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NATIONAL SEC. ARCHIVE v. U.S. DOD

June 15, 1988

National Security Archive, Plaintiff,
v.
U.S. Department of Defense, Defendant



The opinion of the court was delivered by: PENN

 JOHN GARRETT PENN, United States District Judge.

 This case is before the Court on cross-motions for summary judgment. After carefully considering the motions, the opposition to them, the oral arguments of the parties, and the record in this case, 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.

 Plaintiff filed this action under the Freedom of Information Act (the FOIA), 5 U.S.C. § 552 et. seq., claiming that the United States Department of Defense (DoD) wrongfully refused to consider plaintiff as a preferred institution under the FOIA Amendments of 1986 (the Amendments), 5 U.S.C. § 552(a)(4)(A), for the purposes of fee assessments. Plaintiff, which has numerous FOIA requests pending before the DoD, claims that it should be treated as either an educational institution or as a representative of the news media, and that it therefore should have to pay only duplication fees when it seeks documents. Plaintiff also contends that it is not a commercial requester for the purposes of the Amendments.

 DoD contends that the case is not ripe because plaintiff might be entitled to have search and review fees waived if DoD determines pursuant to 5 U.S.C. § 552(a)(4)(A)(iii) that the release of the documents which plaintiff seeks is in the public interest. DoD also contends that its determination that plaintiff is neither an educational institution nor a representative of the news media should be upheld. DoD maintains that its placement of plaintiff in the "other" category of requesters under 5 U.S.C. § 552(a)(4)(A)(ii)(III) is proper.

 I.

 It appears that DoD will not process plaintiff's requests unless plaintiff agrees to incur fees for the search and review of documents. *fn1" Plaintiff will be obligated to pay those fees unless DoD subsequently waives them under the public interest exemption. Thus, DoD would force plaintiff to risk liability for search and review costs before allowing it to seek judicial review of the denial of a waiver based upon status.

 The Court concludes that DoD's denial of a waiver based upon status is sufficient to render this dispute ripe for judicial review since DoD will not process plaintiff's requests without assessing additional fees. There is a concrete legal dispute, and plaintiff's strong interest in the prompt consideration of the allegedly unlawful agency action is not outweighed by any hardship to the agency or by a significant judicial interest in favor of delay. See Payne Enterprises, Inc. v. United States, 267 U.S. App. D.C. 63, 837 F.2d 486, 492-494 (1988). Furthermore, the legislative history of the 1986 Amendments indicates an intent to have disputes over fee waivers determined at an early stage. See 132 Cong. Rec. H 9463 (daily ed. October 8, 1986) (joint analysis of Reps. English and Kindness) ("Agency regulations must include procedures whereby a requester can determine its status for purposes of fee categories . . . at the time the request is made.").

 II.

 Under the Amendments, educational institutions whose purpose is scholarly research, and representatives of the news media are entitled to the waiver of search and review fees if they seek to obtain documents for non-commercial purposes. 5 U.S.C. 552(a)(4)(A)(ii)(II). Congress did not define the terms "educational institution" or "representative of the news media." Instead, it delegated to the agencies the task of promulgating regulations setting forth the procedures and guidelines for determining requests for waivers. 5 U.S.C. § 552(a)(4)(A)(i). The standard of review of the denial of a waiver is de novo, and review is limited to the record that was before the agency. 5 U.S.C. § 552(a)(4)(A)(vii).

 Defendant adopted a regulation which states in relevant part:

 
The term "educational institution" refers to a preschool, a public or private elementary or secondary school, an institution of graduate higher education, an institution of undergraduate higher education, an institution of professional education, and an institution of vocational education, which operates a program or programs of scholarly research. . . .
 
The term "representative of the news media" refers to any person actively gathering news for an entity that is organized and operated to publish or broadcast news to the public. The term "news" means information that is about current events or that would be of current interest to the public. Examples of news media entities include television or radio stations broadcasting to the public at large, and publishers of periodicals (but only in those instances when they can ...

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