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LONG v. BATF

May 20, 1997

SUSAN B. LONG and DAVID BURNHAM, Plaintiffs,
v.
BUREAU OF ALCOHOL, TOBACCO AND FIREARMS and DEPARTMENT OF THE TREASURY, Defendants.



The opinion of the court was delivered by: FRIEDMAN

 This action raises the issue of whether a requester who has sought and obtained a fee waiver under the Freedom of Information Act, 5 U.S.C. § 552(a)(4)(A), is entitled to a status determination under 5 U.S.C. § 552(a)(4)(A)(ii). The case is before the Court on the motion of defendants Bureau of Alcohol, Tobacco and Firearms and the Department of the Treasury to dismiss or for summary judgment.

 Plaintiffs Susan Long and David Burnham are co-directors of the Transactional Records Access Clearinghouse ("TRAC"), an organization affiliated with Syracuse University that serves as a clearinghouse for government information. *fn1" TRAC is a research center that seeks to "promote public understanding of the operation of the federal government through the gathering and dissemination of information" through various media, including printed publications, electronic media and the Internet. Letter of Susan B. Long to BATF Director John W. Magaw at 2-3 (Sept. 5, 1996), Defs.' Mot. to Dismiss, Ex. A.

 On behalf of TRAC, plaintiffs filed a request for documents under the FOIA, 5 U.S.C. § 552(a). Plaintiffs requested a statutory waiver of all fees associated with their request based on three premises: (1) that the records sought would "substantially further the public's understanding of the important policies and activities of [BATF] and our federal criminal justice system," (2) that TRAC was "an educational or noncommercial scientific institution, whose purpose is scholarly or scientific research," and (3) that TRAC's activities qualified the organization to be exempt from fee payment as "a representative of the news media." Complaint PP 7-8.

 After BATF made some of the requested documents available to plaintiffs and after plaintiffs had complied with BATF's request to submit additional information in support of their fee waiver request, the agency denied plaintiffs' request for a fee waiver. BATF explained that it had found "some evidence of a commercial interest" in plaintiffs' request for documents. Letter from Eric O'Neal to Susan B. Long (Aug. 6, 1996), Pls.' Opp'n to Defs.' Mot., Ex. A. The agency informed plaintiffs that in order to receive the requested documents, plaintiffs would have to furnish an advance payment of $ 1,900. BATF also informed plaintiffs of their right to an administrative appeal of this decision by petitioning the Director of BATF.

 Plaintiffs submitted a check to BATF in the amount of $ 1,900, noting both that the fee was being paid "in protest" and that plaintiffs would appeal the decision. Plaintiffs then filed an administrative appeal with the Director of BATF in which they requested review of the fee waiver denial on the grounds that (1) TRAC is an "educational institution," (2) TRAC is a "representative of the news media" and (3) the records sought would be of "significant interest to the general public." Appeal Letter from Susan B. Long to BATF Director John W. Magaw at 2-4 (Sept. 5, 1996), Defs.' Mot. to Dismiss, Ex. A.

 On appeal, BATF granted plaintiffs' fee waiver request, giving as its sole reason that plaintiffs' request was "in the public interest because it [was] likely to contribute significantly to public understanding of the operations or activities of the government and [was] not primarily in the commercial interest of the requester." Letter from Director John Magaw to Susan Long at 2 (Nov. 8, 1996), Defs.' Mot. Dismiss, Ex. B. See 5 U.S.C. § 552(a)(4)(A)(iii). BATF explained further that it did not "find it necessary" to reach the question of plaintiffs' status as an educational institution or as a representative of the news media. Id.

 Although they have now obtained a fee waiver, plaintiffs ask the Court to declare that plaintiffs qualify for both the "educational institution" and "news media" exemptions from the fee payment requirements of the FOIA. Defendants argue that this action is moot because the fee has been waived and that any claim with respect to future FOIA requests is not ripe.

 II. THE FEE WAIVER CLAIMS

 In addition to fee limitations based upon status, FOIA fees may be offset or eliminated entirely based upon the requester's "purpose" in requesting the documents. The statute's purpose designation is broader than its status designation:

 
Documents shall be furnished without any charge or at a charge reduced below the fees established under clause (ii) if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the ...

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