FOIA Update: Supreme Court Declines Fee Case

January 1, 1990

FOIA Update
Vol. XI, No. 1
1990


Supreme Court Declines Fee Case

The United States Supreme Court has declined to review the first case presented to it under the special fee provisions of the Freedom of Information Reform Act of 1986.

On March 19, the Court denied the government's certiorari petition in Department of Defense v. National Security Archive, 58 U.S.L.W. 3596 (U.S. March 19, 1990) (No. 89-1204), which presented an issue of the definition of "news media representative" under the FOIA fee structure established by Congress in 1986. Under the FOIA Reform Act, such definitions are set forth in the regulations of individual agencies in accordance with governmentwide fee guidelines issued by the Office of Management and Budget.

The case arose when the National Security Archive -- a private research institute and library that compiles and sells indexed sets of government documents obtained partly through the FOIA -- unsuccessfully asked the Department of Defense to treat it as an "educational institution" and as a "representative of the news media" under its regulations. Pursuant to the FOIA Reform Act, FOIA requesters in either such category are entitled to request records without being assessed any search fee.

After the district court upheld the Department of Defense's position, the D.C. Circuit Court of Appeals ruled in the National Security Archive's favor on the "news media" issue, National Security Archive v. Department of Defense, 880 F.2d 1381 (D.C. Cir. 1989), reh'g en banc denied, No. 88-5217 (D.C. Cir. Sept. 26, 1989). While it found that the Archive was not an "educational institution" under the FOIA Reform Act, the D.C. Circuit held that the Archive's publication activities qualify it for "news media" status. See FOIA Update, Summer 1989, at 7. Under the D.C. Circuit's decision, the National Security Archive will now be entitled to request records without having to pay search fees under the FOIA in connection with its publication activities.

The Supreme Court generally accepts only a small percentage of cases for certiorari review. Even where the Solicitor General seeks such review, as here, it is denied by the Court approximately 20% of the time. This is the third instance in which the Court, over the years, has not granted the government's petition for review in a FOIA case.

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