The opinion of the court was delivered by: Robertson, District Judge.
The only issue remaining for decision in this FOIA action is
whether the Department of Housing and Urban Development ("HUD")
properly denied plaintiffs' petitions for fee waivers. Plaintiffs
have failed to demonstrate that release of the documents they
seek will contribute to public understanding of the operation of
government. Their motion for summary judgment must accordingly be
denied. Defendant's cross-motion for summary judgment will be
HUD's Tenant Opportunities Program (TOP) provided funding for
projects that would benefit public housing residents. "Technical
assistance organizations" were responsible for organizing and
administering the "resident councils" that received TOP funds.
Plaintiff District of Columbia Technical Assistance Organization
(DCTAO) was formed in 1995 to assist twenty-seven resident
councils with the administration of nearly $2 million in TOP
DCTAO alleges that, after a June 1996 audit of its operations,
HUD placed a temporary freeze on TOP funds and then, after HUD's
Office of Inspector General released a favorable audit report and
recommended the continuation of TOP funding, began a systematic
effort to undercut DCTAO's role as intermediary between HUD and
the resident councils. The subtext of this FOIA case is a claim —
its asserted public interest component — that HUD officials
pressured resident councils by conditioning their continued
receipt of TOP funding on the termination of their involvement
with DCTAO and that HUD's goal in doing so was the "deliberate
destruction of DCTAO." Pl. Motion for Summary Judgment at 7.
On July 21, 1998, DCTAO submitted a second FOIA request to HUD
seeking documents concerning TOP and DCTAO, including electronic
mail messages, for the period December 12, 1996 through July 21,
1998. HUD declined to conduct the search until plaintiffs first
paid approximately $3700. DCTAO requested a fee waiver, and HUD
never responded (although, in the present posture of this case,
it is clear that HUD has refused it).
The decision of an agency to grant or deny a fee waiver request
is reviewed de novo looking only to the administrative record
before the agency at the time of the decision.
5 U.S.C. § 552(a)(4)(A)(vii) (1998). (The additional supporting documents
submitted with plaintiffs' motion for summary judgment were not
considered in the disposition of this case.)
Plaintiffs argue that the legislative history of the Freedom of
Information Act demonstrates that Congress intended for fee
waivers to be "liberally granted" to indigents and non-profit
organizations to provide these groups with equal access to
information concerning government activities. Courts in this
jurisdiction have consistently ruled, however, that indigence
alone does not entitle one to a fee waiver, see Ely v. Postal
Serv., 753 F.2d 163, 165 (D.C.Cir. 1985); Durham v. Department
of Justice, 829 F. Supp. 428, 435 n. 10 (D.D.C. 1993); Crooker
v. Army, 577 F. Supp. 1220, 1224 (D.D.C. 1984). An entity's
status as a non-profit or public interest organization does not
relieve it of the burden of meeting the requirements of the
statutory test for receiving a fee waiver. See McClain v.
Department of Justice, 13 F.3d 220, 221 (7th Cir. 1993)
(nonprofit status alone does not yield free access to facts);
see also Security Archive v. Department of Defense,
880 F.2d 1381, 1384 (D.C.Cir. 1989) (noting elimination from bill of
preference for fee waivers).
The Freedom of Information Reform Act of 1986 provides that
fees for search, review, or duplication of documents should be
waived or reduced "if disclosure of the information is in the
public interest because it is likely to contribute significantly
to public understanding of the operation or activities of the
government and is not primarily in the commercial interest of the
requester." Pub.L. No. 99-570, § 1803, 100 ...