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Physicians Committee for Responsible Medicine v. Dep't of Health and Human Services

March 26, 2007

PHYSICIANS COMMITTEE FOR RESPONSIBLE MEDICINE, PLAINTIFF,
v.
DEPARTMENT OF HEALTH AND HUMAN SERVICES DEFENDANT.



The opinion of the court was delivered by: John D. Bates United States District Judge

MEMORANDUM OPINION

Pending before the Court in this Freedom of Information Act ("FOIA") fee waiver case are cross-motions for summary judgment filed by plaintiff Physicians Committee for Responsible Medicine ("PCRM") and defendant Department of Health and Human Services ("HHS"). The resolution of the motions turns on whether PCRM submitted information to HHS demonstrating that 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. See 5 U.S.C. § 552(a)(4)(A)(iii). For the reasons stated herein, the Court concludes that PCRM has satisfied the requirements for a fee waiver.

BACKGROUND

Plaintiff PCRM is a non-profit organization whose stated mission is to promote effective, ethical and compassionate scientific research. Admin. R. at 12. PCRM is also viewed as an animal rights group with close ties to People for the Ethical Treatment of Animals. Id. at 31. PCRM's mission includes understanding and educating the public about the people and decisions that lead to federal government spending on animal research methods. Id. at 12. In furtherance of its mission, PCRM submitted two FOIA requests for information related to the Interagency Coordinating Committee on the Validation of Alternative Methods ("ICCVAM"). Id. at 11-13, 15-17. The requests were sent on August 26, 2005 to the National Institute of Environmental Health Sciences ("NIEHS") and the Food and Drug Administration ("FDA"). Id. The requests were nearly identical, both seeking various records related to the ICCVAM and both asking for fee waivers. Id. Because more then one public health agency was involved, the requests were referred to the Freedom of Information Office at the Public Health Service ("PHS") for a resolution of the fee waiver issue. Id. at 19. PHS's FOIA officer estimated the cost of conducting the search and duplicating the records for both requests to be approximately $100,000. Id. at 22, 34.

On January 31, 2006, PHS denied PCRM's fee waiver requests. Id. at 19-20. PCRM proceeded to file an appeal of the fee waiver denial with HHS's Deputy Assistant Secretary for Public Affairs/Media on February 9, 2006. Id. at 135-36. HHS affirmed the denial of the fee waiver requests by letter dated May 17, 2006. Id. at 132-33. Following the denial of its appeal, PCRM filed suit in this Court on August 7, 2006 seeking judicial review of that decision under the FOIA (Claim One) and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-06 (Claim Two).

STANDARD OF REVIEW

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).

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 U.S. at 249-50 (internal citations omitted).

In a FOIA fee waiver case, the district court conducts a de novo review of an agency's denial of a fee waiver request; however, the district court is limited to the record before the agency. 5 U.S.C. § 552(a)(4)(A)(vii); see National Treasury Employees Union v. Griffin, 811 F.2d 644, 648 (D.C. Cir. 1987) ("The [requester's] failure to demonstrate a public interest before the agency cannot be remedied by doing so before a court.").*fn1 Although the APA once provided the standard for judicial review, this was altered by the 1986 amendments to FOIA codifying 5 U.S.C. § 552(a)(4)(A)(vii). See Larson v. CIA, 843 F.2d 1481, 1482-83 (D.C. Cir. 1988) (highlighting the change in the standard of review from the arbitrary and capricious standard under the APA to the de novo standard under the FOIA fee waiver statute as amended by Congress in 1986).*fn2

ANALYSIS

The Freedom of Information Act permits agencies to charge search and duplication fees to requesters. See 5 U.S.C. § 552(a)(4)(A). It further provides that each agency of the federal government shall promulgate regulations specifying the schedule of fees applicable to processing requests under the Act and establishing procedures and guidelines for when such fees should be waived or reduced. See 5 U.S.C. § 552(a)(4)(A)(i). A fee waiver or reduction under FOIA is appropriate 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 the government and is not primarily in the commercial interest of the requester. See 5 U.S.C. § 552(a)(4)(A)(iii). The commercial interest prong will not be discussed here because HHS elected not to pursue any argument under this prong of the analysis. Mem. in Supp. of Def.'s Mot. for Summ. J. at 13 ("Def.'s Mem."). Thus, this case turns on whether disclosure of the requested information is in the public interest.

HHS has established a fee waiver standard that is identical to the standard set forth in FOIA. See 45 C.F.R. § 5.45(a). In addition, HHS's regulations provide a four part test to determine whether disclosure of the information will further a specific public interest.*fn3 See 45 C.F.R. § 5.45(b). First, do the records to be disclosed pertain to the operations or activities of the federal government? See 45 C.F.R. § 5.45(b)(1). Second, would disclosure of the records reveal any meaningful information about government activities? See 45 C.F.R. § 5.45(b)(2). Third, would the disclosure advance the understanding of the general public as distinguished from a narrow segment of interested persons? See 45 C.F.R. § 5.45(b)(3). Finally, will the contribution to public understanding be a significant one? See 45 C.F.R. § 5.45(b)(4).

HHS contends that PCRM has failed to satisfy the third and fourth factors of the public interest analysis.*fn4 As to the documents' alleged "significant" contribution to public understanding, HHS contends that PCRM's submission is wholly conclusory; as to the advancement of the "general public" understanding, HHS contends that PCRM did not demonstrate the ability to disseminate the requested information to the public at large. Def.'s Mem. at 13-17. PCRM responds, regarding the significant contribution requirement, that ICCVAM has made "remarkably little progress in doing what it was set up to do, 'reduce, refine, or replace the use of animals in testing.'" Admin. R. at 13, 17 (quoting 42 U.S.C. § 285l-3(b)(5)). PCRM further states that part of the problem is that the agency representatives to ICCVAM do not appear to endorse ICCVAM's goals, and that how and why this happened is a "question of critical importance to the public." Id. Furthermore, PCRM states, "it is always in the public interest to openly air the fact that a government body is not carrying out its statutory function effectively and efficiently." Id. HHS argues that these statements are conclusory and unsupported by fact, see Def.'s Mem. at 14, and hence HHS claims that PCRM failed to prove that the requested information will result in a significant contribution to public understanding.

"A requester seeking a fee waiver bears the initial burden of identifying the public interest to be served," and that public interest must be asserted with reasonable specificity. Griffin, 811 F.2d at 647. Thus, "conclusory statements that the disclosure of the requested documents will serve the public interest are not sufficient" to meet the requester's burden of showing that the fee waiver requirements are met. Judicial Watch, Inc. v. Dep't of Justice, 185 F. Supp. 2d 54, 60 (D.D.C. 2002). Here, however, the ...


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