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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 in Chevron, 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."   

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