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PROJECT v. DEPARTMENT OF THE NAVY

April 7, 1989

PROJECT ON MILITARY PROCUREMENT, Plaintiff,
v.
DEPARTMENT OF THE NAVY, Defendant


Stanley Sporkin, United States District Judge.


The opinion of the court was delivered by: SPORKIN

STANLEY SPORKIN, UNITED STATES DISTRICT JUDGE.

 The plaintiff, Project on Military Procurement ("PMP"), is an organization sponsored by the Fund for Constitutional Government, a non-profit organization. PMP's goal is to make the public, press and Congress aware of waste and fraud in the defense budget as well as to reform the defense procurement system. To achieve this objective, PMP regularly conducts investigations and disseminates information to the public, press and Congress by means of issuing press releases and publishing books and news articles.

 Currently, PMP is investigating the United States Department of the Navy's MK-46 Torpedo Program. In the course of that investigation, PMP has attempted to gain certain information through a Freedom of Information Act ("FOIA") request. At issue in this case is whether PMP is entitled to a waiver of fees for documents requested from defendant, the Department of the Navy, pursuant to that FOIA request. See 5 U.S.C. section 552(a)(4)(A)(iii). In the alternative, plaintiff claims it is entitled to status as "a representative of the news media." See id. sec. 552(a)(4)(A)(ii)(II).

 Plaintiff and defendant have filed cross motions for summary judgment. The issues before the Court have been fully briefed, and a hearing was held on February 17, 1989. I now am prepared to rule on these motions.

 I. STANDARD ON MOTION FOR SUMMARY JUDGMENT

 To prevail on a motion for summary judgment the moving party must demonstrate that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). In this case, the essential, dispositive facts are undisputed. See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 2552-53, 91 L. Ed. 2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 2511-12, 91 L. Ed. 2d 202 (1986).

 II. FACTS

 A. THE MK-46 TORPEDO CONTRACTS

 The FOIA requests at the center of this case seek disclosure of fiscal data sheets and all modifications related to Navy contracts No. N00024-83-C-6126 and No. N00024-85-C-6080. These contracts concern the Navy's foreign military sales of MK-46 torpedoes to Canada and Turkey. The MK-46 torpedoes were supplied via a sub-contract with Honeywell, Inc. The Arms Export Control Act, 22 U.S.C. sec. 2751 et seq. (1982 & Supp. IV 1986), and relevant Department of Defense ("DoD") regulations permit foreign military sales provided "DoD [does] not make a profit or incur a loss." DoD Inspector General, Report on the Audit of the MK-46 Torpedo Program (Report No. 88-068), Jan. 11, 1988 at 3 ("Inspector General's Report"); see 22 U.S.C. sec. 2762.

 The DoD Inspector General has determined that the MK-46 contracts at issue in this case contained inflated contract prices in violation of the Arms Export Control Act. As a result of the inflated prices, Honeywell received a surplus payment that was used to off-set the Navy's own Honeywell contract costs. *fn1"

 The facts of this affair first came to public attention in October of 1986. The incident was the subject of numerous news accounts. The primary source for these reports was a press release issued by the plaintiff, Project on Military Procurement. *fn2" Two years after the initial media attention, the Department of Defense's Inspector General issued his report confirming that Canada and Turkey had in fact been overcharged in connection with their purchases of MK-46 Torpedoes. See Inspector General's Report at 3, 6-7, 9.

 B. PLAINTIFF'S FOIA REQUESTS

 By letter dated December 10, 1986, plaintiff filed a FOIA request for information related to MK-46 torpedo contract No. N00024-83-C-6126. *fn3" On July 1, 1987, plaintiff expanded its request to include contract No. N00024-85-C-6080. *fn4" In addition, plaintiff requested a fee waiver claiming the information was sought "in the public interest." See 5 U.S.C. sec. 552(a)(4)(A)(iii). In the alternative, plaintiff requested treatment as a "representative of the news media." Id. sec. 552(a)(4)(A)(ii)(II). *fn5"

 On April 22, 1988, defendant denied both the fee waiver and plaintiff's status as a "representative of the news media." *fn6" Plaintiff appealed this determination to the General Counsel of the Navy. The General Counsel upheld the denial. See Plaintiff's Exhibit 15, Letter of General Counsel Reviewing FOIA Request ("General Counsel's ...


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