. If the information sought is personal to the requester, and does not pertain to issues of public interest, then a fee waiver or reduction should not be granted. See, e.g., Ely v. United States Postal Serv., 243 U.S. App. D.C. 345, 753 F.2d 163 (D.C. Cir.), cert. denied, 471 U.S. 1106, 105 S. Ct. 2338, 85 L. Ed. 2d 854 (1985) (denial of fee waiver request was proper when plaintiff, a prisoner incarcerated in a federal correctional institution, requested copies of all files and ...


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