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Jim Bensman v. National Park Service

August 10, 2011

JIM BENSMAN, PLAINTIFF,
v.
NATIONAL PARK SERVICE, DEFENDANT.



The opinion of the court was delivered by: James E. Boasberg United States District Judge

MEMORANDUM OPINION

Plaintiff Jim Bensman brought this action against Defendant National Park Service under the Freedom of Information Act. Bensman alleges that NPS has violated FOIA by improperly denying his request for a public-interest fee waiver; he also claims that NPS failed to adhere to FOIA's 20-workday time limit for reaching a determination on his request. Both parties now move for summary judgment under Federal Rule of Civil Procedure 56(a). Because the Court finds that NPS exceeded its statutory time limit and thus cannot assess fees here, it need not reach the merits of the public-interest dispute.*fn1

I. Background

Plaintiff, as a hobby, uses topographical data to make electronic maps for global-positioning-system devices. Pl. Mot. at 1. After creating his maps, Plaintiff then makes them available at his website for visitors to download and use free of charge. Id., Compl., ¶ 4. The data Plaintiff uses to create his GPS maps is typically obtained from "numerous . . . federal, state, and local agencies by simply asking for it and explaining what it [will] be used for." Id. at 2.

Bensman became interested in acquiring similar data for lands maintained by Ozark National Scenic Riverways, a bureau managed by NPS, which is housed within the Department of the Interior. See Compl., ¶ 8. Plaintiff subsequently had phone and email conversations with NPS employees regarding the park data, but was unable to procure the desired information. Id., ¶ 7. After these unsuccessful attempts to have the data released to him, Bensman submitted a formal FOIA request to NPS on November 17, 2009, for "[a]ny and all trail data" and "[a]ny data for building locations, put ins, camping areas, parking, etc. that the NPS may have" for the relevant parklands. App. to Pl. Mot. at 1-2 ("Request"). The Request also sought a public-interest fee waiver for the records under 5 U.S.C. § 552(a)(4)(A)(iii), which requires an agency to "furnish[] [records] without any charge or at a [reduced] charge," where a requester demonstrates that "disclosure of the information . . . 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." In support of his fee-waiver request, Bensman "explain[ed] that he had no commercial interest in the files, and that releasing them served a public interest since he provides the maps he makes with this information to thousands of people free of charge." Pl. Mot. at 3.

Defendant responded on December 4, 2009, acknowledging receipt of Plaintiff's November 17 Request, assigning him a Request Number, and addressing the issue of a public-interest fee waiver. App. to Pl. Mot. at 5-6 ("Letter"). The Letter asserted that the information Plaintiff had provided in connection with his fee-waiver request "is not sufficient justification to qualify for a fee waiver under the Department of the Interior's (DOI) FOIA regulations," and it referenced 43 C.F.R. Part 2, Appendix D. Id. at 5. Defendant "agree[d] that the records [Plaintiff requested were] not primarily in [his] commercial interest," but asked him to "provide additional information to justify [his] fee waiver request." Id. at 5-6. The Letter included suggestions on how Bensman could better formulate his fee-waiver request. Id. In pertinent part, the Letter asked him to:

1) Explain how the records you seek will be meaningfully informative with respect to the agency's operations and activities. Records must be sought for their informative value with respect to specifically identified government operations or activities; a request for access to records for their intrinsic informational content alone would not satisfy this threshold consideration.

2) Explain how and to whom you intend to disseminate the information and how you intend to use the information to contribute to public understanding. Passively making records available to anyone who might seek access to them does not meet the burden of demonstrating with particularity that the information will be communicated to the public.

3) Explain how release of the requested records will contribute significantly to public understanding. For example, is the information being disclosed new; does the information confirm or clarify data released previously; and is the information publicly available. Explain how disclosure will increase the level of public understanding that existed prior to disclosure.

Id. Such additional information would "assist [NPS] in making a decision on [Bensman's] request for a fee waiver[.]" Id. at 5. The Letter finally directed Bensman to "provide [such] additional information to justify [his] fee waiver request or written assurance of [his] willingness to pay all fees (or specify the maximum amount that [he is] willing to pay for the bureau to process [his] request)." Id. at 6. "This [would] allow [NPS] to begin processing [Bensman's] request for records while considering [his] fee waiver request." Id.

Three days later, on December 7, 2009, Plaintiff replied to NPS's Letter. App. to Pl. Mot. at 7 ("Response"). The Response expressed Plaintiff's frustration over the "time and government resources [he believed were] being wasted" handling his request, but he agreed to "answer [NPS's] questions anyway." Id. Bensman accordingly expanded his earlier fee-waiver justification to include:

1) The NPS builds and maintains trails and other facilities. The data I am seeking will inform the location of trails and other NPS facilities so the taxpayers can find and enjoy what their tax dollars paid for.

2) As I pointed out in my request, I do more than make the data passively available. I post it on the Internet where thousands of people have already downloaded it. When I update the maps with new data, I send out emails letting people know the new maps are available. Since thousands of people have already downloaded and installed the maps on their GPS, there is an established record of my disseminating the data.

3) It will significantly increase public understanding as the public will have the ability to see where the trails their tax dollars have paid for are located when using their Garmin GPS.

Id.

Defendant sent a second letter to Plaintiff on January 7, 2010, indicating that "a recommendation on [his] fee waiver request was forwarded to the Department of the Interior (DOI) Solicitor s [sic] Office in Denver." App. to Pl. Mot. at 8 ("Initial Denial"). The correspondence further explained that the Solicitor's Office had "not yet completed review of [NPS's] recommendation due to the need to further research fee waiver regulations and case law"; however, Defendant "hope[ed] to have a final determination . . . within the next 5 workdays[,]" and advised Plaintiff of his "right to treat [the] delay as a denial of [his] request." Id. Bensman submitted an appeal of the Initial Denial on January 10, 2010, in which he complained about the delay and accused NPS of "violat[ing] FOIA by not responding in the time required" by 5 U.S.C. § 552(a)(6)(A)(i). App. to Pl. Mot. at 10 ("First Appeal"). He also referenced 5 U.S.C. § 552(a)(4)(A)(viii), arguing that NPS was required to release the relevant records to him at no cost because it had not reached a determination within FOIA's 20-working-day time limit. Id. at 10-11.

Seven months later, on August 17, 2010, Defendant sent two additional documents to Plaintiff. The first formally denied Plaintiff's November 17 Request because NPS "[did] not believe [Plaintiff] provided sufficient substantiation that release of the requested records is likely to contribute significantly to the public understanding of the operations and activities of the Government." App. to Pl. Mot. at 12 ("Determination"). The Determination also informed Bensman of his right to appeal the denial of his fee-waiver request and included a $1,387.20 fee estimate and additional instructions if he still wished to obtain the relevant records. Id. at 13.

The second August 17 communication from NPS denied Plaintiff's First Appeal. App. to Pl. Mot. at 15-17 ("First Appeal Denial"). The First Appeal Denial responded to Bensman's claim that NPS was required to release the requested records to him at no cost for allegedly failing to adhere to FOIA's 20-working-day time limit. Id. NPS dismissed Bensman's argument, asserting that "the 20 workday time limit only applies to those requests that are made in accordance with an agency's published FOIA regulations," and "does not begin to run until all issues regarding processing fees are resolved." Id. at 16. "In order to resolve all issues regarding fees," the First Appeal Denial averred, "the regulations require a FOIA requester to either provide adequate justification to support his entitlement to a fee waiver or provide his written assurance that he will pay the fees associated with processing the FOIA request." Id.

According to NPS, Bensman had provided neither "adequate justification to support [his] entitlement to a fee waiver," nor "written assurance that [he] would pay the fees associated with processing the FOIA request." Id. "Because of this," the Denial declared, "all issues regarding fees have not been resolved . . . ." Id. NPS further reasoned that Bensman did "not submit[] a request 'in accordance with an agency's published FOIA regulations,'" and thus FOIA's time limit "does not apply to [his] November 17, 2009, FOIA request." Id. (no citation in original). The First Appeal Denial concluded, on this basis, that "the section of the FOIA that precludes an agency from assessing search fees if it fails to comply with [FOIA's] time limit also does not apply" to Bensman's request. Id.

Plaintiff subsequently filed an additional appeal challenging NPS's Determination on September 7, 2010. App. to Pl. Mot. at 18-21 ("Second Appeal"). Bensman's Second Appeal first challenged NPS's substantive arguments for denying his fee-waiver request; it then reasserted his position that "FOIA prohibits [charging him fees] due to [NPS's] failure to comply with deadlines." Id. at 19. Plaintiff also argued that NPS failed to rule on his First Appeal within the statutory time limit, thus constituting an additional unmet deadline for which search fees could not be assessed under FOIA. Id. The Second Appeal further expressed Bensman's confusion regarding NPS's denial of his First Appeal because it "appear[ed] to be saying this 20 working day period began [the day NPS] denied [his] request." Id. at 20. Plaintiff again referenced 5 U.S.C. § 552(a)(6)(A)(ii) in support of his position that NPS exceeded FOIA's time limits in reaching determinations on both his Request and First Appeal. Id. Bensman asked NPS to "please clarify" whether his interpretation of the First Appeal Denial was correct, in case he was "missing some important point." Id.

NPS denied Plaintiff's Second Appeal on October 12, 2010. App. to Pl. Mot. at 22-30 ("Second Appeal Denial"). While the Second Appeal Denial may have discussed the denial of Plaintiff's request for a fee waiver, certain issues regarding the duration and cost of search time, Bensman's allegation that FOIA prohibits charging him fees, and an issue concerning NPS's obligation to provide Plaintiff with information regarding judicial review, the Denial failed to address Bensman's central argument regarding time limits, noting cursorily that "[t]he Department rendered its decision on that appeal on August 17, 2010, and finds no basis to ...


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