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JUDICIAL WATCH, INC. v. U.S. DEPT. OF JUSTICE
January 14, 2002
JUDICIAL WATCH, INC., PLAINTIFF,
UNITED STATES DEPARTMENT OF JUSTICE, DEFENDANT.
The opinion of the court was delivered by: Paul L. Friedman, District Judge.
Plaintiff Judicial Watch, Inc. filed suit pursuant to the
Freedom of Information Act, 5 U.S.C. § 552, seeking information
regarding the trade missions of the United States Department of
Commerce from 1993 to 1998. Defendant has filed a motion for
partial summary judgment, contending that before it continues to
search for records responsive to plaintiff's request, plaintiff
must indicate its willingness to pay fees or to authorize a
particular amount of fees it is willing to pay. Plaintiff argues
that it is entitled to a fee waiver either because the
disclosure of information it requested is in the public interest
or because Judicial Watch is a "representative of the news
media." Judicial Watch also argues that the search conducted by
defendant was inadequate.
Upon consideration of the arguments presented by the parties,
the Court grants defendant's motion for partial summary judgment
in part and denies it in part. It denies plaintiff's
cross-motion for partial summary judgment.
By its own account, Judicial Watch is a "non-profit,
non-partisan, tax-exempt 501(c)(3) organization which as a
public interest law firm specializes in deterring; monitoring,
uncovering, and addressing public corruption in government."
Complaint ¶ 5 and Exhibit ("Ex.") 1, October 19, 1998, Letter
from Larry Klayman, Judicial Watch, to Margaret A. Irving,
Department of Justice ("Oct. 19 Letter") at 3. In its FOIA
request, plaintiff requested that defendant release all
relating to "United States Department of Commerce trade missions
from January 1993 to [October 1998] and the decision of the
Attorney General to not appoint an independent counsel to
investigate the alleged sale of seats on said trade missions by
the Clinton Administration and/or the Democratic National
Committee." Complaint ¶ 5; Oct. 19 Letter at 1. Plaintiff also
requested a fee waiver as a "representative of the news media"
under 5 U.S.C. § 552(a)(4)(A)(ii)(II) and/or because the
disclosure of the documents would in the public interest under
5 U.S.C. § 552(a)(4)(A). See id. ¶¶ 7-9, 11; Oct. 19 Letter at
In a letter dated November 10, 1998, the Justice Department
informed plaintiff that the request for a fee waiver had been
denied on both grounds. See Complaint ¶¶ 7, 8, Ex. 2, November
10, 1998, Letter from Charlene Wright Thomas, Department of
Justice, to Larry Klayman ("Nov. 10 Letter") at 1-3. Defendant
explained that Judicial Watch would be categorized as an "other"
requester and therefore entitled to only two hours of search
time and 100 pages of records free of any search or duplication
charge under 28 C.F.R. § 16.11(d). See Nov. 10 Letter at 2-3.
Defendant also explained that it had searched for responsive
documents for two hours and intended to produce those documents
responsive to plaintiff's request; before defendant conducted
any further searches, however, plaintiff would need to indicate
its willingness to pay the normal search and duplication fees.
See id. Plaintiff administratively appealed the denial of its
request for a fee waiver. See Complaint ¶ 9, Ex. 3, January
11, 1999, Letter from Larry Klayman to the Office of Information
and Privacy, Department of Justice ("Jan. 11 Letter") at 2-4.
The Office of Information and Privacy ("OIP") denied
plaintiff's appeal, concluding that plaintiff's application for
a fee waiver or fee reduction had been properly denied. See
Complaint ¶ 10, Ex. 4, February 19, 1999, Letter from Richard L.
Huff, Department of Justice, to Larry Klayman ("Feb. 19 Letter")
at 1. Plaintiff also appealed to the OIP on the grounds that the
search conducted was inadequate; the OIP denied plaintiff's
appeal on that ground as well. See Complaint ¶¶ 13-25, Exs.
A. Fee Waiver: Representative of the News Media
The Freedom of Information Act provides that each agency of
the federal government shall promulgate regulations specifying a
schedule of reasonable fees for document searches, duplication
and review to be charged to FOIA requesters. See
5 U.S.C. § 552(a)(4)(A). It directs that the regulations also shall include
procedures and guidelines for determining when such fees should
be waived or reduced. See 5 U.S.C. § 552(a)(4)(A)(i). The
agency's regulations should establish that the fees are "limited
to reasonable standard charges for document duplication when
records are not sought for commercial use and the request is
made by . . . a representative of the news media."
5 U.S.C. § 552(a)(4)(A)(ii)(II). The Department of Justice has promulgated
regulations that define "representative of the news media" as
"any person actively gathering news for an entity that is
organized and operated to publish or broadcast news to the
public." 28 C.F.R. § 16.11(b)(6). The D.C. Circuit has further
defined a representative of the news media as "a person or
entity that gathers information of potential interest to a
segment of the public, uses its editorial skills to turn the raw
materials into a distinct work, and distributes that work to an
audience." National Security Archive v. United
States Dep't of Defense, 880 F.2d 1381, 1387 (D.C.Cir. 1989).
There is some disagreement as to the correct standard a court
is to apply in considering a government agency's denial of a
plaintiff's request for representative of the media status. Many
of the judges of this Court have concluded that
5 U.S.C. § 552(a)(4)(A)(vii) is applicable in this situation and, based on
the express language of that section, therefore have conducted a
de novo determination limited to the record before the agency.
See Judicial Watch, Inc. v. United States Dep't of Justice,
Civil Action No. 99-2315, slip op. at 4-5 (D.C. Aug. 17, 2000)
(Kollar-Kotelly, J.); Judicial Watch, Inc. v. United States
Dep't of Justice, 133 F. Supp.2d 52, 53 (D.C. 2000) (Robertson,
J.); Judicial Watch v. United States Dep't of Justice, Civil
Action No. 97-2869, slip op. at 2 (D.C. Aug. 25, 1998) (Urbina,
J.). Judge Kennedy, however, has concluded that Section
552(a)(4)(A)(vii) is not applicable when determining whether the
agency properly categorized the requester as a representative of
the news media and that the more deferential arbitrary and
capricious standard applies. See Judicial Watch II,
122 F. Supp.2d 5, 11-12 (D.C. 2000). This Court will determine de
novo whether plaintiff is entitled to be classified as a
representative of the news media based on the record before the
Plaintiff represents that when it obtains documents through
FOIA requests, "it allows reporters into its offices to inspect
the documents" and that these reporters may write stories based
on the information reviewed. Oct. 19, Letter at 3. It also
states that it disseminates information by posting electronic
copies of the documents received through its FOIA requests on
Judicial Watch's website and by preparing press releases that
are "blast faxed" to radio and television stations and to
newspapers across the country. Id. Finally, it points to the
fact that representatives of Judicial Watch, including Larry
Klayman, "frequently appear on nationally broadcast radio and
television programs." Id. at 4.
Judicial Watch does not characterize itself as an entity
engaged in the broadcast and publication of news but rather as a
non-profit public interest law firm specializing in "deterring,
monitoring, uncovering and addressing public corruption in
government." Complaint, Ex. 1 at 3; see also Judicial Watch
III, slip op. at 6. From plaintiff's own characterization of
its activities, the Court concludes that plaintiff is at best a
type of middleman or vendor of information that representatives
of the news media can utilize when appropriate. This
relationship with the news media, however, does not make
Judicial Watch a representative of the news media or entitle it
to be considered as such for the purposes of a fee waiver under
the FOIA. As the D.C. Circuit has made plain, when a party acts
as a private library,
information vendor or middleman, the party does not qualify as a
"representative of the news media" for purposes of the FOIA.
See National Security Archive v. United States Dep't of
Defense, 880 F.2d at 1386-87. "Merely making available
information to the public does not transform a requester into a
representative of the news media." Judicial Watch I,
122 F. Supp.2d at 20 (citing National Security Archive v. United
States Dep't of Defense, 880 F.2d at 1386); but see Judicial
Watch IV, 133 F. Supp.2d at 53-54. To be considered a
representative of the news media, a requester must establish
that it has "a firm intent to disseminate, rather than merely
make available, the requested information." Judicial Watch II,
122 F. Supp.2d at 13; see Judicial Watch I, 122 F. Supp.2d at
20-21. This Court therefore concludes that Judicial Watch should
not be classified as a representative of the news media for
purposes of a fee waiver under the FOIA.
B. Fee Waiver: Public Interest
Documents shall be furnished without any charge or at
a charge reduced below the fees established under
clause (ii) [5 U.S.C. § 552(a)(4)(A)(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 ...