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Fees and Fee Waiver

Court of Appeals Decisions

Watkins v. U.S. Bureau of Customs & Border Protect., No. 09-35996, 2011 WL 1709852 (9th Cir. May 6, 2011) (Walter,J.). Holding: Affirming the district court's decision that Exemption 4 applies to the requested material, but concluding that CBP has waived that protection; and reversing the district court's determination that DHS's regulations control, rather than CBP's regulations, for FOIA fee purposes. The Ninth Circuit reverses the district court's decision that DHS's FOIA fee regulations apply to the requests, rather than CBP's regulations. DHS's FOIA regulations "apply to all components of DHS (which includes CBP)," "'[e]xceptto the extent a Department component has adopted separate guidance under the FOIA.'" CBP has separate fee provisions and the Circuit finds that since the time that it promulgated the regulations, "CBP has continued to keep these regulations active by amending them and never repealing them." Moreover,"[r]egardless of the district court's assertion that the revisions were merely technical . . . , they were revisions that demonstrate that the fee regulations are still valid." Accordingly, the Circuit holds that CBP's regulations control and not those of DHS.

Reynolds v. Att'y Gen. of the United States, No. 09-3675, 2010 WL 3370280 (2d Cir. Aug. 26, 2010) (unpublished disposition). The court grants the agency's motion for summary affirmance, concluding that "the District Court correctly upheld the denial of [plaintiff's] fee waiver request by the [DOJ]." The court notes that the record shows that plaintiff "argued only that he should be granted the waiver because he could not afford the fees, and . . . that he did not mention his academic status or interest in publishing a scholarly article until he filed his complaint in the District Court."

District Court Decisions

ACLU of S. Cal. v. DHS, No. 11-10148, 2012 U.S. Dist. LEXIS 154893 (C.D. Cal. Oct. 25, 2012) (Wright, J.). Holding: Granting motion for summary judgment with regard to the adequacy of DHS's search and denying motion for summary judgment with regard to the adequacy of ICE's search. The court finds that plaintiff's motion for summary judgment with regard to defendants' denial of plaintiff's fee waiver request is moot. Defendants granted the request for a fee waiver after the filling of plaintiff's first amended complaint.

Venkataram v. OIP, No. 09-6520, 2012 WL 4120438 (D.N.J. Sept. 18, 2012) (Simandle, C.J.). Holding: Denying the plaintiff's motion for waiver of fees. "Although the records sought in this case clearly relate to government activity, and even assuming that disclosure of such records is likely to contribute to public understanding of government activity, the Court is convinced that disclosure primarily would benefit Plaintiff and not contribute significantly to public understanding of the U.S. Attorney's Office and the process by which it decides not to prosecute subjects of criminal investigations. Thus, Plaintiff does not satisfy the significant contribution element necessary to qualify for a fee waiver."

Monroe-Bey v. FBI, No. 11-1915, 2012 WL 4017729 (D.D.C. Sept. 13, 2012) (Collyer, J.). Holding: Granting defendant's motion for summary judgment. The court holds that the plaintiff fails to qualify for a waiver of fees in connection with his request. The court evaluates his eligibility in light of the four factors set forth in DOJ's regulations which govern the FBI's fee waiver analysis. It concludes that the FBI properly asserted that the plaintiff failed to meet the second through fourth requirements of the public interest prong because the requester has pointed to news articles showing that the information is "already in the public domain" and plaintiff "does not specifically state in his request to the agency or in his submissions to [the] Court how disclosure of the requested records would add anything new to the public's understanding of the operations of the federal government." The court also comments that the plaintiff cites the need for the public to know about the "operations and activities of the State of Maryland and the U.S. government agency employees responsible for conduct detrimental to equal justice" even though the request "'must concern identifiable operations or activities of the federal government." (emphasis in original).

The court also notes that the plaintiff has "not demonstrated his ability to 'effectively convey' the requested information to the public." Finally, the court concludes that disclosure is even "less likely to contribute to public understanding" given the plaintiff's "need for the records to prove his innocence – a theme throughout his fee waiver request."

Moore v. FBI, No. 11-1067, 2012 WL 3264566 (D.D.C. Aug. 13, 2012) (Kollar-Kotelly, J.). Holding: Dismissing complaint against the Executive Office of the President under Federal Rule of Civil Procedure 12(b)(6); granting, as conceded, the Criminal Division and U.S. Parole Commission's motions for summary judgment; and granting FBI and CIA's motions for summary judgment based on the adequacy of their searches and the CIA's assertion of the Glomar response in conjunction with Exemptions 1 and 3; and granting BOP and EOUSA's motions for summary judgment on the basis that plaintiff failed to exhaust his administrative remedies. The court concludes that plaintiff failed to exhaust his administrative remedies with respect to his requests to BOP and EOUSA where he did not indicate a willingness to pay assessed fees or agree to modify his request to reduce the fees. The court finds that, in both instances, "the Court has no role to play" because plaintiff's requests have not been processed and, consequently, there has been no improper withholding of records. With respect to plaintiff's request to BOP, the court notes that "[n]ow that plaintiff has indicated his willingness to pay the assessed fees [in the course of this litigation], the Court will assume that BOP will process [his] request in a timely manner without court supervision."

Miller v. DOJ, No. 05-1314, 2012 WL 2552538 (D.D.C. July 3, 2012) (Lamberth, J.). Holding: Concluding that plaintiff exhausted his administrative remedies with regard to fees assessed by the FBI; and granting defendant's renewed motion for summary judgment on the basis that it properly withheld certain information pursuant to Exemptions 1, 3, 5, 7(C), 7(D), 7(E) and 7(F). In response to defendant's exhaustion argument, the court finds that, under the DOJ's regulations which establish that requesters will not be charged for amounts under $14.00, "plaintiff did not owe defendant any fees at the commencement of this lawsuit" where his fees were under that threshold. Furthermore, the court determines that plaintiff's "non-payment following defendant's second release years into the litigation did not strip this court of subject matter jurisdiction, because the purposes of exhaustion were met and [the] particular administrative scheme was satisfied at the time plaintiff filed his complaint." As side issue, the court rejects plaintiff's contention that "he constructively exhausted his [administrative] remedies upon defendant's failure to release information in a timely fashion." Rather, the court notes that FOIA plaintiffs are required to exhaust administrative remedies where the agency responds to the FOIA request before litigation commences.

The court then determines that a FOIA plaintiff's failure to pay fees does not present a jurisdictional bar to judicial review. The court finds that, in this case, "plaintiff's non-payment of past fees does not thwart the purposes of exhaustion" set forth by the Supreme Court in Weinberger v. Salfi by "'preventing premature interferences with agency processes, . . . affording the parties and the courts the benefit of the agency's experience and expertise, [and] compiling a record which is adequate for judicial review.'" The court finds that "[t]his lawsuit was not a premature interference with agency processes," and "[i]n fact, it prodded the DOJ into making the appropriately extensive searches that it did not conduct prior to this suit being filed." Additionally, the court determines that here "the parties and the court have been afforded the agency's experience and expertise," noting that "[a]t no time has defendant contended that plaintiff's non-payment has been an impediment to its ability to provide its expertise in this matter." Lastly, the court finds that "plaintiff's non-payment did not preclude the compilation of an adequate record for the Court's review." The court notes that "[d]efendant provided responsive documents on two separate occasions without plaintiff's payment and continued to supplement the record regarding the FOIA exemptions it invoked throughout the litigation."

Morales v. Pension Benefit Guar. Corp., No. 10-1167, 2012 U.S. Dist. LEXIS 9101 (D. Md. Jan. 26, 2012) (Legg, J.). Holding: Granting defendant's motion to withdraw its earlier motion to dismiss and granting its motion for summary judgment, on the basis that its withholdings under Exemptions 4, 5, and 6 were proper and its search was sufficient; and denying plaintiff's motions for attorney's fees. The court grants the Pension Benefit Guaranty Corporation's (PBGC's) motion to withdraw its earlier motion to dismiss, which was based on plaintiff's failure to exhaust administrative remedies for non-payment of properly assessed fees after PBGC received assurance of payment from plaintiff. The court rejects plaintiff's argument that PBGC "should not be permitted to withdraw the Motion because it was frivolous and filed in bad faith" and denies his request for an award for attorney's fees "incurred in responding to the agency's Motion." Rather, the court finds that, "[f]or the purposes of the Motion to Withdraw, [it] need not decide whether PBGC was ultimately justified in putting its search on hold, because there is no evidence of bad faith on its part." Moreover, "[c]onsidering [plaintiff's] prior non-payment and his counsel's request to be consulted when costs neared the $500 mark, PBGC was entitled to suspend work until [plaintiff] provided assurances of reimbursement for the costs of continued production."

Bensman v. Nat'l Park Serv., No. 10-1910, 2011 WL 3489507 (D.D.C. Aug. 10, 2011) (Boasberg, J.). Holding: Concluding that because defendant exceeded the statutory time limit for responding to a FOIA request, it cannot assess search fees. The court concludes that defendant cannot assess search fees with respect to plaintiff's request because the agency exceeded the FOIA's twenty-day statutory response time. At the outset, the court finds that Department of the Interior's regulations and guidelines, which provide that "a 'bureau will not start processing a request until [all] fee issue[s have] been resolved,' but [which also provide that] 'the bureau must make [a] determination on the fee waiver request within 20 workdays," are both internally inconsistent and "at odds" with the 2007 OPEN Government Act amendments to the FOIA whereby fees cannot be charged when an agency fails to comply with the statutory time limits (subject to certain exceptions). Applying theSupreme Court's analysis inChevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.as to an agency's interpretation of a statute, the court concludes that "the language of the FOIA statute and the 2007 Amendments is unambiguous," namely, that "[a] determination must be made within 20 working days; to the extent tolling is possible, under the 2007 amendments a requester's response to an agency's request for information or clarification 'ends the tolling period.'"

Here, the court finds that Interior asked "for further information regarding Plaintiff's fee-waiver request" and "[p]laintiff provided that three days later." The court finds that Interior's decision to deny the fee waiver eight months later "plainly violates the 2007 Amendments' proscriptions." The court rejects Interior's argument that "no tolling is necessary" because the request was not perfected until the fee issues were resolved. Rather, the court finds that "[b]ecause Defendant's proffered interpretation would require all issues regarding fee assessment to be resolved prior to even starting the 20-working-day time limit, it follows that there would never be a need to clarify fee issues once the time limit did commence; this necessarily must have already taken place." The court also notes that "[s]uch a position is even more curious because Defendant's own regulations and internal memoranda explicitly acknowledge, in at least four instances, that the statutory time limit does in fact apply to fee-waiver requests."

With respect to Interior's argument that it timely denied plaintiff's fee waiver request in one of its response letters, the court finds that "[t]his argument appears for the first time in Defendant's pleadings and was never raised in its correspondence with Plaintiff" and, as such, "[t]he Court may not entertain litigation positions newly adopted by Defendant after Plaintiff filed suit; even if it could, the Letter does not qualify as a denial under Defendant's own regulations." Similarly, the court refuses to consider Interior's claim that "exceptional circumstances existed surrounding Plaintiff's fee-waiver request, thus justifying extending the time limit for notifying him of its determination." The court finds that "this is an argument Defendant failed to make at the administrative level before Plaintiff brought suit, thus barring the Court's consideration of it now."

Stuler v. IRS,No. 10-1342, 2011 U.S. Dist. LEXIS 66942 (W.D. Pa. June 23, 2011) (Ambrose,J.). Holding: Dismissing, without prejudice, the complaint for failure to exhaust administrative remedies. As an initial matter, the court notes that the "a failure to exhaust administrative remedies under FOIA is properly evaluated pursuant to [Federal Rule of Civil Procedure]12(b)(6)," i.e., failure to state a claim upon which relief may be granted. Upon reviewing the IRS's FOIA regulations, the court notes that "the IRS requires that the requester '[s]tate the firm agreement of the requester to pay the fees for search, duplication, and review . . . [or] place an upper limit for such fees that the requester is willing to pay, or request that such fees be reduced or waived and state the justification for such request.'" In accordance with the agency regulations, the court finds that "[a]bsent demonstration or claim of entitlement to a fee waiver, or commitment to pay applicable fees, an action is subject to dismissal for failure to state a claim." Here, the court concludes that plaintiff's "FOIA request did not comply with applicable regulations," noting that his "firm promise to pay fees and costs in the amount of '$00.00' is, on its face, not a promise to pay anything – it is a promise in form only, and not in substance." Moreover, the court finds that "[p]laintiff's 'promise' does not constitute a request for a waiver, as it does not state the justification for any such request." The court determines "[w]hen[, as here,] a requester declines to provide a firm agreement to pay for, or request a waiver of, fees and costs, the process is properly suspended pending compliance."

Perkins v. VA, No. 10-0840, 2010 WL 4852281 (D.D.C. Nov. 30, 2010) (Huvelle, J.). The court holds that plaintiff failed to qualify for a waiver of fees in connection with his FOIA request. First, the court concludes that since "[d]efendant does not address whether plaintiff is a commercial requestor, . . . [it] will assume plaintiff is a noncommercial requester, thereby requiring liberal construction of the fee waiver standard and satisfying [the] second prong" of the FOIA's fee waiver provision. With respect to the first prong of the fee waiver provision, i.e., "whether disclosure of information is in the public interest," the court evaluates plaintiff's eligibility in light of the four factors set forth in the VA's FOIA regulations. The court notes that "[d]efendant concedes that plaintiff has satisfied the first factor" – "[w]hether the subject of the requested records concerns the operations and activities of the government." However, the court finds that plaintiff fails to meet the remaining fee waiver factors.

With respect to the second factor which concerns the "informative value of the information to be disclosed," the court concludes that plaintiff has not demonstrated how his request will allow him to fulfill his stated purpose of "evaluating whether there are any 'significant racial training and travel disparities' within the ITC" when "it undisputed that the records that plaintiff requested do not reveal the racial makeup of the ITC's employees." The court finds that "plaintiff's assertion that he can determine the racial composition of the ITC's employees is a statement unsupported by the facts, which is 'insufficient to meet the burden placed on fee-waiver requesters.'" Moreover, the court finds that the "'intrinsic informational content'" of the records at issue "do not, 'in any readily apparent way,' contribute to an understanding of government operations or activities."

Plaintiff also fails to satisfy the third factor which concerns his ability to disseminate the requested information. Despite plaintiff's assertion that "his background as an IT specialist and prior experience analyzing racial data . . . demonstrate his ability to understand and process technical and voluminous data," the court finds that he "does not explain how his background in information technology requires him to perform statistical analysis, which is an entirely different subject matter." Additionally, plaintiff offers no evidence to support his claim that "he has experience analyzing racial data." More importantly, the court finds that plaintiff "has not described in reasonably specific and non-conclusory terms his ability to disseminate the requested information." The court comments that "[m]erely stating one's intention to disseminate information[, as the plaintiff does here,] does not satisfy this factor; instead, there must be some showing of one's ability to actually disseminate information." The court finds that, despite plaintiff's assertions to the contrary, he has not demonstrated that he has the ability to disseminate the information to the media, labor and civil rights organizations, or congressional committees, and further notes that "this is not a case where plaintiff operates his own means of information dissemination such as a newsletter or a website." Lastly, because plaintiff is unable to show that disclosure would increase public understanding under the second and third factors enumerated in the VA's regulations, the court concludes that he is likewise unable to satisfy the fourth factor, i.e., "to establish that disclosure willsignificantlyincrease such understanding."

Wall v. EOUSA, No. 09-344, 2010 U.S. Dist. LEXIS 120826 (D. Conn. Nov. 16, 2010) (Hall, J.). The court finds that EOUSA is entitled to summary judgment where plaintiff's "fee waiver request does not meet the requirement [set forth in DOJ regulations] of showing that the requested records concern 'identifiable operations or activities of the federal government,' . . . that they would be 'meaningfully informative about government operations or activities,' . . . or that they would increase public understanding to 'a significant extent.'" Further, plaintiff has not demonstrated that he "has 'expertise in the subject area' or the 'ability . . . to effectively convey information to the public.'" Instead, plaintiff "provide[d] only conclusory, and not entirely comprehensible, allegations of government corruption." Because DOJ's regulations require advanced payment for fees in excess of $250 and the estimated fees associated with processing plaintiff's request exceeded that amount, the court concludes that DOJ "correctly refused to process [plaintiff's] FOIA request unless [he] paid the fee in advance."

Clemente v. FBI, No. 08-1252, 2010 WL 3832047 (D.D.C. Sept. 28, 2010) (Friedman, J.). The court concludes that the FBI erred in denying plaintiff's request for fee waiver and, instead, finds that "the information that [plaintiff] seeks is likely to contribute to the public's understanding of the FBI's activities, and there is no reason to believe that her interests are primarily, if at all, commercial." First, the court finds that "the public has a considerable interest in knowing the extent to which the FBI countenances the criminal behavior of its informants." Second, the court rejects the FBI's finding that plaintiff's submission of "merely 'one self-generated newspaper article'" published in theNew York Timeswas "unpersuasive as evidence of her ability to disseminate information to the public." To the contrary, the court notes that the "article concerned the very subject matter of [plaintiff's] FOIA request and appeared in one of the most widely circulated newspapers in the United States" and, therefore, "is sufficient to show [her] ability to convey information about her FOIA request and its results to the public." The court finds no evidence to support the FBI's conclusion that plaintiff is pursuing the request "'in her commercial interest.'" Based on the foregoing, the court determines that plaintiff "is entitled to a waiver of fees under the FOIA."

Kemmerly v. U.S. Dep't of the Interior, No. 07-9794, 2010 U.S. Dist. LEXIS 75622 (E.D. La. July 26, 2010) (Berrigan, J.). The court declines to review plaintiff's claims, under the Administrative Procedure Act, that DOI's fee estimates were "arbitrary, capricious, excessive, and unreasonable" where he refused to pay the fees associated with those requests and therefore failed to exhaust his administrative remedies as required by DOI regulations.

Monaghan v. DOJ, No. 09-2199, 2010 U.S. Dist. LEXIS 60310 (D.Nev. June 17, 2010) (Mahan, J.). The court concludes that plaintiff is not entitled to a fee waiver because he fails to satisfy the first half of the two-prong fee waiver analysis – i.e., that "disclosure of the requested information is in the public interest because it is likely to contribute significantly to the public understanding of the operations and activities of the government." In considering the four factors related to the first prong, the court finds that plaintiff does not submit any evidence to support his contention that "his commentary on a sub-blog" within the "'9/11 Blogger' website demonstrate[s] his ability to disseminate information to the general public." Additionally, plaintiff fails to meet his burden to show that the requested disclosure will contribute to the public understanding because he does not explain "how the requested information will help to achieve [his stated] purpose" of "'settl[ing] the broad skepticism regarding American Airlines flight 77 and United Airlines flight 93.'" Since plaintiff does not satisfy the above-mentioned factors, he necessarily fails to show that the requested disclosure is "likely to contribute 'significantly' to the public understanding."

Saldana v. BOP, No. 08-1963, 2010 WL 1656862 (D.D.C. Apr. 27, 2010) (Bates, J.). Plaintiff's "conclusory statements [that the responsive records will benefit the general public] do not entitle him to a fee waiver, and the USMS's decision to deny him a waiver will thus be affirmed."

Monaghan v. FBI, No. 09-02199 (D. Nev. Apr. 19, 2010) (Leen, Mag. J.). Plaintiff's motion to supplement the record by introducing materials that were not part of his FOIA request is denied. "The government is correct that judicial review of a FOIA fee waiver decision is limited to the record before the agency. . . . A person requesting a fee waiver bears the initial burden of satisfying the statutory and regulatory standards for a fee waiver."

Coven v. OPM, No. 07-1831, 2009 WL 3174423 (D. Ariz. Sept. 29, 2009) (Broomfield, J.). Plaintiff's request for job vacancy data "does not explain at all, much less with 'reasonable specificity,' how disclosure of that data will contribute to public understanding for purposes of FOIA's fee waiver provision." Plaintiff cannot attempt to bolster this claim before the court with arguments he failed to make to the agency at the administrative stage. Furthermore, the availability of this information on OPM's own website suggests that further dissemination by plaintiff would be unlikely to contribute significantly to public understanding of government operations. Additionally, plaintiff did not establish in the administrative record before the agency that he does not have a commercial interest in the responsive records. Plaintiff also made no attempt to claim status as an educational institution or a non-commercial scientific institution, nor has he made any showing that he qualifies as a representative of the news media. Plaintiff's claim that the fees charged by OPM were excessive is not part of the record before the court, so the court has no means of evaluating and ruling on it given the "limited scope of its review." Moreover, OPM's defense of its fee estimate, which is a part of the record, is sufficient.

Lawyers Comm. for Civil Rights of the San Francisco Bay Area v. U.S. Dep't of the Treasury, No. 07-2590, 2009 WL 2905963 (N.D. Cal. Sept. 8, 2009) (Hamilton, J.). Defendant waived its right to object to plaintiff's request for a fee waiver where it failed to respond within twenty days of the request. The court further concluded that "Treasury was not excused from responding to the fee waiver request based on a belief that the records requested pursuant to LCCR's Freedom of Information Act (FOIA) request were exempt from disclosure." Additionally, the court commented that, in any event, "[plaintiff] is entitled to the fee waiver on the merits and satisfies the relevant criteria set forth in the DOJ Policy Guidance." Plaintiff's request to be designated as a representative of the news media was denied, however, because "LCCR has not demonstrated that it has properly raised or exhausted such a request."

Jordan v. DOJ, No. 07-02303, 2009 WL 2913223 (D. Colo. Sept. 8, 2009) (Blackburn, J.) (adopting magistrate's recommendation). Plaintiff's preference to receive the records pertaining to his prosecution on CD-ROM does not obviate his obligation to pay fees because the requested records only exist in a paper format and "the duplication fees for paper documents apply regardless of the final format of the duplicated documents." Moreover, "[b]ecause Defendant DOJ is entitled to collect advance fees when anticipated reproduction costs exceed $250, and because Plaintiff failed to pay the fee or reformulate his request, DOJ was not required to respond to Plaintiff's FOIA/PA request."

Reynolds v. Att'y Gen. of the U.S., No. 09-0434, 2009 WL 1938964 (S.D.N.Y. July 7, 2009) (Stein, J.). Defendant properly denied plaintiff's fee waiver request, as plaintiff "provided no explanation of how the information sought might contribute to the public's understanding of governmental activities." Because of the amount of the estimated fee to process plaintiff's request, defendant properly refused to process it until it received payment.

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