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VOTEHEMP, INC. v. DRUG ENFORCEMENT ADMINISTRATION

December 23, 2002

VOTEHEMP, INC., PLAINTIFF,
V.
DRUG ENFORCEMENT ADMINISTRATION AND ASA HUTCHINSON, DEFENDANTS.



The opinion of the court was delivered by: Reggie B. Walton, United States District Judge

MEMORANDUM OPINION

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 Judgment.

I. Background

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 business interests.
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.

Id.

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 administratively 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

II. Analysis

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 interest 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 ...


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