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D.C. TECHNICAL ASSIST. ORG. v. U.S. DEPT.

February 24, 2000

D.C. TECHNICAL ASSISTANCE ORGANIZATION, INC., ET AL., PLAINTIFFS,
V.
U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, DEFENDANT.



The opinion of the court was delivered by: Robertson, District Judge.

MEMORANDUM

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 granted.

BACKGROUND

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 grants.

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.

First FOIA Request

Second FOIA Request

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).

STANDARD OF REVIEW

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.)

ANALYSIS

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, ยง 1803, 100 ...


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