National Treasury Employees Union v. Griffin, 85-5971

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Citation811 F.2d 644
Docket NumberNo. 85-5971,85-5971
Parties124 L.R.R.M. (BNA) 2672, 258 U.S.App.D.C. 302 NATIONAL TREASURY EMPLOYEES UNION, Appellant v. William J. GRIFFIN, et al.
Decision Date06 February 1987

Appeal from the United States District Court for the District of Columbia (Civil Action No. 84-03291).

Cary P. Sklar, with whom Lois G. Williams, Washington, D.C., was on brief, for appellant.

Melanie Ann Pustay, Atty., Dept. of Justice, for appellees. Joseph E. diGenova, U.S. Atty., Royce C. Lamberth and R. Craig Lawrence, Asst. U.S. Attys., were on brief, for appellees.

Before SILBERMAN and WILLIAMS, Circuit Judges, and JAMESON, * Senior District Judge.

Opinion for the Court filed by Circuit Judge WILLIAMS.

WILLIAMS, Circuit Judge:

The National Treasury Employees Union ("NTEU") appeals a grant of summary judgment in favor of the United States Customs Service and individual customs officials. The Customs Service denied NTEU's requests for waivers or reductions of search and duplication charges relating to requests under the Freedom of Information Act, 5 U.S.C. Sec. 552 (1982) ("FOIA" or the "Act"). We agree with the District Court that the Customs Service's actions were proper and therefore affirm.

I. BACKGROUND

NTEU challenges the Customs Service's treatment of fees to be charged for three separate FOIA requests. 1 In the first, the union sought "[n]ames, positions, grades and steps of all Northeast Region employees who have received awards and/or bonuses from July 1980 through the present" and copies of such awards and bonuses. Joint Appendix ("J.A.") at 15. In the second, it asked for "[c]opies of all letters of complaint filed against the U.S. Customs Service, Northeast Region, from January 1980 through the present" and statistics comparing these complaints with those in other regions. Id. at 17. In the third, it requested "[c]opies of all travel vouchers submitted by Northeast Region employees of the Labor Relations Office and the Regional Counsels [sic] Office which involved the administering of the National Agreement between NTEU and the Customs Service from July 1980 through the present." Id. at 20 (emphasis in original). In each of these requests, NTEU asked for a waiver of search and duplication fees but also expressed willingness to pay reasonable fees. The Customs Service's initial responses gave statements of the estimated charges and requested prepayment. Id. at 16, 18-19, 22. Only the response to the travel vouchers request addressed the union's fee waiver request, and it summarily denied it. Id. at 22.

NTEU administratively appealed the Service's refusals to waive search fees. In its appeal letter, it stated that information on awards and bonuses given to effective public employees "obviously benefits the general public." Id. at 31. It alleged a "unique ability" to distribute the awards information "not only to employees, but also to the public." Id. It also said that "complaints ... are of interest to the public since the release of such documents will improve Government efficiency and culpability." Id. at 30. The union's appeal letter stated that the travel vouchers were "plainly of interest to the general public" because they "clearly relate to how the N.E. Region of Customs expends Government funds." Id. Finally, it accused the Customs Service of attempting to discourage requests and to conceal inefficiency through imposition of excessive fees. Id. at 30-31.

In response to NTEU's administrative appeal, the director of the Service's Office of Regulations and Rulings found the estimated fees reasonable, in view of the time-consuming nature of certain requests. Id. at 34. He also rejected the allegations that disclosure would be in the public interest, because he failed to find a genuine public interest in the subject matter or the specific records. Id. The director said, "It is more likely that the preponderant purpose of the requests is to obtain information thought to be useful in furthering the unique and limited interests of the requesters. Any benefit which the general public might derive from the disclosure of the records and the waiver of fees would be, at best, indirect and speculative." Id. at 34-35. Accordingly, the director denied the request for a fee waiver. Id. at 35. He found no basis for the charge of bad faith in the assessment of fees. Id.

The union filed suit to compel the Customs Service to waive or significantly reduce all fees for its requests. In response to cross-motions for summary judgment, the District Court said, "We are satisfied that defendants did not act arbitrarily or capriciously or abuse their discretion in refusing to waive charges for search and duplication costs in connection with plaintiff's six requests for information. We hold that the waiver of costs would not be in the public interest because the information requested cannot be considered as 'primarily benefitting the general public.' " National Treasury Employees Union v. Griffin, No. 84-3291 (D.D.C. filed July 22, 1985), J.A. at 74. The court then granted the Service's motion.

II. THE STANDARD FOR FOIA FEE WAIVERS

Although FOIA generally requires requesters to pay the costs of searches, it also provides that

fees shall be limited to reasonable standard charges for document search and duplication and provide for recovery of only the direct costs of such search and duplication. Documents shall be furnished without charge or at a reduced charge where the agency determines that waiver or reduction of the fee is in the public interest because furnishing the information can be considered as primarily benefiting the general public.

5 U.S.C. Sec. 552(a)(4)(A) (1982). 2

Fee waivers or reductions are mandatory under Sec. 552(a)(4)(A) only if the agency makes the requisite public interest finding. An agency's finding that a fee waiver does not satisfy the public interest standard will be upheld unless the finding is arbitrary or capricious. See Ely v. United States Postal Service, 753 F.2d 163, 165 (D.C.Cir.), cert. denied, 471 U.S. 1106, 105 S.Ct. 2338, 85 L.Ed.2d 854 (1985); Allen v. FBI, 551 F.Supp. 694, 696-97 (D.D.C.1982); Eudey v. CIA, 478 F.Supp. 1175, 1176 (D.D.C.1979). But see Rizzo v. Tyler, 438 F.Supp. 895, 899 (S.D.N.Y.1977) (agency finding reviewed de novo).

A. NTEU's Public Interest Showing

NTEU's original requests gave no indication of how the information requested could be "considered as primarily benefiting the general public." Its administrative appeal letter repeatedly stated that a fee waiver was "clearly appropriate," but (except for the repetitions) made almost no effort to demonstrate the proposition.

A requester seeking a fee waiver bears the initial burden of identifying the public interest to be served. See Ely v. United States Postal Service, 753 F.2d at 165; Ettlinger v. FBI, 596 F.Supp. 867, 874-76 (D.Mass.1984); Lykins v. Rose, 3 Gov't Disclosure Serv. (P.H) p 82,486, at 83,222 (D.D.C. Oct. 4, 1982); Burriss v. CIA, 524 F.Supp. 448, 449 (M.D.Tenn.1981). When a public interest is asserted but not identified with reasonable specificity, and circumstances do not clarify the point of the requests, it is not arbitrary or capricious for an agency to infer, as the Customs Service did here, that any benefit to the public from disclosure and waiver "would be, at best, indirect and speculative." J.A. at 35. Cf. American Federation of Government Employees, Local 2782 v. Department of Commerce, 632 F.Supp. 1272, 1278 (D.D.C.1986) ("Society undoubtedly has an interest in discovering and subjecting unlawful agency action to public scrutiny, but the Union's allegations of malfeasance here are too ephemeral at the moment to warrant such a [FOIA] search at public expense without further reason to suppose that the corruption suspected will be found."). With only conclusory allegations of the point of the requests before it, the Service naturally found it difficult to discern a basis for the NTEU's assertions of a public interest. Any benefit to the general public that might flow from furnishing the requested information is less than obvious.

In opposing the Service's motion for summary judgment, NTEU purported to explain the public interest it intended to invoke. It said that the awards and bonuses information related to possibly improper personnel practices. Memorandum of Points and Authorities in Support of Plaintiff's Motion for Summary Judgment and in Opposition to Defendants' Motion for Summary Judgment at 18. The travel vouchers request related to its claims that Service labor negotiators had engaged in an obstructionist labor relations policy and spent tax dollars unnecessarily, id. at 21-22, and the complaint letters request related to a quota system under which Service employees were awarded points for discovering undeclared merchandise, id. at 27-28. NTEU devotes the greater part of its brief on appeal to further explanation of the public interest in these issues.

The public interests identified here would hardly justify fee waivers for all the information requested. Accepting arguendo that the quota system, for example, is indeed the subject of considerable public concern, such concern would not justify waiver of fees for search and duplication of all complaint letters (rather than just quota system complaints). The relationship between the other requests and the public interests identified are similarly tangential. Furthermore, the links between furnishing the requested information and benefiting the general public seem at best tenuous.

A detailed examination of these issues is inappropriate, however. The union's efforts to fashion a plausible public benefit theory come too late. The reasonableness of the agency's refusal depends on the information before it at the time of its decision. See Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 43, 103...

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