690 F.Supp. 17 (D.D.C. 1988), Civ. A. 86-3454, National Sec. Archive v. U.S.Dept. of Defense

Docket Nº:Civ. A. 86-3454
Citation:690 F.Supp. 17
Party Name:National Sec. Archive v. U.S.Dept. of Defense
Case Date:June 16, 1988
Court:United States District Courts, District of Columbia

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690 F.Supp. 17 (D.D.C. 1988)




Civ. A. No. 86-3454.

United States District Court, District of Columbia.

June 16, 1988

David L. Sobel, Washington, D.C., for plaintiff.

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Elisa B. Vela, Dept. of Justice, Washington, D.C., for defendant.


JOHN GARRETT PENN, District Judge.

This case is before the Court on cross-motions for summary judgment. After carefully considering the motions, the opposition to them, the oral arguments of the parties, and the record in this case, the Court concludes that plaintiff's second motion for summary judgment should be denied, and that DoD's motion for summary judgment should be granted.

Plaintiff filed this action under the Freedom of Information Act (the FOIA), 5 U.S.C. § 552, claiming that the United States Department of Defense (DoD) wrongfully refused to consider plaintiff as a preferred institution under the FOIA Amendments of 1986 (the Amendments), 5 U.S.C. § 552(a)(4)(A), for the purposes of fee assessments. Plaintiff, which has numerous FOIA requests pending before the DoD, claims that it should be treated as either an educational institution or as a representative of the news media, and that it therefore should have to pay only duplication fees when it seeks documents. Plaintiff also contends that it is not a commercial requester for the purposes of the Amendments.

DoD contends that the case is not ripe because plaintiff might be entitled to have search and review fees waived if DoD determines pursuant to 5 U.S.C. § 552(a)(4)(A)(iii) that the release of the documents which plaintiff seeks is in the public interest. DoD also contends that its determination that plaintiff is neither an educational institution nor a representative of the news media should be upheld. DoD maintains that its placement of plaintiff in the "other" category of requesters under 5 U.S.C. § 552(a)(4)(A)(ii)(III) is proper.


It appears that DoD will not process plaintiff's requests unless plaintiff agrees to incur fees for the search and review of documents. 1 Plaintiff will be obligated to pay those fees unless DoD subsequently waives them under the public interest exemption. Thus, DoD would force plaintiff to risk liability for search and review costs before allowing it to seek judicial review of the denial of a waiver based upon status.

The Court concludes that DoD's denial of a waiver based upon status is sufficient to render this dispute ripe for judicial review since DoD will not process plaintiff's requests without assessing additional fees. There is a concrete legal dispute, and plaintiff's strong interest in the prompt consideration of the allegedly unlawful agency action is not outweighed by any hardship to the agency or by a significant judicial interest in favor of delay. See Payne Enterprises, Inc. v. United States, 837 F.2d 486, 492-494 (D.C.Cir. 1988). Furthermore, the legislative history of the 1986 Amendments indicates an intent to have disputes over fee waivers determined at an early stage. See 132 Cong.Rec. H 9463 (daily ed. October 8, 1986) (joint analysis of Reps. English and Kindness) ("Agency regulations must include procedures whereby a requester can determine its status for purposes of fee categories ... at the time the request is made.").


Under the Amendments, educational institutions whose purpose is scholarly research, and representatives of the news media are entitled to the waiver of search and review fees if they seek to obtain documents for non-commercial purposes. 5 U.S.C. § 552(a)(4)(A)(ii)(II). Congress did not define the terms "educational institution" or "representative of the news media."

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Instead, it delegated to the agencies the task of promulgating regulations setting forth the procedures and guidelines for determining requests for waivers. 5 U.S.C. § 552(a)(4)(A)(i). The standard of review of the denial of a waiver is de novo, and review is limited to the record that was before the agency. 5 U.S.C. § 552(a)(4)(A)(vii).

Defendant adopted a regulation which states in relevant part:

The term "educational institution" refers to a preschool, a public or private elementary or secondary school, an institution of graduate higher education, an institution of undergraduate higher education, an institution of professional education, and an institution of vocational education, which operates a program or programs of scholarly research....

The term "representative of the news media" refers to any person actively gathering news for an entity that is organized and operated to publish or broadcast news to the public. The term "news" means information that is about current events or that would be of current interest to the public. Examples of news media entities include television or radio stations broadcasting to the public at large, and publishers of periodicals (but only in those instances when they can qualify as disseminators of "news") who make their products available for purchase or subscription by the general public.

32 C.F.R. § 286.33(e)(4) and (7).

In support of its application for a waiver, plaintiff relied in large part upon the lengthy and detailed declaration of its executive director, R. Scott Armstrong. Exhibit C to Amended Complaint, filed June 11, 1987 (Armstrong Decl.). The declaration states that plaintiff is a public interest, scholarly research institute and library, the primary function of which is to make available government information regarding foreign, defense, intelligence and international economic policy. Id. at 1. The declaration describes plaintiff's employees and consultants as a collection of scholars and experts in various subject areas. Id. at 3-4. Armstrong represents that the bulk of plaintiff's work in the creation of its "archival" services involves the preparation of detailed indexes and finding aids which facilitate the use of the documents for research. Id. at 6. Plaintiff's materials are open to the public without charge. Id. at 1. Armstrong also notes that plaintiff is a division of the Fund for Peace, Inc., a non-profit corporation to which the Internal Revenue Service (I.R.S.) has granted tax-exempt status as an entity organized and operated exclusively for educational purposes. Id. at 4.

Armstrong represents that plaintiff, its staff, and affiliated scholars have disseminated or will disseminate information in a variety of ways, including: working closely with journalists and scholars (see, e.g., attachments to exhibit B of Plaintiff's Second Motion for Summary Judgment, filed November 20, 1987); publishing an account of the "Iran-Contra Affair"; publishing articles relating to document sets; publicizing plaintiff's holdings; participating in or organizing conferences; and appearing in public forums. Id. at 7-8; and Second Declaration of R. Scott Armstrong, filed as exhibit 2 to exhibit B to Plaintiff's Second Motion for Summary Judgment. In the future, plaintiff plans to sell document sets and indexes to libraries. Armstrong Decl. at 8.

Plaintiff does not contest DoD's determination that it is neither an education institution nor a representative of the news media within the meaning of DoD's regulations. Thus, looking at the matter de novo, the Court has no basis to disagree with DoD's determination under the regulations. 2 However, plaintiff contends that DoD's regulations do not comport with the

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intent of the statute in that they are too narrow. Plaintiff asserts that the legislative history of the statute reveals Congress's intent to allow for waivers for an entity like plaintiff within the definitions of either an educational institution or a representative of the news media.

In reviewing an agency's interpretation of a statute committed to its administration a court must first look to the legislation. Chevron U.S.A., Inc. v. N.R.D.C., 467 U.S....

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