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November 30, 2010


The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge


Plaintiff Tyrone D. Perkins requested information under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, from the Department of Veterans Affairs ("VA") regarding employee training at the VA's Information Technology Center ("ITC"). Plaintiff also sought a waiver of the fees associated with his request, claiming that disclosure of the information was in the public interest as required by FOIA's fee waiver provision, id. § 552(a)(4)(A)(iii). Defendant's denial of this request has prompted this suit. Before the Court are the parties' cross-motions for summary judgment, and upon consideration of the pleadings and relevant law, the Court will grant defendant's motion.


The ITC is a division of the VA consisting of approximately 86 employees who provide "information technology support and services to the VA, veterans, and other stakeholders." (Def.'s Statement of Material Facts not in Genuine Dispute ["Def.'s Facts"] ¶ 1; Decl. of Carol

A. Winter, Director of ITC ["Winter Decl."] ¶ 2.) On November 14, 2006, plaintiff sent the ITC a FOIA request seeking, for the fiscal year beginning October 1, 1999 through the fiscal year ending September 30, 2006: (1) training plan reports containing the name of the employee enrolling in the training, priority, course title/subject, division, dates, vendor, location, cost, travel, and justification; (2) training cost reports containing initials, IT tracking numbers, date approved, order date, item acquired, vendor name, cost, balance of funds, date received, date hit in the Status of Funds, and Visa credit card date; and (3) all other training reports used and/or created in connection with training utilized locally and/or submitted to the VA Central Office.*fn1

(Compl. ¶ 15.) Plaintiff also asked that the fees associated with his request be waived because he intended to use the information as part of his research regarding "training and career planning and advancement" within the ITC, and would not use it for commercial purposes. (Id.)

Defendant's FOIA officer at the ITC responded to plaintiff by letter dated February 20, 2007, stating that the fee for his request was $1,033.90, and it would not be waived because plaintiff's request did not meet the VA's criteria for a public interest fee waiver as set forth in 38 C.F.R. § 1.555(f). (Pl.'s Statement of Material Facts ["Pl.'s Facts"] ¶ 6.)

Plaintiff replied that he was unable to pay the full fee, but could pay one-third of the fee, or $344.63. (Pl.'s Facts ¶ 7.) In exchange, defendant offered to grant plaintiff a portion of his original FOIA request.*fn2 (Def.'s Facts ¶ 7; Def.'s Mot. for Summ. J. ["Def.'s Mot."], Attach. 1 at 9.) Plaintiff rejected this offer and instead provided additional information in support of his fee waiver request. (Pl.'s Facts ¶ 9.) Plaintiff stated that he had contacted Temple University's School of Business and Management to assist him in analyzing the data requested in accordance with professional statistical standards, and that once he had completed the statistical reports, he would share them with a broad audience, including congressional representatives, civil rights organizations, labor organizations, journalists, and his fellow VA co-workers. (Id.; Def.'s Mot., Attach. 1 at 10.)

Defendant again denied plaintiff's request for not meeting the VA's requirements for a fee waiver. (Pl.'s Facts ¶ 10; Def.'s Mot., Attach. 1 at 11.) On October 19, 2007, plaintiff appealed this decision to defendant's Office of the General Counsel. (Pl.'s Facts ¶ 11; Def.'s Mot, Attach. 1 at 12.) In his appeal, plaintiff claimed that he intended to use the requested information to evaluate whether there were "any significant racial training and travel disparities" within the ITC. (Def.'s Mot., Attach. 1 at 13.) Plaintiff stated that he had worked for the ITC for more than 30 years and was currently a Senior Information Technology Specialist in which capacity he had, inter alia, served as the "lead technical consultant of numerous major VA technical projects;" researched and implemented "new areas of inter-connectivity, interoperability or system integration;" and participated in the "evaluation, analysis, and formulation of policy and procedures to include assurance of optimum response time in transaction processing." (Id.) Plaintiff also stated that he was a permanent member of the National Association for the Advancement of Colored People Federal Sector Task Force on Discrimination in the Federal Government ("NAACPFSTF"), and he had previously analyzed FOIA information concerning racial disparities within other federal agencies, including the Department of the Army. (Id.) Finally, plaintiff described his intention to share the results of his analysis with federal labor unions such as the American Federation of Government Employees ("AFGE"); congressional committees that oversee federal agencies; civil rights organizations such as the NAACP; and national news outlets including the Federal Times. (Id.)

On March 26, 2008, defendant's General Counsel issued a final administrative decision denying plaintiff's fee waiver request because the records requested did not identify the race or ethnicities of the ITC's employees, and thus would not significantly increase the public's understanding of racial disparities in training and travel within the ITC. (Def.'s Mot., Attach. 1 at 15-16.) Defendant also found that plaintiff had not demonstrated that he was able to evaluate, analyze, and present the voluminous materials requested in a form understandable to the general public. (Id.)

Plaintiff asked defendant to reconsider its decision, and by letter dated June 23, 2008, he submitted additional information regarding his ability to extract racial trends from the records requested, analyze complex data and disseminate it.*fn3 (Pl.'s Facts ¶ 14; Def.'s Mot., Attach. 1 at 17-23.) Defendant's Assistant General Counsel responded that the agency's decision on March 26, 2008, was final, and that in any case, the additional information was insufficient to warrant a fee waiver. (Pl.'s Facts ¶ 15; Def.'s Mot., Attach. 1 at 24.) Plaintiff then initiated this action, and the parties have cross-moved for summary judgment.



Summary judgment is appropriate when the "pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c).*fn4 A fact is material if it "might affect the outcome of the suit under the governing law," and a dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Here, there is no genuine dispute of material fact, and indeed, "FOIA cases are typically and appropriately decided on motions for summary judgment." In Defense of Animals v. Nat'l Inst. of Health, 543 F.Supp.2d 83, 93 (D.D.C. 2008) ...

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