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FITZGIBBON v. AGENCY FOR INTL. DEV.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA


November 16, 1989

ALAN L. FITZGIBBON, Plaintiff,
v.
AGENCY FOR INTERNATIONAL DEVELOPMENT, et al., Defendants

The opinion of the court was delivered by: PRATT

MEMORANDUM OPINION

 JOHN H. PRATT, UNITED STATES DISTRICT JUDGE

 Plaintiff brings this action under the Freedom of Information Act, 5 U.S.C. § 552 (1988) ("FOIA" or the "Act"), challenging agency denials of fee waiver requests. *fn1" The only remaining defendants are the Department of Defense ("DOD") and the Department of Justice ("DOJ"). *fn2" Before the Court are the parties' cross-motions for summary judgment. This matter appears to be one of first impression.

 I. Factual Background

 On July 22, 1986, plaintiff made written requests to defendants for a copy of each annual report on their implementation of FOIA submitted since the mid-1970s. *fn3" DOD's initial response was to inform plaintiff that its annual reports were available in its public reading room and that plaintiff could inspect the copies there, or obtain a copy of DOD's Executive Summaries of the reports for $ 31.70, or obtain a copy of the full reports for $ 300. *fn4" By letter dated August 14, 1986, plaintiff requested a waiver of the entire $ 300 duplication fee. Plaintiff based his request on the fact that he was "researching a history of the FOIA and similar legislation abroad to be published in 1988." He stated that his project "fully qualifie[d] for a public interest fee waiver according to the provisions and legislative history of the Act itself and relevant case law."

 DOD denied plaintiff's request for a fee waiver on September 5, 1986. The stated reason for the denial was that the reports, by virtue of their existence in DOD's public reading room, were "in the public domain." Plaintiff's administrative appeal of this decision was denied on October 9, 1986. *fn5" DOD's stated reason was that "as a matter of policy," records available in its public reading room were "not available on a fee waiver basis."

 DOJ responded to plaintiff's July 22, 1986, request by mailing him copies of the annual reports for some of the years but not for others. By letter dated September 3, 1986, plaintiff requested copies of the omitted reports and certain additional information. At this time, plaintiff also requested a fee waiver. He stated that he was "a professional writer" who was "preparing a history of the FOIA and similar legislation abroad to be published in 1988," and that "there [could] be no question that a published study of the FOIA would be in the public interest." *fn6" On August 6, 1987, after the commencement of this action, DOJ denied plaintiff's request for a fee waiver. *fn7" DOJ's letter stated that a waiver was inappropriate "because the documents [were] already in the public domain and release . . . [would] not contribute to the public's understanding of government operations or activities since the public already has the information." The duplication fee for the annual reports is $ 48.

 II. Discussion8

 FOIA mandates de novo review in actions regarding fee waivers. 5 U.S.C. § 552(a)(4)(A)(vii). Courts are limited, however, "to the record before the agency." Id.

 The Act's fee waiver test is two-pronged. One prong requires that the requester make a showing that he does not have a commercial interest in the disclosure of the information sought. See Larson v. CIA, 269 U.S. App. D.C. 153, 843 F.2d 1481, 1483 (D.C. Cir. 1988) (citing McClellan Ecological Seepage Situation v. Carlucci, 835 F.2d 1282, 1285 (9th Cir. 1987)); see also 5 U.S.C. § 552(a)(4)(A)(iii). Concededly, nothing in the record rebuts plaintiff's showing or indicates in any way that plaintiff has a commercial interest in obtaining information about defendants' implementation of the Act. Therefore, plaintiff satisfies this prong of the test. Larson, 843 F.2d at 1483.

 The other prong of the test, which is the source of the parties' dispute, requires that disclosure of the information be "likely to contribute significantly to public understanding of the operations or activities of the government . . . ." 5 U.S.C. § 552(a)(4)(A)(iii); Larson, 843 F.2d at 1483. The requester of a fee waiver bears the initial burden of identifying, with reasonable specificity, the public interest to be served, although, circumstances may clarify the point of the request. See National Treasury Employees Union v. Griffin, 258 U.S. App. D.C. 302, 811 F.2d 644, 647 (D.C. Cir. 1987); see also Larson, 843 F.2d at 1483. Factors to consider in determining whether a requester meets this prong of the test include the subject matter of the FOIA request and the requester's ability to disseminate the information to the public. See Larson, 843 F.2d at 1483.

 Defendants have never challenged plaintiff's ability or intention to disseminate the requested information to the public. Nor have they contested that the information sought concerns "the operations or activities of the government . . . ." 5 U.S.C. § 552(a)(4)(A)(iii). Indeed, they would be hard pressed to do so, since reports on agency implementation of FOIA by definition concern such matters. Instead, defendants rest their denials of plaintiff's fee waiver requests on the sole ground that the information sought already is in the public domain. *fn9" They claim that because the reports are available in their reading rooms, *fn10" further dissemination is not "likely to contribute significantly to public understanding of the operations or activities of the government . . . ." Id. Hence, defendants argue, they need not furnish the information to plaintiff without charge. See id.

 The Court finds defendants' position unpersuasive and without merit. The availability of FOIA material in an agency's public reading room does not thrust the material into the public domain. The public's awareness of information that, for all practical purposes, may be warehoused in an agency's reading room in the District of Columbia is likely to be dim at best, particularly to a resident in the wilds of western Montana. Defendants have not demonstrated the public's understanding of the information contained in the annual reports plaintiff seeks. Certainly, plaintiff's publication would be much more likely than defendants' reading rooms "to contribute significantly to public understanding of" agency implementation of FOIA. *fn11" Cf. United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 109 S. Ct. 1468, 1477, 103 L. Ed. 2d 774 (1989) ("Plainly there is a vast difference between the public records that might be found after a diligent search of courthouse files . . . and a computerized summary located in a single clearinghouse of information."). Defendants' argument to the contrary is shortsighted and specious.

 Based on the foregoing, the Court holds that defendants' denials of plaintiff's requests for fee waivers were improper. Accordingly, plaintiff's motion for summary judgment is granted and defendants' motion for summary judgment is denied. An Order consistent with this Memorandum Opinion has been entered this day.

 Date: November 16, 1989

 ORDER -- November 16, 1989, Filed

 Upon consideration of the parties' cross-motions for summary judgment, the oppositions thereto, and the entire record herein, and for the reasons stated in an accompanying Memorandum Opinion entered this day, it is this 16th day of November, 1989,

 ORDERED that plaintiff's motion for summary judgment is granted; it is

 ORDERED that defendants' motion for summary judgment is denied; and it is

 FURTHER ORDERED that this case is dismissed with prejudice.


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