much of the requested information is likely to be redacted or exempt from disclosure. Defendant is attempting to rely upon contemplated withholdings, pursuant to FOIA exemptions, to defeat plaintiff's request for a fee waiver. See 5 U.S.C. sec. 552(b). Defendant, however, overlooks the fact that it has not yet reached a decision to withhold documents pursuant to available FOIA exemptions.
Moreover, under the FOIA an agency has the burden of justifying nondisclosure. It must sustain that burden through the submission of affidavits or testimony which identify and explain why the claimed exemptions are available. See King v. U.S. Department of Justice, 265 U.S. App. D.C. 62, 830 F.2d 210, 217 (D.C. Cir. 1987); Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820, 826-28 (D.C. Cir. 1973), cert. denied, 415 U.S. 977, 39 L. Ed. 2d 873, 94 S. Ct. 1564 (1974). Thus far defendant has failed to make such a showing. Neither affidavits nor testimony have been submitted to support defendant's contemplated withholdings. As a result, there simply is no record on which I could find that the documents defendant contemplates withholding are properly exempt from disclosure.
Allowing the case to proceed as defendant urges would invert the burden of proof and foist upon plaintiff a burden that is not provided under the FOIA. In a fee waiver case, the plaintiff bears the initial burden of demonstrating it has satisfied the public interest analysis; in challenging a decision to withhold documents, the burden is upon the defendant to justify its nondisclosure. See 5 U.S.C. sec. 552(a)(4)(B). Compare Coastal States Gas Corp. v. Dept. of Energy, 199 U.S. App. D.C. 272, 617 F.2d 854, 868 (D.C.Cir. 1980) (burden on the government agency exerting exemption); with Larson, 843 F.2d at 1483 (initial burden of plaintiff).
Plaintiff is prepared to demonstrate that it satisfies the public interest analysis and is entitled to a fee waiver. However, defendant seems to suggest that plaintiff, in order to prevail on its fee waiver request, must also demonstrate that defendant's contemplated withholdings are not validly claimed. Putting aside the fact that withholdings do not yet exist in this case, I cannot understand how the defendant can argue that plaintiff must bear the burden of demonstrating the invalidity of a decision to withhold documents. The law is clear; the burden is on the defendant to justify its withholdings.
In addition, defendant urges this Court to find that the contemplated withholdings present a sufficient basis to deny a fee waiver. In effect, defendant's position is that all an agency needs to do to defeat a fee waiver is proffer that the requested documents fall within various FOIA exemptions. This cannot be so. Such a position clearly places the cart before the horse requiring the Court to pass upon the validity of withholding documents before the agency decides the documents are to be withheld.
By proceeding in this manner the defendant is denying plaintiff an opportunity to challenge, before the agency and in court, an actual decision to withhold specific information. As defendant correctly argued, this Court's review in a fee waiver challenge is "limited to the record before the agency." 5 U.S.C. § 552(a)(4)(A)(vii). The defendant indicates that thus far it has only engaged in a cursory examination of the requested documents. Thus, the record of defendant's review and decision to withhold certain of the requested documents is nonexistent. Under these circumstances, I can only wonder at how the defendant expects this Court to properly review the exemptions defendant claims it may ultimately assert.
Defendant cannot be permitted to deny plaintiff a fee waiver because, in theory, defendant has the ability to raise certain FOIA exemptions. It is unfair and contrary to the spirit of the FOIA to deny a financially limited requester, such as PMP, a fee waiver based on an agency determination that is speculative and unreviewable. Clearly, permitting such a result would undermine the very rationale of the fee waiver provisions and this Court's ability to review FOIA determinations made by the defendant. See Ettlinger v. FBI, 596 F. Supp. 867, 872-74 (D.Mass. 1984).
C. REPRESENTATIVE OF THE MEDIA
There is no need to address the issue of whether plaintiff qualifies as a "representative of the media." I have concluded that plaintiff is entitled to a fee waiver. Thus, nothing further would be gained by finding that plaintiff is also entitled to a limit on costs as a "representative of the media."
Based on the foregoing, I have determined that plaintiff has adequately demonstrated that its FOIA requests are in the public interest and, therefore, plaintiff is entitled to a fee waiver.
My decision on this matter is further supported by the Department of Defense's own directives. The DoD directives clearly state that "when the element of doubt as to whether to charge or waive the fee cannot be clearly resolved, [the Department] should rule in favor of the requester." DoD Directive 5400.7-r, sec. 6-103(d); see also Arms Export Control Act, 22 U.S.C. sec. 2761(f) ("any contracts entered into between the United States and a foreign country under the authority of [relevant sections of the Act] shall be prepared in a manner which will permit them to be made available for public inspection to the fullest extent possible consistent with the national security of the United States.").
Accordingly, plaintiff's motion for summary judgment shall be granted and defendant's motion for summary judgment shall be denied.
An appropriate order accompanies this opinion.