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Bernegger v. EOUSA, No. 18-908, 2022 WL 579291 (D.D.C. Feb. 25, 2022) (Moss, J.)


Bernegger v. EOUSA, No. 18-908, 2022 WL 579291 (D.D.C. Feb. 25, 2022) (Moss, J.)

Re:  Request for records concerning plaintiff's criminal case

Disposition:  Granting defendant's motion for summary judgment

  • Fees and Fee Waivers:  The court notes that "the sole question presented by the pending motion is whether [plaintiff] was entitled to a fee waiver."  In processing plaintiff's request, "EOUSA informed [plaintiff] that . . . [t]he estimated duplication fees associated with processing those records totaled $442.50 . . . ."  "The EOUSA further explained that because the estimated fees exceeded $250.00, [plaintiff] would need to make 'an advance payment' of $442.50 'before [the EOUSA would] continue processing [his] request.'"  EOUSA contends that "'because Plaintiff failed to pay advance duplication fees and failed to demonstrate that he is entitled to a public interest waiver of those fees,' . . . [plaintiff] may not challenge the adequacy of its response to his FOIA request in this Court."

    "As an initial matter, [plaintiff] argues that the EOUSA's motion 'must be denied as [the agency] failed to perform an adequate search.'"  "But that contention, along with [plaintiff's] demand for a Vaughn index, ignores the plain text of the governing regulation, which provides that the relevant Department of Justice component need not 'begin[ ] to process the request' until the payment is made." 

    As to the fee waiver, "[plaintiff] claims, in particular, that the prosecutors removed Count One of the indictment from the verdict form, 'without the Judge's knowledge or permission,' and that, as result, the jury was never allowed to consider that charge."  The court notes "[t]hat contention, however, is far from new, and there is no reason to believe that the records that he seeks are 'likely to contribute significantly to public understanding of the . . . activities of the' prosecutors in [plaintiff's] case or 'the government' more generally."  The court finds that "[plaintiff] offers nothing more than unsupported conclusions and ad hominem attacks."  "Thus, even assuming that a fraud of the nature that [plaintiff] alleges would constitute a matter of public interest, his filings lack any reasonable basis to conclude that the requested 'documents would increase public knowledge of the functions of government.'"

    "More generally, [plaintiff] appears interested in finding some evidence—whatever it might be—that might upset his criminal conviction."  The court relates that "'[a] requester's private interest,' however, 'is not relevant to the fee waiver analysis, and an attack on a criminal conviction is a private interest.'"  "[Plaintiff], moreover, has had ample opportunity to pursue [prosecutorial misconduct] claims . . . ." 

    "[Plaintiff's] request for a fee waiver fails for a second reason as well: he has failed to demonstrate that he has [the] 'ability and intention to effectively convey or disseminate the requested information to the public.'"  "[Plaintiff] maintained before the OIP that there were '3 news media outlets [that] wish[ed] to conduct on a story on [that prosecutor's] fraud and lies.'"  The court notes that "the D.C. Circuit has held that an assertion of the kind [plaintiff] [is making] is insufficiently specific . . . because the requester 'failed to identify the newspaper company to which he intended to release the requested information, his purpose for seeking the requested material, or his professional or personal contacts with any major newspaper companies.'"  "In this case, [plaintiff's] failure to elaborate on his plans to disseminate the requested information further supports the OIP's decision denying his waiver request."

    "Finally, the Court is unpersuaded by [plaintiff's] contention that the EOUSA's motion fails because it does not separately address his Privacy Act claim."  "The governing Department of Justice regulations make clear that the same fees that apply under FOIA apply for purposes of the Privacy Act."  "Because no daylight exists between the two regulatory regimes, they require the same result."
Court Decision Topic(s)
District Court opinions
Fees and Fee Waivers
Updated March 15, 2022