intent of the statute in that they are too narrow. Plaintiff asserts that the legislative history of the statute reveals Congress's intent to allow for waivers for an entity like plaintiff within the definitions of either an educational institution or a representative of the news media.
In reviewing an agency's interpretation of a statute committed to its administration a court must first look to the legislation. Chevron U.S.A., Inc. v. N.R.D.C., 467 U.S. 837, 842, 104 S. Ct. 2778, 2781, 81 L. Ed. 2d 694 (1984); Common Cause v. Federal Election Commission, 268 U.S. App. D.C. 440, 842 F.2d 436, 439 (1988); National Fuel Gas Supply Corp. v. F.E.R.C., 258 U.S. App. D.C. 374, 811 F.2d 1563, 1569 (1987). If the statute and its legislative history reveal a clear intent, that intent must be adhered to. Id. If, however, they are silent or ambiguous, the agency's construction should be upheld if it is a reasonable one. Id. National Fuel indicates that the agency's interpretation is entitled to some deference where it has exercised congressionally granted authority even if it is not clear that the interpretation rests upon technical expertise. 811 F.2d at 1570. Whatever the amount of deference to which it is entitled, the agency's interpretation must harmonize with the statute's origin and purpose to be considered reasonable. United States v. Vogel Fertilizer Co., 455 U.S. 16, 26, 102 S. Ct. 821, 828, 70 L. Ed. 2d 792 (1982).
Congress did not define the relevant terms in the statute, and it left the task of forming guidelines to the agency. 5 U.S.C. § 552(a)(4)(A)(i). Thus, the language of the statute itself does not resolve the issue here, for depending upon how broadly the language is read, it could support either party's position. Nor does the legislative history of the amendments, which primarily consists of the sponsors' remarks, show a clear intent in plaintiff's favor. If anything, the legislative history reveals a clear congressional decision to deny status waivers to entities like plaintiff.
The remarks of Senator Hatch, a co-sponsor of the Amendments, strongly support the view that Congress did address the issue, and that it did not intend that entities like this plaintiff would obtain a waiver under 5 U.S.C. § 552(a)(4)(A)(ii). See 132 Cong. Rec. S 14038, 14040 (daily ed. September 27, 1986). After noting that the fee waiver provision was taken from H.R. 6414, a bill introduced in the 98th Congress, Sen. Hatch stated that "we are removing the language ' nonprofit group that intends to make the information available ' to clarify that organizations seeking to establish private repositories of public records shall not qualify for a waiver."
Id. (emphasis added). This language had been included in the provision which is now found at 5 U.S.C. § 552 (a)(4)(A)(ii)(II). Arguably, the removed language describes plaintiff perfectly, and according to Sen. Hatch, the language was in fact removed to deny a "status" waiver to an entity like plaintiff.
While Sen. Hatch appears to have been in the minority among the sponsors in generally asserting a narrower reading of the Amendments, he certainly was not advocating the "losing" position in regard to the alteration of H.R. 6414. Compare 132 Cong. Rec. H 9463 (daily ed. October 8, 1986) (remarks of Rep. English) ("I am not in complete agreement with the Senate changes to [H.R. 6414]."). Given the deletion of express language that would have applied to plaintiff, the Court cannot conclude that Congress clearly intended to include an entity like plaintiff in the remaining categories in 5 U.S.C. § 552(a)(4)(A)(ii)(II).
Since the Court cannot conclude that Congress clearly intended that an entity like plaintiff would be entitled to a waiver based upon its status, the Court should uphold DoD's decision not to consider plaintiff to be an educational institution or a representative of the news media if that decision is based upon a reasonable interpretation of the Amendments.
Plaintiff asserts that it is unreasonable to limit educational institutions under the Amendments to schools with programs of scholarly research. It argues that its purpose of educating the public by disseminating government information is sufficient to qualify it as an educational institution. It also contends that the Fund for Peace's tax-exempt status as an educational institution shows that plaintiff should have this status for the purpose of fee waivers.
First of all the fact that the I.R.S. treats the Fund for Peace as an educational institution does not mean that DoD is bound to apply that determination to plaintiff. Secondly, DoD adopted a neutral definition of "educational institution," which although narrow, is hardly irrational when applied to this plaintiff. Apparently, this definition is based upon the definition adopted by the Department of Education for the purposes of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. See 34 C.F.R. § 106.2(j). Neither the language of the statute nor the legislative history indicates that every entity which educates the public by making information available should be treated as an educational institution. In fact, the legislative history indicates that libraries and other repositories of documents are to be treated separately from educational institutions. See supra pp. 20-21 and infra pp. 21-22.
Plaintiff argues that the legislative history of the Amendments shows a clear intent to treat disseminators of information as representatives of the news media. For instance, plaintiff cites to the remarks of Sen Leahy, 132 Cong. Rec. S at 14298, and to the joint analysis of Reps. English and Kindness, 132 Cong. Rec. at H 9464, which state that "the bill provides the most favorable fee provision for those in the information dissemination business . . . ."
Even if the legislative history cited by plaintiff stated the unequivocal intent of Congress, cf. 132 Cong. Rec. S 16505 (daily ed. October 15, 1986) (remarks of Sen. Hatch), it would not necessarily preclude DoD's interpretation, which requires the regular publication or broadcast of news. See 32 C.F.R. § 286.33(e)(7)(i). The remarks cited by plaintiff, even when they refer to non-traditional media, still seem to contemplate some sort of regular publication, broadcast, or other transmission of news. Plaintiff's function does not appear to be "similar to that of newspapers and broadcasters." Joint Analysis of Reps. English and Kindness at H 9464.
Perhaps the strongest argument in favor of upholding DoD's denial of a waiver to plaintiff is that Congress considered language that would directly address an entity like plaintiff, but it chose to delete that language. See supra pp. 20-21; see also McClellan Ecological Seepage Situation v. Carlucci, 835 F.2d 1282, 1284 (9th Cir. 1987) (public interest groups are not entitled to a waiver based upon status). In this context it would be hard to consider DoD's interpretation unreasonable. Apparently, plaintiff is trying to obtain a status waiver through the judicial process after entities like it were denied such waivers in the legislative process.
It is not unreasonable to conclude that Congress intended that an entity like plaintiff would be entitled to a waiver or reduction of fees only under the public interest exception at 5 U.S.C. § 552(a)(4)(A)(iii). As is noted supra at n.4, Sen. Leahy appeared to assuage Sen. Kerry's concerns regarding waivers for public interest groups, libraries, and other repositories of government information by assuring him that these entities would qualify for liberal waivers or reductions based upon their use of documents which they request. Even plaintiff asserts that Reps. English and Kindness appeared to refer to entities like itself when they stated in their joint analysis that
A request from a public interest group, nonprofit organization, labor union, library, or similar organization, or a request from an individual may not be presumed to be for commercial use unless the nature of the request suggests that the information is being sought solely for a private, profit making purpose.
Joint Analysis of Reps. English and Kindness at H 9463 (as corrected by statement of Rep. English at 132 Cong. Rec. E 3596 (daily ed. October 10, 1986)), quoted in Plaintiff's Second Motion for Summary Judgment at 26. Although educational institutions and media representatives must also pass a non-commercial use test, Reps. English and Kindness appeared to address these remarks to groups in the "other" category under 5 U.S.C. § 552(a)(4)(A)(ii)(III). Those entities are not entitled to waivers of search costs based upon their status.
Even if the de novo review standard allowed the Court to disregard the DoD's regulation, 32 C.F.R. § 286.33(e), the agency's determination would be upheld because it is not only a reasonable one, but it is also the one Congress most likely intended.
DoD asserts that even if plaintiff is an educational institution or a representative of the news media, DoD cannot grant it a blanket fee waiver because it cannot determine that plaintiff is not commercial user. See Letter from William McDonald to David L. Sobel, dated November 13, 1987, at 5-6, attached as exhibit C to Plaintiff's Second Motion for Summary Judgment. DoD maintains that plaintiff's intent to sell sets of government documents to libraries prevents a determination that plaintiff is not a commercial organization. Id.
The Court need not decide whether plaintiff might be a commercial user in the future, since DoD has placed plaintiff in the "other" category, and it is not treating plaintiff as a commercial user. This issue is not ripe for adjudication, and a decision based upon events which might occur would be advisory. Here, the Court's interests in avoiding unnecessary adjudication and in deciding issues in a concrete setting outweigh any interests plaintiff might have in challenging DoD's position at this time.
In view of the above, the Court concludes that plaintiff's second motion for summary judgment should be denied, and that DoD's motion for summary judgment should be granted. DoD's determination that plaintiff is neither an educational institution nor a representative of the news media for the purpose of obtaining a waiver of fees under the FOIA should be upheld. A separate Order consistent with this Memorandum has been issued.
ORDER - June 15, 1988; June 16, 1988, Filed
After carefully considering plaintiff's second motion for summary judgment, defendant's motion for summary judgment, the opposition to those motions, and the entire record in this case, and for the reasons set forth in an accompanying Memorandum, it is hereby
ORDERED that plaintiff's second motion for summary judgment is denied; and it is further
ORDERED that defendant's motion for summary judgment is granted; and it is further
ORDERED that defendant's determination that plaintiff is not entitled to a fee waiver under 5 U.S.C. § 552(a)(4)(A)(ii)(II) is affirmed; and it is further
ORDERED that this case is dismissed.