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Citizens for Responsibility and Ethics in Washington v. U.S. Dep't of Justice

March 16, 2009

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, PLAINTIFF,
v.
U.S. DEPARTMENT OF JUSTICE, DEFENDANT.



The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge

MEMORANDUM OPINION

Plaintiff, Citizens for Responsibility and Ethics in Washington ("CREW"), commenced this action against the United States Department of Justice ("the DOJ") pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. CREW seeks information concerning the government's decision to reduce its monetary penalty request in its ongoing litigation against the tobacco industry.

Pending before the Court is Plaintiff's Motion for Summary Judgment on its entitlement to a fee waiver under FOIA. Upon consideration of the motion, the response and reply thereto, the applicable law, and the entire record, Plaintiff's Motion for Summary Judgment on its entitlement to a fee waiver under FOIA is GRANTED. Accordingly, the fees incurred by Defendant in response to Plaintiff's request for documents regarding the reduction in penalties at issue in this case shall be waived.

I. Background

A. Statutory and Regulatory Framework

FOIA provides a "statutory right of public access to documents and records" held by federal government agencies. Pratt v. Webster, 673 F.2d 408, 413 (D.C. Cir. 1982). In that way, FOIA "embodies a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language." Id. (internal quotation marks omitted). FOIA also requires each agency to promulgate regulations specifying a fee schedule for FOIA requests and establishing guidelines for the waiver or reduction of fees. 5 U.S.C. § 552(a)(4)(A)(I). Furthermore, FOIA mandates that responsive documents "shall be furnished without any charge or at a charge reduced . . . 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." Id. § 552(a)(4)(A)(iii) (emphasis added).

The DOJ has promulgated its own regulations regarding the processing of fee waivers. See 28 C.F.R. § 16.11(k)(1-2). Under DOJ regulations, the public-interest requirement implicates consideration of four factors: 1) whether the subject concerns the operations or activities of the government; 2) the informative value of the information, or whether it will contribute to an understanding of the subject; 3) the information's contribution to greater understanding by the public; and 4) the significance of that contribution to public understanding. Id. § 16.11(k)(2)(i-iv).

B. Factual and Procedural Background

CREW is a non-profit organization that strives to inform the public about the activities of government officials. Compl. ¶ 4. The FOIA request at issue came out of the litigation surrounding United States v. Philip Morris, Inc., a racketeering case brought on behalf of the United States against the tobacco industry.*fn1 On June 7, 2005, DOJ attorneys requested that as a penalty for the tobacco industry's violations, the court order the industry to fund a $10 billion smoking cessation program, at a rate of $2 billion per year for five years. Compl. ¶ 16. As reported by the newspapers closely following the tobacco litigation, this proposed penalty represented a significant departure from the government's position in the case up to that point, which was a $130 billion smoking cessation program, at a rate of $5.2 billion per year for twenty-five years. Id. at ¶¶ 16-18; Pl.'s Mem. P. & A. Supp. Mot. Summ. J. ("Pl.'s Mem.") at 1. That reduction in penalties led CREW to believe there had been "political pressure applied to career DOJ attorneys to protect the financial interest of tobacco companies that had provided generous campaign contributions."*fn2 Pl.'s Mem. at 1.

In line with its belief that gaining access to documents concerning the reduction in penalties would "reveal meaningful information about the operations and activities of the federal government," id. at 2, CREW made a FOIA request, by letter on June 28, 2005, for "all records relating in any way to the government's proposed penalty in United States of America v. Philip Morris, Inc. et. al." Letter from Anne Weismann to James Kovackas (June 28, 2005), attached as Ex. 1(A) to Def.'s Opp'n to Pl.'s Mot. Summ. J. ("Def.'s Opp'n"). Specifically, CREW requested all memoranda, communications and records of any kind and from any source, regardless of format, medium, or physical characteristics, from January 1, 2001, to the present, discussing or mentioning in any way any penalty that the U.S. Department of Justice, on behalf of the United States of America, can, may, should or will propose in the above-referenced litigation . . . . This request includes, but is not limited to, records discussing, mentioning, or referring in any way to the government's decision to reduce the penalties it is seeking against the tobacco industry from $130 billion to $10 billion . . . [and] records relating in any way to any offer of settlement in the tobacco lawsuit from any source whatsoever.

Id. In its letter, CREW also sought expedited processing of its request under 5 U.S.C. § 552(a)(6)(E)(i) and a fee waiver under 5 U.S.C. § 552(a)(4)(A)(iii). Id.

The DOJ granted CREW's request for expedited processing, but denied the fee waiver on the grounds that responsive documents would be protected from disclosure under the deliberative-process and work-product privileges. Letter from James Kovackas to Anne Weismann (July 7, 2005), attached as Ex. 1(B) to Def.'s Opp'n. The DOJ then advised CREW of the likely costs associated with its request, asked if the organization would be willing to pay those fees, and suggested a narrowing of the scope of the request.*fn3

Id. CREW's appeal from that determination was denied on the grounds that CREW's allegations were too ephemeral to support a fee-waiver request and that, therefore, the request was not likely to contribute to the public's understanding. Letter from Melanie Ann Pustay to Ann Weismann (Jan. 19, 2006), attached as Ex. 2(E) to Def.'s Opp'n. In addition, the DOJ notified CREW of its position that the fee-waiver provision of FOIA refers only to disclosable portions of the record. Id. As such, because the DOJ claimed that information requested by CREW was "virtually inherently protected" from disclosure by the attorney-client, deliberative-process, or work-product privileges, it deemed much of CREW's request ineligible for a fee waiver. Id. The DOJ agreed to waive fees for releasable documents that otherwise satisfied the public-interest standard. Id. CREW's waiver ineligibility was confirmed on appeal. Letter from Daniel Metcalfe to Ann Weismann (Jan. 23, 2006), attached as Ex. 1(D) to Def.'s Opp'n.

Following a full initial briefing and two hearings, the Court granted discovery on the issue of whether the DOJ acted in bad faith in delaying its processing of CREW's FOIA requests. After discovery was completed, the parties then filed cross-motions for summary judgment on that issue. The briefing on those motions was completed in late December 2006. The Court issued a minute order on March 31, 2008, directing the parties to brief the issue of entitlement to a fee waiver. The cross-motions for summary ...


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