Hyatt v. U.S. Pat. & Trademark Off., No. 18-2800, 2022 WL 1718983 (D.D.C. May 27, 2022) (Chutkan, J.)

Hyatt v. U.S. Pat. & Trademark Off., No. 18-2800, 2022 WL 1718983 (D.D.C. May 27, 2022) (Chutkan, J.)

Re:  Request for "eight tranches of records related to his patent applications from various [United States Patent and Trademark Office (PTO)] offices, departments, and 70 PTO employees"

Disposition:  Partially granting and partially denying defendant's motion for summary judgment; denying plaintiff's motion for summary judgment; remanding plaintiff's fee categorization to defendant for further action

• Fees and Fee Waivers:  "The parties disagree on the standard of review for an agency's determination of a requester's fee category."  "The PTO argues the de novo standard used to review fee waiver decisions does not necessarily extend to an agency's decision on a requester's intended use."  "[Plaintiff] contends that based on cases from this district applying the de novo standard and canons of statutory construction 'the best reading of FOIA is that categorization determinations . . . are governed by the de novo review provision.'"  "Courts are increasingly applying the de novo standard for categorization determinations."  "The court need not decide this issue, however, because its ruling would be the same under either the stricter de novo standard or the more deferential arbitrary and capricious standard." 
  
  "Because the PTO does not dispute that the requested disclosure would 'shed light on []the operations or activities of the government,' . . . the court moves directly to the second factor: the likelihood that the disclosure would 'contribute significantly to public understanding' of government operations or activities."  "That inquiry assesses: (1) the 'degree to which [public] understanding of government activities will be advanced by seeing the information' and (2) 'the extent of the public that the information is likely to reach.'"  "[Plaintiff] asserts that the records he requests would contribute to public understanding because the records would shed light on 'the way that the PTO treats patent applicants, about government misconduct, about government spending on the operations and activities at issue, and about the agency's processing of long-pending patent applications.'"  "But [plaintiff] neither states with reasonable specificity how these records would advance the public understanding of the PTO's operations, nor the extent to which the public would be appraised of those operations; instead, he simply states in conclusory fashion that the public would have an 'overwhelming interest' in learning about the PTO's operations through the lens of his own claims."  "Certainly, as [plaintiff] argues, the public's interest in agency operations may be advanced when the information sought sheds light on unethical or illegal activity."  "But the link between the requested records and any alleged malfeasance must consist of more than 'bare allegations.'"  "His Declaration fails to describe with reasonable specificity or in a non-conclusory fashion why the 6 years of records he seeks shed any light on potential government malfeasance."  "Mere suspicion and a desire to ascertain the extent and details of any wrongdoing is not sufficient grounds for a fee waiver under the Cause of Action test."  "[Plaintiff] also fails to meet the second factor of the inquiry: that the extent of the public reached by the promulgated information be significant enough to merit a fee waiver."  "He states that he will make the requested information available to the American Center for Equitable Treatment, 'a non-profit corporation in which [plaintiff] is a member,' and will publish the records at a website he maintains, 'ptomisconduct.com.'"  "But again, [plaintiff] fails to show with reasonable specificity and in non-conclusory terms that this publication will 'disseminate the disclosed records to a reasonably broad audience of persons interested in the subject.'"  "This second factor is not a high bar."  "The court should not question the believability of a requester's stated ability to disseminate its material to a wide audience."  "Nor should the court impose some de minimis level of audience reach, whether through the number of outlets in which the information is published the number of people reached."  "But the requester must produce at least some information 'demonstrating its ability to disseminate the disclosures.'"  "Thus, a requester who fails to provide any information whatsoever 'about the size of its audience or the amount of traffic received by its website[s]' has not shown they qualify for a public interest fee waiver."  "Defendants correctly point out that [plaintiff] has provided no specific information about his ability to distribute the requested records."  "Certainly, [plaintiff] and his ongoing litigation have received news coverage over the years."  "But notoriety does not replace specificity."  "Conclusory statements do not establish that the records sought will be distributed to a sufficient audience."  "[Plaintiff] thus has not shown how the requested records would advance the public understanding of government operations." 
  
  Additionally, "the PTO classified [plaintiff's] request as for commercial use."  "[Plaintiff] challenges that classification, arguing that he should only be charged for document search and duplication fees, because he is neither a commercial nor a media user."  "Regardless of the standard of review to be applied to [plaintiff's] request, the court is limited by the administrative record."  "The administrative record here lacks sufficient information regarding the basis of the PTO's decision to deny [plaintiff's] request."  "The PTO reasoned that because '[plaintiff's] preferred venue for pursuing his allegations [against the PTO] is litigation' and '[plaintiff] has a significant financial [interest] in his litigation against the agency,' the requested records must be for commercial use."  "While it is true that [plaintiff's] many lawsuits against the PTO seek to advance his commercial interest in getting his patents issued, the PTO has not offered any support for its conclusion."  "Not all litigation derived from FOIA requests is for commercial benefit."  "The court will therefore remand the matter to the PTO to further develop the record or take new action."