The opinion of the court was delivered by: Reggie B. Walton, United States District Judge
This matter is before the Court on Plaintiff's Motion for Partial
Summary Judgment and Defendants' Cross Motion for Partial Summary
Judgment. The issue presented through the motions is whether or not
defendant has erroneously denied plaintiff's request for a fee waiver
regarding plaintiff's Freedom of Information Act ("FOIA") request. For
the reasons that follow, the Court concludes that the defendant did not
err in its determination that plaintiff is not entitled to a fee waiver
and accordingly the Court grants the Defendants' Cross Motion for Summary
Plaintiff, VoteHemp, is a nonprofit corporation that advocates for the
use of and a free market for industrial hemp.*fn1
of Points and Authorities in Support of its Motion for Partial Summary
Judgment ("Pl.'s Mem."), Declaration of Eric Steenstra, President of
VoteHemp, Inc., ("Steenstra Decl."), Exhibit ("Ex.") 1, selected pages
from VoteHemp's website. VoteHemp "seeks to educate the American public
about the uses and value of industrial hemp, and about public policy
issues relating to the regulation of industrial hemp." Pl.'s Mem. at 3.
In furtherance of its goals, VoteHemp operates a website, prepares and
distributes press advisories about news and developments regarding
industrial hemp and hemp policy, and "provides a free `Action Alert Email
List' which sends regular news and updates to thousands of subscribers
. . ." Id.
On September 21, 2001, VoteHemp requested from the defendant, the Drug
Enforcement Administration ("DEA"), all documents relating to hemp
policy, including "[a]ll written correspondence, including meeting notes,
from DEA interagency meetings . . ." pursuant to the FOIA,
5 U.S.C. § 552 (2000). Steenstra Decl. Ex. 2, Freedom of Information
Act Request dated September 21, 2001. In its request, VoteHemp's counsel
indicated that although the organization was willing to pay fees totaling
a maximum of $100, it sought a fee waiver of all additional fees. Id. In
support of this request, VoteHemp's counsel stated:
Disclosure of the requested information is in the
public interest because it is likely to contribute
significantly to public understanding of the
operations or activities of the government, and is not
in [the requestor's] or another's commercial or
Vote Hemp is a 501(c)(4) tax-exempt educational group
that seeks to help the American public better
understand industrial hemp policy and policy options.
Vote Hemp prepares and distributes a weekly press
advisory on current developments and news regarding
industrial hemp, policy, and enforcement.
On January 8, 2002, the defendant sent a letter to VoteHemp's counsel
in response to plaintiff's request indicating that five pages of material
had been located but were being withheld pursuant to FOIA exemptions
(b)(5) and (b)(7)(E). Steenstra Decl. Ex. 3, Letter from DEA dated
January 8, 2002. VoteHemp administratively appealed this initial
determination on January 28, 2002, and, after receiving no response to
this appeal, filed the instant complaint on May 21, 2002. Pl.'s Mem. at
6. After filing its complaint, plaintiff received a response from the
Department of Justice's ("DOJ") Office of Information and Privacy ("OIP")
stating that the DEA had decided to "reopen" VoteHemp's request.
Steenstra Decl. Ex. 5, Letter from DOJ dated May 15, 2002. Several days
later, plaintiff received a letter from the DEA's Freedom of Information
Section stating that plaintiff's request "failed to reasonably describe
the records sought . . ." and denying plaintiff's request for a fee
waiver based on the fact that plaintiff was a "commercial use requester"
and disclosure was "not likely to contribute significantly to public
understanding of the operations or activities of the government . . ."
Id. Ex. 6, Letter from DEA dated May 21, 2002.*fn2 Votehemp
appealed this decision on July 22, 2002, and the
decision was affirmed in a letter from the DOJ's OIP on September 27,
2002. Id. Ex. 8, Letter from DOJ dated September 27, 2002. Then on
October 2, 2001, the DEA issued an "Interpretive Rule" which provides
that the DEA "interprets the Controlled Substances Act ["CSA"] . . . and
DEA regulations to declare any product that contains any amount of
tetrahydrocannabinois (THC) to be a schedule I controlled substance, even
if such product is made from portions of the cannabis plant that are
excluded from the CSA definition of `marihuana.'" 66 Fed. Reg. 51,530
(Oct. 9, 2001).*fn3
After agreeing to limit its request to documents pertaining to "DEA's
promulgation of the `Interpretive,' `Proposed' and `Interim'
regulations,"*fn4 Pl.'s Mem. at 7, a DOJ lawyer informed VoteHemp that
the DEA "had identified 32,000 pages of documents `that can reasonably be
expected to contain documents responsive to plaintiff's reformulated
request.'" Id. (quoting Joint Meet and Confer Statement at 3). The DEA
also indicated that the search and duplication fees for the large volume
of documents could exceed $75,000. Id.*fn5
Normally, a person requesting documents pursuant to the FOIA must pay
the reasonable costs pertaining to the search, review and duplication of
the records sought. 5 U.S.C. § 552(4)(A)(ii)(I). Disclosure of the
information shall be made without cost to the requestor only where it is
determined that "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 government and is not primarily in
the commercial interest of the requester." 5 U.S.C. § 552(4)(A)(iii).
To aid its determination of whether to grant requests for fee waivers,
the DOJ has promulgated regulations found at 28 C.F.R. § 16.11(k),
which provide guidance for determining whether factors designated in the
regulations have been satisfied. In reviewing an agency's denial of a
request for a fee waiver, the Court must decide the issue de novo;
however, its review "shall be limited to the record [that was] before the
agency." 5 U.S.C. § 552(4)(A)(vii).
A two-prong analysis is required in determining whether VoteHemp is
entitled to a fee waiver. This analysis requires the Court to assess
whether "the disclosure of the information is `likely to contribute
significantly to public understanding of the operations or activities of
the government[,]'" and whether VoteHemp does "not have a commercial
in the disclosure of the information sought."
5 U.S.C. § 552(4)(A)(iii); Larson v. CIA, 843 F.2d 1481, 1483 (D.C.
Cir. 1988) (citations omitted); McClellan Ecological Seepage Situation
v. Carlucci, 835 F.2d 1282, 1284 (9th Cir. 1987). As the requester,
plaintiff has the burden of demonstrating that these two requirements are
satisfied. Larson, 843 F.2d at 1483 (citations omitted); Judicial Watch,
Inc. v. DOJ, 185 F. Supp.2d 54, 60 (D.D.C. 2002) ("Judicial Watch III").
Plaintiff's status as a non-profit organization does not relieve it of
its obligation to satisfy the statutory requirements for a fee waiver.
D.C. Technical Assistance Org., Inc. v. U.S. Dep't of Housing & Urban
Dev., 85 F. Supp.2d 46, 48 (D.D.C. 2000) (citations omitted).
Federal Rule of Civil Procedure 56(c) provides that summary judgment
should be granted where there exists "no genuine issue as to any material
fact and . . . the moving party is entitled to a judgment as a matter of
law." In reviewing a motion for summary judgment, the Court must review
the facts in the light most favorable to the non-moving party. Celotex
Corp. v. Catrett, 477 U.S. 317, 325 (1986). Summary judgment shall be
granted if the "pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show ...