United States District Court, District of Columbia
S. CHUTKAN United States District Judge.
National Security Counselors (“NSC”), Jeffrey
Stein, and Truthout initiated this action, pursuant to the
Freedom of Information Act (“FOIA”), 5 U.S.C.
§ 552, challenging certain fee-related policies and
determinations of two components of the Department of Justice
(“DOJ”)-the Federal Bureau of Investigation
(“FBI”) and the Civil Division
(“Civil”). Before the court are Defendant's
Renewed Motion for Summary Judgment (ECF No. 34 (Def. Mem.))
and Plaintiff Jeffrey Stein's Cross-Motion for Summary
Judgment (ECF No. 40 (Pl. Mem. & Opp'n)). Upon
consideration of the parties' filings, and for the
reasons stated herein, the court will GRANT Defendant's
motion and DENY Plaintiff Stein's motion.
facts of this case are set forth in more detail in the
court's February 18, 2015 Memorandum Opinion regarding
Defendant's Motion for Summary Judgment and
Plaintiffs' Cross-Motion for Partial Summary Judgment or,
in the Alternative, Discovery. ECF No. 27 (Mem. Op.). In that
opinion, this court granted Defendant's motion, denied
Plaintiffs' motion, and dismissed Plaintiffs'
four-count Complaint in its entirety. Mem. Op. at 25; see
also ECF No.28 (Order, Feb. 18, 2015). Most relevant to
the parties' current cross-motions, the court found that
“the law and the undisputed facts” entitled
Defendant to summary judgment on Count III of Plaintiffs'
Complaint. Mem. Op. at 14-15.
Count III, Plaintiffs challenged the FBI's interim
release policy, which requires the electronic production of
medium to large FOIA document requests on multiple CD-ROMs.
See ECF No. 1 (Compl.) ¶¶ 41-67.
Plaintiffs alleged that the FBI's practice of producing
electronic documents in increments of 500 pages per CD, and
at a cost of $15 per CD, results in excessive fees for FOIA
requesters in violation of FOIA's fee provisions.
See Compl. ¶ 64. In its February 18 opinion,
this court found that the FBI's interim release policy,
including its fee structure, was “consistent with its
obligations under FOIA and applicable regulations.”
Mem. Op. at 14.
Stein appealed this court's decision on Count III, and
the D.C. Circuit found that the FBI's interim release
policy did “not result in a violation of FOIA's
mandate that agencies recover only ‘reasonable standard
charges.'” Nat'l Sec. Counselors v. United
States Dep't of Justice, 848 F.3d 467, 472 (D.C.
Cir. 2017). However, the Circuit found that there remained
“a genuine issue, foreclosing the entry of summary
judgment, concerning whether the fees assessed by the agency
exceeded its direct costs” of producing CDs.
Id. at 472-73.
Court noted that the FBI estimated its direct costs to
produce one CD to be approximately $39.50-the amount it costs
to employ an FBI employee to run the FBI's 50-minute
security review program (the “Integrity program”)
prior to transferring documents onto a CD. See Id.
at 471; see also ECF No. 12-2 (First Hardy Decl.)
¶ 33(d) n.18. The Court found that summary judgment was
not warranted on the record before it because it was unclear
whether the FBI appropriately based its direct costs on the
labor costs associated with running the 50-minute Integrity
program, given the lack of information regarding
“whether, and to what extent, the 50-minute period for
running the [Integrity] program involve[d] employee
engagement rather than idle time.” Id. at 472.
Accordingly, the Court vacated this court's “grant
of summary judgment with respect to Stein's claim”
on Count III and remanded the case “for further
proceedings consistent with [its]
opinion.” Id. at 475.
judgment is appropriate where there is no genuine issue of
material fact and the movant is entitled to judgment as a
matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986); Waterhouse v.
Dist. of Columbia, 298 F.3d 989, 991 (D.C. Cir. 2002).
In determining whether a genuine issue of material fact
exists, the court must view all facts in the light most
favorable to the non-moving party. See Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986). A fact is material if “a dispute over it
might affect the outcome of a suit under governing law;
factual disputes that are ‘irrelevant or
unnecessary' do not affect the summary judgment
determination.” Holcomb v. Powell, 433 F.3d
889, 895 (D.C. Cir. 2006) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). An issue is
genuine if “‘the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.'” Id. (quoting Anderson,
477 U.S. at 248). The party seeking summary judgment
“bears the heavy burden of establishing that the merits
of his case are so clear that expedited action is
justified.” Taxpayers Watchdog, Inc. v.
Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987) (citing
Walker v. Washington, 627 F.2d 541, 545 (D.C. Cir.
cases are “typically and appropriately . . . decided on
motions for summary judgment.” Gold Anti-Trust
Action Comm., Inc. v. Bd. of Governors of Fed. Reserve
Sys., 762 F.Supp.2d 123, 130 (D.D.C. 2011) (citation
omitted). Upon an agency's request for summary judgment
on the grounds that it has fully discharged its FOIA
obligations, all underlying facts and inferences are analyzed
in the light most favorable to the FOIA requester; only after
an agency proves that it has fully discharged its FOIA
obligations is summary judgment appropriate. Moore v.
Aspin, 916 F.Supp. 32, 35 (D.D.C. 1996) (citations
permits agencies to charge FOIA requesters “only the
direct costs of search, duplication, or review.” 5
U.S.C. § 552(a)(4)(A)(iv). On appeal, the D.C. Circuit
found there was a genuine issue concerning whether the
FBI's $15 fee per CD complies with this provision, and
ordered Defendant to “provide a sufficient factual
basis upon which the district court can make the
determination that the fees assessed under its interim
release policy do not exceed direct costs.”
Nat'l Sec. Counselors, 848 F.3d at 473. The
Circuit stated that it did not “question the
possibility that the agency will adequately demonstrate on
remand that the FBI's labor (or other direct) costs under
the interim release policy in fact equal or exceed $15 per
CD, ” and noted that “the agency might be able to
do so in short order.” Id. This court finds
that it has.
support of its Renewed Motion for Summary Judgment, Defendant
submitted a detailed, eight-page declaration from David M.
Hardy, Section Chief of the Record/Information Dissemination
Section in the FBI's Records Management Division. ECF No.
34-2 (Third Hardy Decl.). In his declaration, Hardy explains
that the Integrity program enables the FBI to move records
“from its FOIA Document Processing System
(‘FDPS'), which is a classified computer network on
which records responsive to FOIA requests are processed, to a
non-classified computer network from which a CD can be
prepared for release.” Third Hardy Decl. ¶ 6. He
further explains that the three major steps of the Integrity
program process-document conversion, Integrity scan, and
resolution of issues-all require employee engagement.
Id. At the document conversion step, for example,
FBI employees are solely responsible for converting documents
released from FDPS into single-page text documents in
preparation for the Integrity program's security scan.
Id. ¶ 7. Such a conversion requires FBI
employees to (1) export the released documents as multi-page
TIF files, (2) rename the released documents and save them to
a common shared drive, (3) convert each page of the released
documents into a single-page text document, and (4) save each
converted page onto the shared drive. Id. This level
of employee engagement, Hardy explains, continues for the
duration of the 50-minute Integrity program process. See
Id. ¶¶ 8-10 (providing a detailed account of
employee engagement at the Integrity scan and issue
resolution steps of the process). Hardy asserts that it this
level of engagement that justifies and “underpin[s] the
$15 assessed fee.” Id. ¶ 13.
Hardy Declaration sufficiently demonstrates that FBI
employees are actively engaged for the duration of the
Integrity program process, and in turn that the FBI
justifiably calculates its direct costs for CD production
based on the labor costs associated with conducting the
50-minute program. The FBI calculates its direct labor costs
to be between $24.50 and $46.00 per CD, id. ¶
14, which certainly exceeds the $15 it charges per CD.
Accordingly, the court finds that the FBI's interim
release policy, as implemented through the Integrity program,
does not ...