Pfeiffer v. DOE, No. 20-2924, 2022 WL 2304069 (D.D.C. June 27, 2022) (Walton. J.)

Pfeiffer v. DOE, No. 20-2924, 2022 WL 2304069 (D.D.C. June 27, 2022) (Walton. J.)

Re:  Requests for various records that plaintiff characterizes as being related to his scholarly research

Disposition:  Denying defendant's motion for summary judgment; granting in part and denying in part plaintiff's motion for summary judgment

• Fees and Fee Waivers, Requester Categories:  First, "[t]he Court agrees with the plaintiff that he has adequately demonstrated his qualification as an educational institution requester under the FOIA."  The court finds that "plaintiff has provided ample evidence of how the current requests relate to his scholarly research."  The court relates that "[t]he Department's argument is predicated on the fact that ["a letter from a professor supporting the plaintiff's FOIA requests generally and confirming the areas of the plaintiff's research"] predates the records being currently requested."  "However, because the plaintiff had made – and continues to make – various FOIA requests pertaining to the areas of his PhD research, the Court is not persuaded by the defendant's argument that a new, detailed letter from a professor must relate to each and every individual FOIA request made in connection with the plaintiff's broader educational endeavor as a PhD candidate."  "Furthermore, the plaintiff's curriculum vitae shows that he has researched, written an extensive number of articles, and conducted many presentations about the anthropology and history of nuclear power."
   
• The court also relates that "defendant suggests that the plaintiff should have . . . 'provided the connection between [his FOIA] request . . . [and his] scholarly mission by producing [numerous] prior scholarly institutional reports . . . on' areas similar to the FOIA records requested."  The court finds that "[t]o hold that the plaintiff must make that showing as a threshold requirement would be impractical, as individual PhD candidates or other less established, but nevertheless demonstrated, scholars cannot reasonably be expected to have the same publication history as [more experienced professors]."  "Instead, considering the plaintiff's status as a current PhD candidate seeking documents with a potential nexus to his field of study, the Court concludes that the information provided by the plaintiff to prove this scholarly connection was sufficient." 
  
  Finally, "[a]lthough not required, the Court also agrees with the plaintiff that his past categorizations as an educational institution requester in conjunction with other FOIA requests weigh in favor of his current qualification as an educational institution requester."  "While . . . the plaintiff's past fee status categorizations are not dispositive for determining applicable fee waivers for future FOIA requests . . . the plaintiff's past categorizations can be considered when an agency is deciding whether the same categorization is applicable to a later request."
  
  "The Court further concludes that it need not assess whether the plaintiff also qualifies as a news media requester because qualifying as an educational institution requester is sufficient to establish the plaintiff's entitlement to a [favorable fee category], assuming the records are not sought for a commercial purpose."
  
  Second, regarding the commercial interest at issue, "the Court concludes that the plaintiff's potential earnings through his Patreon, assuming he does choose to post the records behind the barrier posed by that website's paid subscription, . . . does not constitute a primarily commercial interest that outweighs his scholarly intent as he endeavors to also post those records publicly for free on a different website."  The court finds that "'[t]he fact that a bona fide scholar profits from his scholarly endeavors is insufficient to render his actions primarily . . . commercial for purposes of calculating a fee waiver[.]'"  The court relates that "[a]lthough the plaintiff concedes that he does acquire profits from his Patreon posts, . . . he contends that his primary intention for the use of the records at issue is for scholarly purposes . . . ."  The court finds that "'Congress did not intend for scholars . . . to forego compensation when acting within the scope of their professional roles[,]' . . . and 'the fact that [a requester] charges fees in order to produce and distribute [his] work does not render [his] interests "primarily commercial[,]"' . . . ."  While the Department argues that it could not determine the plaintiff's primary interests because he was unable to show his scholarly interest and future plans for the requested records, . . . this Court has already determined that the plaintiff did sufficiently show a nexus between the requested records and his scholarly intent for seeking the records . . . ."
  
  The court also relates that "[t]he Department suggests that to 'cure his commercial interest[,]' . . . the plaintiff would need to commit to posting the records received from the FOIA request solely on the free online archive website."  "The Department additionally posits that even if the plaintiff were to represent that he would exclusively post the FOIA records on his free online archive website, the website includes a link to his Patreon webpage, which the Department considers amounts to advertisement."  "The plaintiff responds that he has 'disavowed any intention' to sell the data, . . . and that any information from the FOIA records made available on his Patreon webpage would also be published for free on his online archive website . . . ."  "The Court agrees with the plaintiff that he could not have made it clearer that his primary intention for use of the records is for scholarly purposes and that he has denied any intention to sell the records or provide them solely for viewers that must pay a fee for access, as would be required on the plaintiff's Patreon webpage."  "Thus, the Court concludes that the potential marginal profit the plaintiff would acquire from his Patreon webpage, should he even choose to publish the FOIA records on his Patreon webpage, does not trump his scholarly intentions to utilize the records for his studies and his online dissemination of the records without cost to the public."