United States District Court, District of Columbia
E. BOASBERG UNITED STATES DISTRICT JUDGE
saga of pro se Plaintiff Gregory Bartko's
Freedom of Information Act requests continues. This time
around, Plaintiff and Defendant Executive Office for United
States Attorneys are deadlocked on the issue of a fee waiver
regarding his FOIA Request No. 2014-486. Bartko now moves for
partial summary judgment (mislabeled as a cross-motion),
asserting that he deserves a public-interest fee waiver for
the same reasons the D.C. Circuit granted him one for a
previous request in Bartko v. U.S. Department of
Justice, 898 F.3d 51, 75 (D.C. Cir. 2018). Defendant
responds with a Cross-Motion also seeking partial summary
judgment, contending that Bartko has neither properly sought
a waiver nor deserves one. As the Court disagrees, it will
grant Plaintiff's Motion.
Opinion will limit its recitation of this case's
extensive procedural history to the facts relevant to fees.
On September 19, 2013, Plaintiff, who is currently
incarcerated for fraud, filed a voluminous FOIA request,
see ECF No. 1 (Compl.), ¶ 6, one offshoot of
which was Request No. 2014-486. See ECF No. 58 (Pl.
MSJ), Exh. D (Dec. 12, 2013, Def. Letter). On April 1, 2014,
EOUSA informed him that it would provide the documents
responsive to this request - concerning “all
information about [Bartko] in criminal case files” -
for an advance payment of $2, 618. See Pl. MSJ, Exh.
D (Dec. 12, 2013, Def. Letter); Pl. MSJ, Exh. E (Apr. 1,
2014, Def. Letter). It also denied his request for a waiver
on the ground that it was predicated solely upon
Plaintiff's in forma pauperis status.
See Pl. MSJ, Exh. F (May 14, 2014, Def. Letter).
This denial was understandable because indigent status alone
does not entitle an individual to a fee waiver. See Ely
v. U.S. Postal Service, 753 F.2d 163, 165 (D.C. Cir.
1985). Such a fee waiver is warranted, conversely, if the
information sought is in the public interest. See 5
U.S.C. § 552(a)(4)(A)(iii). Bartko's subsequent
appeals switched course to expressly raise this basis to
avoid fees, see Pl. MSJ, Exh. I (Apr. 27, 2014, Pl.
Appeal Letter) at 2, 5, and he repeatedly mentioned it
through his succeeding communications with EOUSA and the
Office of Information Policy. See ECF No. 12 (Def.
Answer), Exh. L (Nov. 11, 2014, Pl. Appeal Letter) at 2, 5;
Answer, Exh. O (Feb. 20, 2015, Pl. Letter) at 2. After
several years of back and forth, Plaintiff filed this suit on
April 27, 2017.
September 25, 2018, in the course of resolving multiple
issues between the parties, the Court addressed Request No.
2014-486. It concluded that Bartko was entitled to judicial
review of his fee-waiver request because he had satisfied
FOIA's exhaustion requirement. See Bartko v. U.S.
Dep't of Justice, 2018 WL 4608239, at *12-14 (D.D.C.
Sept. 25, 2018). The only issue the Court left open was
whether a waiver was warranted on the merits, and it asked
for briefing on that question. Id. at *14. Following
that determination, EOUSA agreed to re-evaluate the propriety
of a fee waiver. See ECF No. 53 (Oct. 19, 2018,
Status Report) at 2. On November 2, 2018, it denied the
waiver, asserting that Bartko had not properly sought it
through the administrative process - i.e., his
request was based solely upon his in forma pauperis
status rather than public interest - and that the information
would not contribute to a significant public understanding as
required by 5 U.S.C. § 552(a)(4)(A)(iii). See
Pl. MSJ, Exh. A (Nov. 2, 2018, Def. Letter). The parties have
now briefed the correctness of such a determination.
cases typically and appropriately are decided on motions for
summary judgment. See Summers v. DOJ, 140 F.3d 1077,
1079-81 (D.C. Cir. 1998). Summary judgment may be granted if
“the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment
as a matter of law.” Fed.R.Civ.P. 56(a); see also
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48
(1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C.
Cir. 2006). A fact is “material” if it is capable
of affecting the substantive outcome of the litigation.
See Liberty Lobby, 477 U.S. at 248;
Holcomb, 433 F.3d at 895. A dispute is
“genuine” if the evidence is such that a
reasonable jury could return a verdict for the non-moving p a
rt y. See Scott v. Harris, 550 U.S. 372, 380 (2007);
Liberty Lobby, 477 U.S. at 248; Holcomb,
433 F.3d at 895. “A party asserting that a fact cannot
be or is genuinely disputed must support the assertion by . .
. citing to particular parts of materials in the
record” or “showing that the materials cited do
not establish the absence or presence of a genuine dispute,
or that an adverse party cannot produce admissible evidence
to support the fact.” Fed.R.Civ.P. 56(c)(1). The moving
party bears the burden of demonstrating the absence of a
genuine issue of material fact. See Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986).
asserts that the documents are in the public interest and
that 5 U.S.C. § 552(a)(4)(A)(iii) thus mandates a fee
waiver. Defendant rejoins that he never made a proper request
at the administrative level. In the alternative, EOUSA
asserts that disclosure of the records is not in the
public interest because they will not contribute to a
significant public understanding of government operations.
The Court will address these positions in turn.
Exhaustion & Administrative Record
an earlier holding to the contrary by this Court, arguments
concerning administrative exhaustion still appear to linger
in Defendant's briefs. See ECF No. 66 (Def. MSJ)
at 8-9. Indeed, EOUSA believes that “[t]he fatal defect
in Plaintiff's argument is that he does not cite any
evidence that he expressly sought a fee waiver outside of
litigation” - i.e., through the administrative
process. Id. at 9 (internal quotation marks
omitted). To the extent that this is an exhaustion argument,
the Court laid this dispute to rest when it concluded that
“FOIA's exhaustion requirement” did not bar
Plaintiff's suit and requested further briefing only on
the merits of the fee waiver. See Bartko,
2018 WL 4608239, at *12. Defendant acknowledged as much when
it reported to the Court on its reopening of the fee-waiver
request. See Oct. 19, 2018, Status Report at 2. If
conversely, Defendant is contending that the administrative
record does not support Plaintiff, it is mistaken there, too.
As explained in the Background, supra, Bartko has
cited the public interest in his efforts outside of
litigation to obtain a fee waiver. The Court will thus
proceed to the merits.
only real question remaining in this dispute, consequently,
is whether disclosure of these documents is in the public
interest or not. As previously mentioned, administrative
agencies can charge requesters reasonable fees for processing
FOIA requests. See 5 U.S.C. § 552(a)(4)(A)(i).
Such fees may be waived or reduced under 5 U.S.C. §
552(a)(4)(A)(iii) if a requester shows that “disclosure
of the information is in the public interest because it 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.”
The burden is on the requester to show that her fee-waiver
request satisfies the statutory requirements and that she
made her request “with reasonable specificity and based
on more than conclusory allegations.” Judicial
Watch, Inc. v. Rossotti, 326 F.3d 1309, 1312 (D.C. Cir.
2003) (internal citations and quotations marks omitted).
These fees, however, should “not be used as an obstacle
to disclosure of requested information.” Long v.
Dep't of Homeland Sec., 113 F.Supp.3d 100, 103
(D.D.C. 2015) (quoting Eudey v. CIA, 478 F.Supp.
1175, 1177 (D.D.C. 1979)). Fee waiver requests, accordingly
are liberally construed in favor of the requester. See
Nat'l Sec. Counselors v. U.S. Dep't of Justice,
848 F.3d 467, 473 (D.C. Cir. 2017); Citizens for
Responsibility & Ethics in Washington v. U.S. Dep't
of Educ., 593 F.Supp.2d 261, 268 (D.D.C. 2009).
acknowledges that disclosure is not sought for Bartko's
commercial interest. See ECF No. 66-3 (Def. Response
to Pl. Statement of Facts) at 2. Instead, it disagrees that
this information will contribute to a significant public
understanding. See Def. MSJ at 10. In order for a
request to meet the “public understanding”
requirement, it must fulfill four criteria: “(1) the
request must concern the operations or activities of
government; (2) the disclosure must be ‘likely to
contribute' to an understanding of government operations
or activities; (3) disclosure must contribute to an
understanding of the subject by the public at large; and (4)
disclosure must be likely to contribute significantly to such
public understanding.” Judicial Watch, Inc. v. U.S.
Dep't of ...