Carney v. U.S. Dept. of Justice
| Decision Date | 23 March 1994 |
| Docket Number | D,No. 724,724 |
| Citation | 19 F.3d 807 |
| Parties | David CARNEY, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF JUSTICE, Defendant-Appellee. ocket 93-6133. |
| Court | U.S. Court of Appeals — Second Circuit |
David Carney, pro se.
Robert S. Whitman, Civ. Div., U.S. Dept. of Justice, Washington, DC (Frank W. Hunger, Asst. Atty. Gen., Washington, DC, Patrick H. NeMoyer, U.S. Atty. W.D.N.Y., Leonard Schaitman, Civ. Div., U.S. Dept. of Justice, Washington, DC, of counsel), for defendant-appellee.
Before FEINBERG, TIMBERS and MINER, Circuit Judges.
Plaintiff-appellant David Carney appeals from a judgment entered on April 27, 1993 in the United States District Court for the Western District of New York (Telesca, J.), granting summary judgment in favor of defendant-appellee the United States Department of Justice ("DOJ") and dismissing Carney's complaint in an action brought to compel disclosure of records under the Freedom of Information Act ("FOIA"), 5 U.S.C. Sec. 552 (1988). The district court found that Carney was not entitled to discovery under Rule 56(f) of the Federal Rules of Civil Procedure; that there were no genuine issues of fact relating to the adequacy of the DOJ's disclosure of records; that declarations submitted by the DOJ were in the form required by Rule 56(e); and that the DOJ properly denied Carney's demand for the fee waiver available under the FOIA for persons who use disclosed information in the public interest and for the fee reduction available to representatives of the news media. Id. Sec. 552(a)(4)(A). In accordance with the following, we reverse on the fee waiver issue and affirm in all other respects.
Carney is a member of the Alaska Bar and a doctoral student in political science at the University of Rochester. He currently is working on a dissertation regarding the role of the DOJ in the federal judicial selection and confirmation process. Beginning in October of 1990, Carney submitted numerous, extensive requests to several subdivisions of the DOJ pursuant to the FOIA.
Carney sent five requests to the Office of Legal Counsel ("OLC"). Through these requests Carney sought, inter alia, personnel information about OLC staff members; records pertaining to numerous Supreme Court nominations and potential nominations; communications between DOJ staff members and the President; records pertaining to the impeachment of certain Supreme Court Justices; records pertaining to Anita Hill; policy statements and other records relating to the judicial selection process; and records relating to OLC practices in complying with FOIA requests, including his own.
The OLC's search produced 111 boxes of documents responsive to Carney's first request, with each box containing about 5000 pages. Twenty-five of these boxes, along with forty-seven individual documents, were made available to Carney. Some of the pages in these boxes and in the individual documents were excised pursuant to the deliberative process and attorney-client exemptions, 5 U.S.C. Sec. 552(b)(5) ("Exemption 5"), and the privacy exemption, id. Sec. 552(b)(6) ("Exemption 6"). The remaining eighty-six boxes were not made available to Carney. Nineteen of the eighty-six boxes contained documents originating in other agencies and DOJ subdivisions. The OLC offered to refer these documents to the originating agency or subdivision for processing, but Carney did not respond to the offer. The OLC withheld the remaining sixty-seven boxes pursuant to Exemptions 5 and 6. In response to Carney's other requests, the OLC made about twenty documents available to Carney, some with excisions pursuant to Exemption 6, and withheld about sixty responsive documents pursuant to Exemption 5 and the Privacy Act exemption for information compiled in anticipation of civil litigation, 5 U.S.C. Sec. 552a(d)(5).
The Office of Information and Privacy ("OIP") of the DOJ processed requests by Carney directed to the Office of the Attorney General, the Office of Public Affairs and the Office of Legislative Affairs. The requests to these offices sought information similar to that sought from the OLC. The OIP provided numerous items responsive to Carney's requests, including records pertaining to third parties, such as previous FOIA and Privacy Act requesters, as well as DOJ employees. Pursuant to Exemption 6, the OIP excised portions of the documents it provided. The Civil Rights Division responded to Carney's demands with over 450 pages of documents. In twenty-one of these documents personal information was excised pursuant to Exemption 6.
Along with his voluminous FOIA requests, Carney asked each of the DOJ subdivisions to which he had addressed his demands to exempt him from payment of the standard FOIA search fees. Carney contended that he was entitled to the exemptions under the FOIA provision allowing fee waivers or fee reductions "if disclosure of information 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). He also contended, as to some of his requests, that he was entitled to the fee reduction available to members of the news media. See id. Sec. 552(a)(4)(A)(ii)(II). Carney argued that he was entitled to the fee waivers because he was writing a dissertation and a book on the subject of the DOJ's role in the judicial selection process and that he intended to write scholarly articles for academic journals and already had written two newspaper articles dealing with the same subject. According to Carney, very little has been written on the role of the DOJ in the selection and confirmation process. In later communications with the DOJ, Carney indicated that he planned to use the disclosed material in college classes that he teaches and that he would make presentations and present papers based on the information.
Carney's requests for fee waivers were denied by each of the DOJ subdivisions. The OLC gave two reasons for denying Carney's request: (1) that Carney had not supplied sufficient evidence that dissemination of any dissertation, book, or article he wrote would be broad enough to justify a waiver; and (2) that, because most of the records produced by the OLC were subject to the attorney-client and deliberative process privileges encompassed in Exemption 5, release of any non-exempt documents would not "contribute significantly" to the public understanding of governmental operations and activities. The OLC estimated that the search costs associated with Carney's request would be about $500 and demanded a $250 advance payment before it would undertake the search. Carney made the required advance payment. The OLC later revised its estimate to $750, and Carney committed himself to pay that amount as well.
The OIP denied Carney's request for a fee waiver, stating that the information sought by Carney already had been released to other requesters and "disclosure of the same material to [Carney] [was] not likely to contribute significantly to an understanding of government operations or activities in the area of federal judicial nominations." The OIP estimated its search fee to be $720, which Carney committed himself to pay. Finally, the Civil Rights Division denied Carney's request for a fee waiver, stating that Carney had failed to demonstrate that disclosure of the records he requested would contribute significantly to the public understanding of governmental operations. The Civil Rights Division assessed $34.80 to Carney in duplication fees, which Carney paid. Carney timely filed administrative appeals challenging the assessment of fees by the various DOJ subdivisions.
Carney filed a complaint in the district court on May 15, 1992, commencing an action to compel compliance with the FOIA demands to which the DOJ subdivisions had not yet responded. The complaint includes allegations that the DOJ improperly withheld records notwithstanding Carney's valid requests under the FOIA; improperly denied his request to be furnished documents without a fee, or at a reduced fee, pursuant to 5 U.S.C. Sec. 552(a)(4)(A)(iii); and wrongfully collected fees from him. Along with his complaint, Carney served interrogatories, document requests and a demand for inspection. He also sent a letter to the DOJ stating his intention to conduct numerous depositions.
In June of 1992, the DOJ moved to stay discovery to allow it to finish processing Carney's FOIA requests. Magistrate Judge Fisher, to whom all non-dispositive motions had been assigned, stayed discovery and set a deadline of December 15, 1992 for the DOJ to process the outstanding FOIA requests. The DOJ subdivisions responded in the manner previously described.
On January 20, 1993, the DOJ moved for summary judgment as to the withheld documents. In support of the motion, it submitted three declarations describing the searches undertaken by the DOJ subdivisions in response to Carney's requests, identifying the responsive documents made available to Carney and explaining how the withheld documents fell within the applicable FOIA exemptions.
Carney did not challenge the DOJ's motion for summary judgment. Instead, he responded with several motions of his own: a motion to compel responses to his previous discovery requests; a motion pursuant to Rule 56(f) of the Federal Rules of Civil Procedure for leave to conduct discovery; and a motion to strike the declarations submitted by the DOJ in support of its summary judgment motion. In support of his Rule 56(f) motion, Carney submitted an affidavit explaining that, based upon over one hundred interviews he conducted with numerous individuals, including current and former DOJ officials, White House personnel, Senators and their staffs, and others, along with other research he had performed, he believed...
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