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Public Employees for Environmental Responsibility v. U.S. Department of Commerce National Oceanic and Atmospheric Administration

United States District Court, District Circuit

September 11, 2013



AMY HERMAN JACKSON United States District Judge

Plaintiff Public Employees for Environmental Responsibility ("PEER") brings this lawsuit against defendant United States Department of Commerce, National Oceanic and Atmospheric Administration, National Marine Fisheries Service ("NMFS"), alleging that NMFS violated the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (2006), by improperly denying PEER'S request for a fee waiver. Compl.¶31. PEER seeks an injunction compelling NMFS to grant the fee-waiver request and release the documents sought. Compl. at 9. The parties have cross-moved for summary judgment. See Def's Mot. for Summ. J. [Dkt. # 12] ("Def.'s Mot."); PL's Mot. for Summ. J. [Dkt. #13] ("PL's Mot."). The Court will grant summary judgment in favor of NMFS because, although PEER has standing to bring this claim, the Court finds on the merits that NMFS's denial of the fee-waiver request was proper because there is no sufficient public interest in disclosure of the requested information.


A. Factual Background

PEER is a non-profit, public-interest organization that focuses on public policy issues related to the environment, public lands, and natural resources management. Compl. ¶ 12. On December 14, 2004, PEER electronically submitted a request under FOIA (FOIA Request No. 2012–00249) and the Privacy Act to NMFS, seeking documents related to a former observer for the NMFS observer program, Jonathan Lee Combs.[1] See AR 00001–08; Compl. ¶ 21. The Complaint alleges that between 2006 and 2011, Combs was contracted as a “Fisheries Observer” for the NMFS Pelagic Observers Program (“POP”). Compl. ¶ 15. On July 29, 2011, Combs was informed by e-mail that NMFS would no longer be using his services because “of difficulties in working with him.” Compl. ¶ 17. The termination e-mail Combs received referenced a prior email that Combs had sent to an NMFS program manager regarding what Combs saw as potential legal violations committed by NMFS. Compl. ¶ 17. PEER claims that, prior to sending the termination e-mail, NMFS did not advise Combs that his performance was not adequate or warn Combs that he would be terminated, which violates POP’s performance evaluation protocols for terminating an observer. See Compl. ¶¶ 18–20.

The FOIA request sought: (1) all evaluation, incidents or other files on Combs maintained within NMFS; (2) all communications with observer contractors or other third parties that mention Combs; and (3) any documents or instructions that reference Combs. AR 00002; Compl. ¶ 21. Attached to the request was a sworn declaration signed by Combs that authorized the release to PEER of any information responsive to the FOIA request that concerned Combs. AR 00006. Combs’s declaration stated that PEER had filed the FOIA request “on my behalf.” Id. The request itself stated that PEER, “on behalf of Dr. Charles Monnett (see attached Privacy Act statement and authorization to release information to PEER from Mr. Jonathan Lee Combs), is requesting information related to [Combs’] assignments, evaluation and other pertinent matters.” AR 00002.[2] The request was signed by PEER Executive Director Jeff Ruch and was sent from Ruch’s official PEER e-mail address directly to NMFS FOIA Officer Michael Justen. AR 00001. PEER also sought a fee waiver and provided the following justification for its fee-waiver request:

PEER requests that all fees be waived because disclosure of the information is in the public interest . . . and is not primarily in the commercial interest of the requester:
1. The records concern the operations and activities of the Government. The FOIA request is, by its terms, limited to identifiable activities of NMFS employees, contractors and subcontractors.
2. The disclosure of the requested records is likely to contribute to public understanding of these operations and activities.
The requested material concerns how agency evaluation of fishing fleet observer performance as well as whether there has been retaliation against an observer for raising potential violations of law or regulation [sic]. Our FOIA request . . . will generate the paper trail enabling the general public to understand precisely how NMFS operates its observer program.
3. The release of these requested records will contribute significantly to public understanding of the governmental activities.
While it is difficult to warrant in advance to seeing it just how [sic] significant the information will be to the general public, the nature of the information should shed direct light on how well the NMFS observer program works in accomplishing its central resource protection mission.
While a certain segment of the population has a keen interest in the sustainability of fishing harvests . . . as well as the negative impacts of fishing practices . . . the broader public interest served by this request concerns whether the NMFS fishing observer program is being mismanaged.
In addition, the general public has a keen interest in whether observers are being pressured to overlook violations or are punished if they report [the] same…
PEER intends to provide the requested information to members of Congress and its relevant committees. We also intend to disseminate it to the general public though [sic] – Release to the news media; Posting on the PEER webpage which draws between 1, 000 and 10, 000 viewers per day; and Publication in the PEER newsletter which has a circulation of approximately 20, 000 . . . .

AR 00013–14 (citations and formatting omitted).

NMFS timely acknowledged receipt of plaintiff’s FOIA request, including the fee-waiver request. AR 00015. NMFS denied PEER’s fee-waiver request in a letter dated April 4, 2012. This letter was addressed to PEER Executive Director and, other than a passing reference to the documents themselves, did not mention Combs or address him as the party requesting the documents. AR 00007–08; Compl. ¶ 23. NMFS denied the fee waiver because it “[found] it unlikely that records related to a single observer would significantly contribute to the public’s understanding of the larger observer program.” AR 00008; Compl. ¶ 23.

NMFS sent PEER a fee estimate letter, which was dated April 25, 2012. Ex. 1 to Rilling Decl. [Dkt. # 12-3]. In this letter and in all communications between NMFS and PEER that occurred prior to this lawsuit and that are included in the administrative record, NMFS acknowledged PEER as the party requesting the documents. AR 00007–11, 00015, 00027–28; Ex. 1 to Rilling Decl. On November 6, 2012, as part of the pleadings in this lawsuit, a representative of NMFS stated that “[t]he letter dated April 25, 2012 [sic] providing Plaintiff with a fee estimate misidentified ...

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