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Ctr. For Pub. Integrity v. U.S. Dep't of Health & Human Servs.

August 3, 2007

CTR. FOR PUB. INTEGRITY, PLAINTIFF,
v.
U.S. DEP'T OF HEALTH & HUMAN SERVS., DEFENDANT.



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

MEMORANDUM OPINION

Plaintiff Center for Public Integrity ("CPI") challenges the denial by defendant United States Department of Health and Human Services ("HHS") of its request for treatment as a representative of the news media for purposes of assessing fees for document requests made by CPI under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (2000). Before the Court are the parties' cross-motions for summary judgment. For the reasons explained below, the Court concludes that CPI is entitled to treatment under FOIA as a representative of the news media. The Court therefore grants CPI's cross-motion for summary judgment and denies HHS's motion for summary judgment.

BACKGROUND

CPI defines itself as a nonpartisan, nonprofit investigative reporting organization that examines and writes about public service and ethics-related issues. See, e.g., Def.'s Mot. for Summ. J., Ex. A (Dec. 21, 2005, FOIA Requests) at 1. Plaintiff submitted, on two separate dates, a total of six requests for materials from HHS pursuant to the Freedom of Information Act, § 552(a). The Court will describe the two sets of requests in turn.

I. December 21, 2005 Requests

On December 21, 2005, CPI sent five FOIA requests to HHS soliciting materials from and correspondence to the Agency for Toxic and Disease Registry. See Dec. 21, 2005, FOIA Requests. In its requests, CPI asked to be classified as a "representative of the news media" for purposes of the agency's FOIA fee schedule. See § 552(a)(4)(A)(II) (requiring agencies to limit processing fees to duplication expenses for requests made by "representative of the news media"); 45 C.F.R. § 5.41(b) (2006) ("If you are . . . a representative of the news media . . . HHS will charge you only for the duplication of documents."). CPI noted in its request letters that it had been treated as a representative of the news media by the State Department and the Central Intelligence Agency in previous FOIA searches. Dec. 21, 2005, FOIA Requests at 1, 5, 9, 13, 17.

CPI also provided the following information to HHS in support of its status as a representative of the news media. First, CPI explained why it thought that the material it requested was likely to contribute to the public's understanding of the agency:

The information will be posted to our newsletter, The Public i and on our website, www.publicintegrity.org, and will be read by a large number of people. We expect the information produced through this and other FOIA requests to serve as the basis for several press releases and articles that explain the actions and operations of government to the general public. Similar stories we have written in the past have increased the understanding of an issue by a large percentage of the public. For example, our organization posted the first stories about the "Lincoln Bedroom" scandal under the Clinton administration, and now the general public knows that campaign contributors to the Democratic Party were allowed to stay at the White House. Other stories, including the Center's exclusive release of Securities and Exchange Commission Records pertaining to President Bush's sale of Harken stock and Vice President Cheney's connections to the Halliburton Corporation have similarly informed the public.

Id. at 2, 6, 10, 14, 18. CPI further noted that "relevant information from this FOIA request will also be distributed to the general public via major news organizations." Id. In addition, CPI claimed that it "possesses the skills necessary to process the requested information" because it is comprised of "investigative journalists" who "write and post an online newsletter." Id. CPI also observed that "[o]ther members of the media consider us to be [sic] news organization as evidenced by our numerous awards over the years from the Society of Professional Journalists and the Investigative Reporters and Editors Inc." Id. at 3, 7, 11, 15, 19. Lastly, CPI stated that the requested disclosures "do not primarily serve any 'commercial interests.'" Id.

On October 5, 2006, almost a year after plaintiff's FOIA requests were submitted, HHS denied CPI's request for treatment as a representative of the news media. See Def.'s Mot. for Summ. J. Ex. B at 1. HHS simply stated that: "We have carefully considered your request for a fee waiver but do not believe you meet the criteria as set forth in the Department of Justice FOIA Reference Guide, or the Department's implementing regulations at 45 CFR Part 5.45, therefore we are denying your request."*fn1 Id. On October 18, 2006, plaintiff filed an appeal with HHS claiming that CPI falls within the D.C. Circuit's definition of a representative of the news media. Def.'s Mot. for Summ. J. Ex. C at 1. As part of the appeal, CPI "invite[d HHS] to review our recent publications, at http://www.publicintegrity.org/archives/aspx," and enclosed a list of awards that it had received for various publications since 1997. See id. at 2-6. No agency action was taken on the appeal prior to the filing of the complaint in district court.

II. February 14, 2006 Request

CPI submitted a sixth FOIA request to HHS on February 14, 2006, that asked for information regarding "grants, contracts and/or agreements made through the HHS in relation to the President's Emergency Plan for Aids Relief." Def.'s Mot. for Summ. J. Ex. D (Feb. 14, 2006, FOIA Request) at 1. CPI again requested treatment as a representative of the news media under the HHS fee schedule. See id. The information that CPI provided in its February 2006 letter in support of this status was identical to the information provided in each of CPI's December 2005 FOIA requests. See Feb. 14, 2006, FOIA Request at 2-3.

On April 19, 2006, HHS issued a letter declining to recognize CPI as a representative of the news media. See Def.'s Mot. for Summ. J. Ex. E (Letter from Darlene Christian, Public Health Service, to Marina Walker Guevara, CPI (Apr. 19, 2006)) ("April 2006 Denial") at 1. HHS stated that the "CPI web site acknowledges that it is a broker of information. Therefore, CPI is a secondary contributor, not a primary news-gathering organization." Id. at 2. HHS concluded that CPI had not sufficiently demonstrated that release of the requested information was not primarily in CPI's commercial interest. Id.

CPI appealed this decision on May 26, 2006. See Def.'s Mot. for Summ. J. Ex. F. It objected to HHS's interpretation of the phrase "broker of information" as an indication that CPI would profit commercially from the requested information. See id. CPI explained that the phrase may have been taken from a statement on its website that "[t]hrough objective and thorough analyses, the Center hopes to serve as an honest broker of information and to inspire a better-informed citizenry that can demand a higher level of accountability from its government and elected leaders." Id. As in the previous appeal, CPI also invited HHS to review its recent publications on its website ...


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