Sack v. U.S. Dep't of Def., 14–5039.

• Decision Date: 20 May 2016
• Docket Number: No. 14–5039.,14–5039.
• Citation: 823 F.3d 687
• Parties: Kathryn SACK, Appellant v. UNITED STATES DEPARTMENT OF DEFENSE, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

823 F.3d 687

Kathryn SACK, Appellant

v.UNITED STATES DEPARTMENT OF DEFENSE, Appellee.

No. 14–5039.

United States Court of Appeals, District of Columbia Circuit.

Argued Feb. 18, 2016.

Decided May 20, 2016.

Kelly B. McClanahan argued the cause and filed the briefs for appellant.

Peter R. Maier, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief was R. Craig Lawrence, Assistant U.S. Attorney. Jane M. Lyons, Assistant U.S. Attorney, entered an appearance.

Before: TATEL, GRIFFITH, and KAVANAUGH, Circuit Judges.

Opinion for the Court filed by Circuit Judge KAVANAUGH

.

KAVANAUGH

, Circuit Judge:

The Government charges fees to process FOIA requests. Those fees can be significant—in this case about $900—and can deter or prevent citizens from making FOIA requests.

By statute, educational institutions are eligible for reduced fees when they make FOIA requests. The Government has long determined that teachers who make FOIA requests are eligible for those reduced fees because teachers are part of an educational institution. But at the same time, the Government has determined that students who make FOIA requests are not eligible for those reduced fees because they are supposedly not part of an educational institution.

We disagree with the Government's slicing of the term “educational institution.” If teachers can qualify for reduced fees, so can students. Students who make FOIA requests to further their coursework or other school-sponsored activities are eligible for reduced fees under FOIA because students, like teachers, are part of an educational institution. The student involved in this case, Kathryn Sack, therefore is eligible for reduced fees for her FOIA requests. We reverse the contrary judgment of the District Court on that question, and affirm in all other respects.

I

While pursuing her Ph.D. in Politics at the University of Virginia, Kathryn Sack submitted FOIA requests to the Department of Defense.¹ Sack sought Department reports about its use of polygraph examinations, as well as related documents about those examinations. Sack told the Department that she intended to use the requested information for her dissertation on polygraph bias.

Sack asked the Department to categorize her as an educational-institution requester. Under FOIA, government agencies may charge fees for processing FOIA requests. But FOIA limits the fees that an agency may charge for processing FOIA requests made by an educational institution.

For one batch of Sack's requests, the Department of Defense refused to categorize Sack as an educational-institution requester and required her to pay about $900 to conduct the search. For another batch of Sack's requests, the Department conducted a search and reviewed responsive documents, but the Department informed Sack that the documents were exempt from disclosure under FOIA Exemption (7)(E).

Sack filed a lawsuit challenging the Department's handling of those two batches of requests. As to the first, Sack asked to be categorized as an educational-institution requester so that she would have to pay only the reduced fees. As to the other, Sack challenged the Department's withholding of the requested polygraph reports. The District Court granted summary judgment to the Department of Defense. The Court concluded that Sack was not an educational-institution requester entitled to reduced fees. And the Court ruled that the polygraph reports were exempt under FOIA Exemption 7(E).

II

The first question in this case is whether FOIA requests made by students to further their coursework or other school-sponsored activities are requests made by an “educational institution.”

A

At the outset, we must describe the relevant statutory and regulatory provisions regarding fees for FOIA requests. Buckle up.

FOIA directs agencies to charge “fees applicable to the processing of requests.” 5 U.S.C. § 552(a)(4)(A)(i)

. Fees may include charges for document search, document duplication, and document review.

The category of the FOIA requester determines the kinds of fees that may be charged. FOIA establishes three categories of requesters.

The first category covers commercial requesters. Agencies may charge such commercial requesters “reasonable standard charges for document search, duplication, and review.” Id. § 552(a)(4)(A)(ii)(I)

.

The second category covers noncommercial requests made by educational institutions, noncommercial scientific institutions, and representatives of the news media. Agencies may charge requesters in the second category only for document duplication. Id. § 552(a)(4)(A)(ii)(II)

.²

The third category includes all other requesters. Agencies may charge those requesters for document search and duplication. Id. § 552(a)(4)(A)(ii)(III)

.

Here, Sack clearly does not fall within the first category. The question is whether Sack falls within the second “educational institution” category, or instead falls within the third “other” category.³ This question matters because, to reiterate, educational-institution requesters need to pay only the costs for document duplication but not the costs for document search.

FOIA directs agencies to “promulgate regulations” specifying “the schedule of fees applicable to the processing of requests ... and establishing procedures and guidelines for determining when such fees should be waived or reduced.” Id. § 552(a)(4)(A)(i)

. The statute further provides: “Such schedule shall conform to the guidelines which shall be promulgated ... by the Director of the Office of Management and Budget and which shall provide for a uniform schedule of fees for all agencies.” Id.⁴

FOIA does not define the term “educational institution” apart from limiting it to those institutions “whose purpose is scholarly or scientific research.” Id. § 552(a)(4)(A)(ii)(II)

. Department of Defense regulations supply a more comprehensive definition: “The term ‘educational institution’ refers to a pre-school, a public or private elementary or secondary school, an institution of graduate high 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.” 32 C.F.R. § 286.28(e)(4).

Consistent with the statute's directive to follow OMB Guidelines, the Department of Defense has derived its definition of “educational institution” from the Office of Management and Budget's Fee Schedule and Guidelines, which define “educational institution” in the same terms. 52 Fed. Reg. 10,012, 10,014 (1987)

.

But who within the educational institution qualifies for reduced fees when they make a FOIA request? The Department of Defense regulations do not say. But the OMB Guidelines add further detail on that point. The Guidelines state that “agencies should be prepared to evaluate requests on an individual basis when requesters can demonstrate that the request is from an institution that is within the category, that the institution has a program of scholarly research, and that the documents sought are in furtherance of the institution's program of scholarly research and not for a commercial use.” Id.

The Guidelines also direct agencies to “ensure that it is apparent from the nature of the request that it serves a scholarly research goal of the institution, rather than an individual goal.” Id.

To help agencies apply what OMB calls the “institutional versus individual test,” the Guidelines provide a few examples and make clear that a teacher may be eligible for reduced fees: A “request from a professor of geology at a State university for records relating to soil erosion, written on letterhead of the Department of Geology, could be presumed to be from an educational institution.” Id.

By contrast, a “request from the same person for drug information from the Food and Drug Administration in furtherance of a murder mystery he is writing would not be presumed to be an institutional request, regardless of whether it was written on institutional stationary.” Id.

The OMB Guidelines also speak to student requests. The Guidelines purport to say that the “institutional versus individual test” applies to “student requests as well” as teacher requests. Id.

But the Guidelines then turn around and say that student requests to further coursework do not qualify as educational-institution requests: “A student who makes a request in furtherance of the completion of a course of instruction is carrying out an individual research goal and the request would not qualify....” Id. That lone statement in the OMB Guidelines, if consistent with the statute and otherwise binding in this case, would obviously mean that Sack could not qualify as an educational-institution requester. Not surprisingly, in denying Sack's request to be categorized as an educational-institution requester, the Government relied heavily on that OMB Guideline.

B

We now must decide whether FOIA requests made by students to further their coursework or other school-sponsored activities are requests made by an “educational institution.” To our surprise, no court of appeals has apparently decided that question in a published opinion.

In common parlance, the term “educational institution” is synonymous with “school.” See National Security Archive v. Department of Defense, 880 F.2d 1381, 1383 (D.C.Cir.1989)

(“The ordinary meaning of the term ‘educational institution’ is ‘school.’ ”). According to Black's Law Dictionary, an educational institution is a “school, seminary, college, university, or other educational facility, though not necessarily a chartered institution.” (10th ed. 2014).

But who within a school is part of the school for FOIA purposes? At first blush, one might think that the term “educational institution” in FOIA includes neither teachers nor students, but refers only to the officers of the institution who speak officially for the institution—for example, the president, provost, or dean of a university. But that narrow category would make no sense in...