The opinion of the court was delivered by: John D. Bates United States District Judge
In this action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, plaintiff The Edmonds Institute ("Edmonds" or "the Institute") and defendant United States Department of Interior ("DOI") have both filed renewed motions for summary judgment. The motions raise two discrete issues. First, the Institute challenges DOI's decision to withhold from disclosure all or part of nineteen documents pursuant to the deliberative process privilege. Second, the Institute claims that it is entitled to a waiver of FOIA processing fees. For the reasons explained herein, the Court finds that Edmonds is not entitled to disclosure of the nineteen documents but has satisfied the requirements for a public-interest fee waiver. Plaintiff's and defendant's respective motions are therefore granted in part and denied in part.
Edmonds is a non-profit organization that describes itself as providing information to the public concerning the use of microbiological resources found on federal land. See Decl. of Susan Mills ("Mills Decl.") Ex. A ("October 2002 FOIA Request") at 5. At issue in this case are two FOIA requests filed by Edmonds with DOI in October 2002 and August 2005. In both requests, Edmonds seeks access to documents created by DOI and the National Park Service ("NPS"), which is part of DOI, that relate to "benefits-sharing agreements" between the NPS and private-sector biotechnology researchers. These agreements govern the distribution of monetary and other "benefits" resulting from the private commercial development of research derived from specimens collected in national parks. See generally Edmonds Inst. v. Babbitt, 42 F. Supp. 2d 1, 4-9 (D.D.C. 1999) (describing history of benefits-sharing agreements). At this time, benefits-sharing agreements are the focus of a pending environmental impact statement ("EIS"), a draft of which was issued by the NPS in September 2006. See NPS, DOI, Servicewide Benefits-Sharing Draft Environmental Impact Statement (2006) ("DEIS"); see also Edmonds Inst., 42 F. Supp. 2d at 20 (ordering review under National Environmental Policy Act, 42 U.S.C. §§ 4321-4370e ("NEPA"), of benefits-sharing agreement between Yellowstone National Park and Diversa Corporation). Because the debate over the relative advantages and disadvantages of these agreements is not relevant to the parties' pending motions, the Court now turns to the particulars of the Institute's FOIA requests.
1. The October 2002 FOIA Request
Edmonds submitted its first FOIA request relevant to this case on October 15, 2002. In the request, Edmonds asked for information related to benefits-sharing agreements and/or the commercial use or appropriation of biological material from national parks appearing in documents created between June 7, 2002, and the date of DOI's response. October 2002 FOIA Request. In early 2004, DOI provided Edmonds with approximately 381 pages of responsive information and a list of documents that were withheld or redacted. Mills Decl. ¶ 5.
Edmonds instituted this action in September 2004, and shortly thereafter both parties filed motions for summary judgment. In support of its motion, DOI submitted a Vaughn index listing 283 documents that it considered exempt from FOIA disclosure.*fn1 Def.'s Mot. Summ. J. Ex. 2 (Vaughn Index). Edmonds filed a cross-motion for summary judgment that, among other things, objected to DOI's production cut-off date and its invocation of FOIA Exemption 5 to withhold certain documents. In an August 23, 2005, Memorandum Opinion & Order, this Court granted in part and denied in part the parties' respective motions. See Edmonds Inst. v. U.S. Dep't of Interior, 383 F. Supp. 2d 105 (D.D.C. 2005). DOI was ordered to submit a revised Vaughn index that provided a more detailed description and segregability analysis of each withheld document. Id. at 109-10. The Court also rejected the Institute's challenge to the use of a December 31, 2002, cut-off date for document production and noted that Edmonds could file an additional FOIA request for documents created after that date. Id. at 111.
DOI has now submitted a revised Vaughn index in support of its renewed motion for summary judgment. Edmonds has also filed a renewed cross-motion for summary judgment. The Institute continues to object to DOI's invocation of Exemption 5, but only as to the contents of nineteen documents that it argues contain segregable facts not covered by the deliberative process privilege. Edmonds has foregone all other previously made arguments with respect to its October 2002 FOIA request. Suppl. Decl. of Beth Burrows ¶ 4.
2. The August 2005 FOIA Request
Edmonds filed its second relevant FOIA request on August 25, 2005. That request asked for "copies of all more recent documents and records responsive to our client's previous FOIA request of October 15, 2002 . . . for the time period of 12/24/02 to the present." Decl. of Diane Cooke ("Cooke Decl.") Ex. A ("August 2005 FOIA Request"). DOI has not yet processed this request because Edmonds declined to pay the processing fees once its application for a public-interest fee waiver was denied. Cooke Decl. ¶ 8. In its August 2005 request, Edmonds claimed a fee waiver was warranted "for all of the reasons set forth in [the] October 15, 2002 FOIA request referenced above, which is incorporated by reference herein." August 2005 FOIA Request. DOI responded with a letter asking Edmonds for a copy of the earlier request. See Cooke Decl. Ex. B. at 1. Edmonds complied and also submitted a letter to DOI providing further support for a fee waiver. See Cooke Decl. Ex. C. ("September 2005 Waiver Request Letter").
DOI denied the fee waiver in October 2005, finding that Edmonds failed to demonstrate that release of the requested documents would be in the public interest, as required by FOIA. See 5 U.S.C. § 552(a)(4)(A)(iii); Cooke Decl. Ex. D ("Waiver Denial Letter"). Edmonds administratively appealed in November 2005. See Cooke Decl. Ex. E ("Letter Appealing Waiver Denial"). Before DOI issued a decision on the appeal, Edmonds amended its complaint in this action to include claims based on the fee-waiver denial.*fn2 Cooke Decl. ¶ 7. In their respective motions for summary judgment, the parties now disagree as to whether Edmonds sufficiently demonstrated that disclosure of the documents would contribute significantly to the public's understanding of government operations or activities.
Summary judgment is appropriate when the pleadings and the evidence demonstrate that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The party seeking summary judgment bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may successfully support its motion by "informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 'which it believes demonstrate the absence of a genuine issue of material fact.'" Id. (quoting Fed. R. Civ. P. 56(c)).
In determining whether there exists a genuine issue of material fact sufficient to preclude summary judgment, the court must regard the non-movant's statements as true and accept all evidence and make all inferences in the non-movant's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A non-moving party, however, must establish more than the "mere existence of a scintilla of evidence" in support of its position. Id. at 252. By pointing to the absence of evidence proffered by the non-moving party, a moving party may succeed on summary judgment. Celotex, 477 U.S. at 322. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 ...