Nat'l Sec. Counselors v. DOJ, No. 13-556, 2015 WL 674289 (D.D.C. Feb. 18, 2015) (Chutkan, J.)

Nat'l Sec. Counselors v. DOJ, No. 13-556, 2015 WL 674289 (D.D.C. Feb. 18, 2015) (Chutkan, J.)

Re: Request for Manual of Administrative Operations and Procedures ("MAOP")

Disposition: Granting defendant's motion for summary judgment; denying plaintiff's cross-motion for partial summary judgment

• Fees and Fee Waivers, Fees:  The court grants defendant's motion for summary judgment on this issue.  First, the court finds that, "[t]o the extent Count III challenges the FBI's [FOIA CD interim release policy] fee determination for [plaintiff's] Request, that claim is now moot because the FBI released the entire MAOP to [plaintiff] without charge."  Second, even though another plaintiff did not file an administrative appeal, the court finds that, "[g]iven that [other plaintiff's] Count III claim is identical to [plaintiff's], and that OIP's resolution of [plaintiff's] fee determination appeal informs how OIP likely would have resolved such an appeal by [other plaintiff], the Court finds that the purposes and policies of administrative exhaustion would not be undermined by it reaching the merits of [other plaintiff's] Count III FOIA claim along with [plaintiff's]."  Third, the court finds that "[t]o the extent Plaintiffs assert a ["''claim that an agency policy or practice will impair the party's lawful access to information in the future''"] in Count III, they have asserted no facts showing that the [FOIA CD interim release policy] and associated fees will impair Plaintiffs' lawful access to information in the future."  "To the contrary, the undisputed facts demonstrate that the [FOIA CD interim release policy] provides medium- and large-queue requesters with records faster than if all records were produced simultaneously, that the FBI charges requesters less than it is permitted to for each 500–page CD, and that the [FOIA CD interim release policy] presents requesters with cost savings over hard copy duplication."  "Rather than a refusal to supply information, the undisputed facts show that the [FOIA CD interim release policy] is the FBI's attempt to produce portions of large FOIA requests more expeditiously and economically for the agency and requesters and is consistent with its obligation that it 'shall disclose records to the requester promptly on payment of any applicable fee.'"  Additionally, the court finds that "[p]laintiffs offer no legal authority that would require the FBI to recognize a requester's attempt to waive the 500–page–per–CD limit of the [FOIA CD interim release policy]."
   
• Fees and Fee Waivers, Fee Waivers:  The court denies plaintiff's fee waiver request.  The court first notes that its "review of the fee waiver denials is de novo and is limited to the record that was before the agency when it considered [plaintiff's] requests."  The court then notes that "[i]t is undisputed in this case that the requested records concern the operations or activities of the government" and, therefore, "only factors (ii) – (iv) require discussion."  The court finds that "DOJ's justification for denying the fee waiver[,]" that "'disclosure of the requested information would not lead to an increased public understanding of the activities and operations of the federal government' since the requested information was 'a matter of public record....,'" "does not pass muster."  The court finds that, "[s]trictly speaking, it is true that the requested information is a matter of public record."  "However, that information is scattered in courthouses across the United States."  "In order to compile the information, NSC would first have to somehow determine what cases in which courthouses hold the information – no small undertaking – and then would have to gather it, which might include considerable travel for court records not electronically available."  Therefore, the court finds that "the requested disclosure would increase the public's understanding of the activities of the federal government" and "this factor weighs in favor of waiving the fees."  However,"[g]iven the vague plans [plaintiff] presented to DOJ to disseminate the requested information, the fact that it has not demonstrated that it has sufficient statistical expertise to extract meaningful data from the compiled information, the fact that its publication history suggests little actual dissemination, and [plaintiff's] failure to indicate what segment of the public beyond itself may be interested in these highly specific administrative matters, the Court finds that this factor weighs against waiving fees."  Lastly, the court finds that "since the record before the agency provided insufficient evidence from which to conclude the public's understanding of the functions of the federal government would be significantly enhanced by dissemination of the requested information, this final factor weighs against waiving fees and the Court concludes that [plaintiff's] request for a fee waiver was properly denied."
   
• Litigation Considerations, Discovery:  The court holds that "[plaintiff's] request in the alternative for discovery is denied."  The court finds that "[plaintiff] has not explained how documentation of the agency's internal deliberative process could be considered in this Court's de novo review, where the Court may reach its own conclusion regardless of the agency's determination."