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Federal CURE v. Lappin

March 18, 2009

FEDERAL CURE (FEDCURE) PLAINTIFF,
v.
HARLEY G. LAPPIN, DIRECTOR, FEDERAL BUREAU OF PRISONS DEFENDANT.



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

Memorandum Opinion

Federal CURE, Inc. ("FedCURE" or "the plaintiff") brought this lawsuit against the Federal Bureau of Prisons ("BOP" or "the defendant") claiming that the defendant improperly denied the plaintiff's fee waiver request for information sought under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (2006). Complaint ("Compl.") ¶¶ 20-21. Currently before the Court is the Defendant's Motion for Summary Judgment and its supporting memorandum ("Def.'s Mem.") made pursuant to Federal Rule of Civil Procedure 56, which is challenged by the plaintiff. Plaintiff's Opposition to Motion for Summary Judgment ("Pl.'s Opp'n").*fn1 In the plaintiff's opposition, in addition to opposing summary judgment in favor of the defendant, the plaintiff has cross-motioned the Court to grant summary judgment in its favor.

Upon consideration of the parties' submissions, the Court will deny the defendant's motion for summary judgment and grant summary judgment in favor of the plaintiff.

I. Factual Background

The plaintiff, FedCURE, "is a 501(c)(3) non-profit organization, [which] advocates for the federal inmate population and their families." Compl. ¶ 6. FedCURE "also provides information to the public about the workings of the BOP." Id. ¶ 7. On February 25, 2005, FedCURE submitted a FOIA request to the BOP's FOIA/Privacy Act ("PA") unit seeking:

1) all information about the accuracy of the ion spectrometer scanning method and the number of visitors turned away at all BOP facilities (by facility) because of the results of the scanning method since institution of its use,

2) all information relating to the training methods used for personnel operating this equipment and staff comments as to these methods and

3) all records of equipment failure and repairs.

Def.'s Mem., Exhibit ("Ex.") 2 (Letter from Kenneth Linn, Chairman of FedCURE, to BOP FOIA/PA unit, dated February 25, 2005) ("Linn Feb. 25, 2005 Letter").

The BOP's FOIA/PA office acknowledged its receipt of FedCURE's FOIA request in a letter dated April 4, 2005. Def.'s Mem., Ex. 3 (Letter from Wanda M. Hunt, Chief of BOP FOIA/PA Section, to Kenneth Linn, Chairman of FedCURE, dated April 4, 2005) ("Hunt Apr. 4, 2005 Letter"). The letter informed FedCURE that the search for the requested information would require 142 hours at $7.00 per quarter hour for professional time to process the request for a total cost of $3,976.00, excluding duplication fees of 10 cents per page. Id. The letter also informed FedCURE that the BOP would conduct the search if the $3,976.00 search fee was paid within 30 days. Id.

In an April 20, 2005, letter, FedCURE requested that the BOP waive the $3,976.00 search fee and any copying fees. Def.'s Mem., Ex. 4 (Letter from Kenneth Linn, Chairman of FedCURE, to BOP FOIA/PA unit, dated April 20, 2005) ("Linn Apr. 20, 2005 Letter"). In support of this fee waiver request, FedCURE's letter asserted, inter alia, that FedCURE is a nonprofit organization that receives less than $5,000.00 in yearly donations and that FedCURE is a "noncommercial scientific institution," and a "representative of the news media" by virtue of the publication of its newsletters. Id. FedCURE additionally asserted that the availability of information about the ion spectrometer was in the public interest and not in FedCURE's commercial interest, that FedCURE had received numerous requests from the public for information about the ion spectrometer, and that it intended to publish the ion spectrometer information in its newsletter and on its website. Id.

In a letter dated September 26, 2005, the BOP denied FedCURE's request for a FOIA fee waiver, finding that FedCURE did not meet the statutory definitions of a "noncommercial scientific institution" or "a representative of the news media" under 5 U.S.C. § 552(a). Def.'s Mem., Ex. 5 (Letter from Wanda M. Hunt, Chief of BOP FOIA/PA Section, to Kenneth Linn, Chairman of FedCURE, dated September 26, 2005) ("Hunt Sept. 26, 2005 Letter"). On November 1, 2005, FedCURE administratively appealed the denial of its FOIA fee waiver request to the Office of Information and Privacy ("OIP") at the Department of Justice ("DOJ"). Def.'s Mem., Ex. 6 (Letter from Kenneth Linn, Chairman of FedCURE, to OIP, dated November 1, 2005) ("Linn Nov. 1, 2005 Letter"). In its administrative appeal, FedCURE reasserted that it satisfied the statutory prerequisites for a fee waiver and also cited cases "holding that the public interest benefit test is to be liberally construed." Id.

On June 29, 2006, the OIP determined that FedCURE's FOIA fee waiver request had been properly denied by the BOP. Def.'s Mem., Ex. 7 (Letter from Daniel J. Metcalfe, Director of OIP, to Kenneth Linn, Chairman of FedCURE, dated June 29, 2006) ("Metcalfe June 29, 2006 Letter"). FedCURE then submitted a "Reconsideration of Appeal Denial" on July 10, 2006, Def.'s Mem., Ex. 8 (Letter from Kenneth Linn, Chairman of FedCURE, to Daniel Metcalfe, Director of OIP, dated July 10, 2006) ("Linn July 10, 2006 Letter"), which was denied by the OIP on November 8, 2006, Def.'s Mem., Ex. 9 (Letter from Daniel J. Metcalfe, Director ...


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