factor, the agency
is entitled to consider "any commercial interest of the requester . . .
or of any person on whose behalf the requester may be acting." Id.; see
also Rozet v. Dep't of Housing and Urban Dev., 59 F. Supp.2d 55, 57
(D.D.C. 1999) (quoting HUD regulations defining "commercial use" that
provided that the agency could look to "interests of the requester or the
person on whose behalf the request is made."). Next, the agency should
consider "the primary interest in disclosure."
28 C.F.R. § 16.11(3)(ii).
In arguing that the plaintiff's interest in disclosure is commercial,
the defendants note that plaintiff's website states that it is organized
to "promote the `acceptance of and free market for Industrial Hemp.'"
Defs.' Opp'n at 16 (quoting portions of plaintiff's website). The
defendants also note that plaintiff's website contains direct links to
the websites of companies that sell hemp products and asks visitors to
the website to donate money to support the "industry's legal effort."
Id. at 17.*fn8 "Information is commercial if it relates to commerce,
trade or profit." McClellan, 835 F.2d at 1285 (citation omitted). A
review of plaintiff's website pages demonstrates that indeed it has a
commercial interest in the information it is seeking to obtain. Although
plaintiff claims that it is "not acting on behalf of the hemp products
industry and is not serving those `who are in the business of cultivating
hemp[,]'" Pl.'s Mem. at 15, the Court finds this position conflicts with
the information contained in plaintiff's website. As the website clearly
states, "Vote Hemp is a non-profit organization dedicated to the full
deregulation of and a free market for Industrial Hemp." Defendant's
Response to Plaintiff's Statement of Material Facts as to Which There is
no Genuine Issue ("Defs.' Resp."), Declaration of Katherine L. Myrick,
Chief, Freedom of Information Operations Unit, Freedom of Information and
Records Management Section, Drug Enforcement Administration ("Myrick
Decl.") Ex. H (selected pages from plaintiff's website). Despite this
statement, VoteHemp argues that the claim that it is "`promoting
business' is like saying that seniors' organizations that advocate
lowering prescription drug prices through wider availability of generic
drugs are merely promoting the generic drug industry, or that environment
groups that advocate alternative fuels are merely promoting the ethanol
industry." Pl.'s Mem. at 15-16. However, unlike a group that advocates,
for example, in support of lower drug prices for senior citizens through
the use of generic drugs, which admittedly may indirectly benefit generic
drug manufacturers, VoteHemp specifically advocates for a free market for
industrial hemp, a position that could directly benefit those who seek to
make a profit from deregulation, such as farmers and commercial
entities. Thus, plaintiff's advocacy for a free market in hemp, its
association with businesses with a commercial interest in hemp products,
coupled with the potential benefit that businesses would acquire from
disclosure support the DEA's finding that plaintiff has a commercial
interest in the disclosure sought. Therefore, the Court concludes that
VoteHemp, as an advocate for a free market in industrial hemp, has a
commercial interest in the information that it seeks to have disclosed.
Cf. Rozet, 59 F. Supp.2d at 57 (denying plaintiff's request for a fee
waiver and finding that the plaintiff had a commercial interest in the
information sought where "Mr. Rozet filed his initial FOIA requests five
months after HUD had brought its lawsuit against him
and his corporations. The nexus with the lawsuit established by the timing
of the FOIA requests and their content demonstrates conclusively that the
FOIA requests advance Mr. Rozet's commercial interest, rather than the
public interest. Plaintiff's assertion that he will not put the information
to a commercial use cannot be credited."); S.A. Ludsin & Co. v. U.S.
Small Business Administration, No. Civ.A.96-2146, 1997 WL 337469, at *7
(S.D.N.Y. June 19, 1997) (denying plaintiff's request for a fee waiver
where he sought documents pertaining to real estate he was selling on
behalf of the Small Business Association. "The private, commercial
benefit to Ludsin is clear. The public benefit, however, is not. First,
the public benefit is financial, not the public understanding of
government operations that Congress defined as the `public interest' to
be considered in FOIA fee waiver requests.").
For the reasons stated above, the Court concludes that plaintiff has
failed to satisfy two of the four public interest factors necessary to
justify granting its request for a fee waiver. In addition, the Court
concludes that plaintiff has a commercial interest in the information it
seeks to obtain and therefore should not be granted a fee waiver.
Accordingly, the Court concludes that plaintiff's motion for partial
summary judgment must be denied and that defendants' cross motion for
partial summary judgment must be granted.
For the reasons set forth in the Memorandum Opinion that accompanies
this Order, it is hereby ORDERED that plaintiff's Motion for Partial
Summary Judgment [#10] is denied. It is further
ORDERED that defendant's Cross-Motion for Partial Summary Judgment
[#11] is granted.