880 F.2d 1381 (D.C. Cir. 1989), 88-5217, National Sec. Archive v. U.S. Dept. of Defense

Docket Nº:88-5217.
Citation:880 F.2d 1381
Case Date:July 28, 1989
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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880 F.2d 1381 (D.C. Cir. 1989)




No. 88-5217.

United States Court of Appeals, District of Columbia Circuit.

July 28, 1989

Rehearing and Rehearing En Banc Denied Sept. 26, 1989.

Argued May 25, 1989.

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Appeal from the United States District Court for the District of Columbia (Civil Action No. 86-03454).

Joseph N. Onek, with whom Clifford M. Sloan and David L. Sobel, Washington, D.C., were on the brief, for appellant.

Gregory C. Sisk, Atty., Dept. of Justice, with whom John R. Bolton, Asst. Atty. Gen., Jay B. Stephens, U.S. Atty., and Leonard Schaitman, Atty., Dept. of Justice, Washington, D.C., were on the brief, for appellee.

Before ROBINSON, MIKVA and D.H. GINSBURG, Circuit Judges.

Opinion for the Court filed by Circuit Judge D.H. GINSBURG.

D.H. GINSBURG, Circuit Judge:

The Freedom of Information Reform Act of 1986 amends the Freedom of Information Act by providing for reduced fees for certain types of document requests made by any entity that qualifies as "an educational ... institution" or as "a representative of the news media." Based upon its "collect[ion] and disseminat[ion of] comprehensive government documentation pertaining to selected issues of major public concern in the areas of foreign, defense, intelligence, and international economic policy," the National Security Archive requested that the Department of Defense classify it as, alternatively, "an educational ... institution" or "a representative of the news media." Pursuant to regulations it had adopted defining those two statutory terms, DoD denied the request. The Archive challenged that denial in district court, and on cross-motions for summary judgment, the court affirmed DoD's determination. 690 F.Supp. 17. We now affirm in part and reverse in part. We hold that the Archive is not an educational institution, but that it is a representative of the news media. In that capacity, it is eligible for preferential pricing under FOIA.


    As originally enacted in 1974, FOIA required generally that a person requesting records pay the costs of searching for and duplicating the documents requested, but provided, elliptically, that an agency must waive or reduce such fees if to do so would be "in the public interest because furnishing the information can be considered as primarily benefitting the general public." 5 U.S.C. Sec. 552(a)(4)(A) (1982). Through FIRA, Congress revised this framework by directing g vernment agencies to adopt fee regulations in compliance with a detailed set of statutory specifications that varies an agency's ability to charge fees depending both upon whether a requester has a particular status and upon whether the specific request is for a commercial or a non-commercial purpose.

    As thus amended, FOIA initially provides that an agency may properly charge a FOIA requester a fee sufficient to recover: the cost of searching for documents within the scope of the request; the "direct" cost of initially reviewing any documents unearthed by the search in order to determine whether they are disclosable; and the cost of duplicating the documents that are disclosed. 5 U.S.C. Sec. 552(a)(4)(A)(iv). An agency may require anyone making a request "for commercial use," 5 U.S.C. Sec. 552(a)(4)(A)(ii)(I), to reimburse it for all three types of recoverable costs. With respect to a request "not ... for commercial use," the agency may normally exact a fee based upon the costs of search and of duplication, but may not recover the cost of its review. 5 U.S.C. Sec. 552(a)(4)(A)(ii)(III). An exception is made, however, in cases of a request "not ... for commercial use" that is made by " an educational or noncommercial scientific institution, whose purpose is scholarly or scientific research; or a representative of the news media." 5 U.S.C. Sec. 552(a)(4)(A)(ii)(II). In such

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    cases, an agency may impose upon the requester only the cost of duplicating the records it releases. Id. In addition to these preferences based upon the nature both of the requester and of the request, FIRA provides a new standard for case-by-case waiver of fees for any request that is "in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the Government and is not primarily in the commercial interest of the requester." 5 U.S.C. Sec. 552(a)(4)(A)(iii).


    The Archive argues that it qualifies for preferential fee treatment under FOIA as, alternatively, an educational institution or a representative of the news media. The Government disputes both claims, of course, but it also argues that DoD's interpretation of FIRA, as reflected in its implementing regulations, is "owed great deference" by the court under the rule in Chevron USA, Inc. v. NRDC, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The Archive denies that Chevron applies, arguing that the de novo review provision of FIRA, 5 U.S.C. Sec. 552(a)(4)(A)(vii), which applies "[i]n any action by a requester regarding the waiver of fees under this section," governs the questions this case presents. We need not resolve this dispute, however. Even viewing the matter de novo, we do not believe that the Archive qualifies as an educational institution under FIRA. Contrariwise, even if we are to defer to an agency's reasonable interpretation of an ambiguous statutory term, the statute, read in light of the legislative history, Chevron, 467 U.S. at 843 n. 9, 104 S.Ct. at 2781 n. 9, is clear: Congress intended that an organization like the Archive qualify as a representative of the news media. We thus have no occasion to inquire into the reasonableness of DoD's conclusion to the contrary.

    1. "An Educational Institution "

      DoD's regulation provides that

      [t]he term "educational institution" refers to a preschool, a public or private elementary or secondary school, an institution of graduate 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. Sec. 286.33(e)(4). Assuming that our review is de novo, the question before us is whether the term refers exclusively to schools, as DoD maintains, or whether, as the Archive contends, we should read the statute more broadly to include "institutions that disseminate information to the public," such as a "non-profit private research institution and library" that makes its holdings available for public use.

      The ordinary meaning of the term "educational institution" is "school." The Archive does not dispute this point, but argues instead that we should not read "educational institution" as a single idiomatic term, but rather as a noun and an adjective. That is to say, the Archive suggests that we determine whether it is an institution the purpose of which is educational. Because (1) the Archive is an entity ("institution") that (2) seeks to make information available to the public ("educational"), it contends that (3) it is an "educational institution" under FIRA; it is all as simple as (1) plus (2) equals (3).

      We have no occasion, however, to evaluate the Archive's claim to be an institution with an educational purpose, for we are unwilling to adopt the strained interpretation of the statutory term that would make that question relevant. It is often the case that two words, used in conjunction, convey a meaning different from that which they would bear if interpreted separately. For instance, the common understanding of the term "parking ticket" is a notice of fine for the violation of a law governing the parking of vehicles. The Archive's interpretive approach, as applied to this example, would dictate that we read the term to refer to a ticket that has to do with parking, and therefore broaden it to include a permit to park in a particular lot. [*] We would be

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      disinclined to adopt such a strained construction of "parking ticket."

      The weakness in the Archive's position is reflected in its own argument when it points out that the Internal Revenue Service recognizes that "organizations, like Archive, that disseminate information to the public," are "organized and operated exclusively for ... educational purposes" within the meaning of 26 U.S.C. Sec. 501(c)(3). The Archive suggests that we adopt a similar reading of "educational institution" in FIRA. If, like Sec. 501(c)(3), FIRA referred to "institutions operated for an educational purpose," we might well agree with the Archive's interpretation, but the language of FIRA is different. The Archive's argument shows only that when Congress means a statute broadly to cover organizations that provide services that can be characterized as "educational," it has a model near to hand. It knows how to use it, too. See, e.g., 15 U.S.C. Sec. 77c(a)(4) (exempting from registration requirements of Securities Act of 1933 "[a]ny security issued by a person organized and operated exclusively for ... educational ... purposes ..."). Cf. 12 U.S.C. Sec. 1706e(k)(2) (defining as "qualified community organizations" under urban homestead programs entities that are, among other things, "exempt organizations under paragraph (3) or (4) of section 501(c) of Title 26"). Congress's use of the term "educational institution" here, on the other hand, suggests to us that it intends FIRA to apply to the narrower category of entities suggested by the ordinary meaning of that term.

      Our reading of the statute is also supported by its legislative history. In the 98th Congress, Representatives English and Kindness sponsored a bill to, inter...

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