Request for fee waiver for records concerning the terrorist attacks of September 11, 2001
Affirming decision of district court and FBI to deny fee waiver
- Procedural: The Ninth Circuit concludes that the FBI's untimely response was properly considered by the district court as part of the administrative record. The court notes that "the FBI's untimely response was not an attempt to manipulate the record on judicial review. To the contrary, with the exception of timeliness, the response appears to be the FBI's attempt to comply with FOIA."
- Exhaustion: The Ninth Circuit holds that the FOIA's constructive exhaustion provision does not relieve a FOIA requester of his obligation to pay fees.
- Fees and Fee waiver: The Ninth Circuit finds that the district court properly determined that the administrative record did not support the grant of a fee waiver to appellant. Appellant failed to demonstrate "how documents that address 'broad public skepticism' and 'public doubts' regarding the crashes of American Airlines flight 77 and United Airlines flight 93 are 'meaningfully informative' on governmental operations or activities, and it is not the FBI's responsibility to infer a connection." Appellant also failed to "establish either an ability or intention to effectively convey information to a broad public audience." The Ninth Circuit notes that appellant's "sub-blog is not easily accessible through general searches" and that he failed to "provide any information regarding the website traffic or number of hits" and "[g]iven these uncertainties [appellant] fails to establish that any information put on his sub-blog will reach the public and contribute to a 'public understanding' of government activities." Finally, as the FBI noted, "portions of the responsive documents have previously been released to the public." Accordingly, they are "unlikely to further contribute to public understanding of government operations."