Ettlinger v. FBI, Civ. A. No. 84-0066-K.

• Decision Date: 25 October 1984
• Docket Number: Civ. A. No. 84-0066-K.
• Parties: Norah Chase ETTLINGER, Plaintiff, v. FEDERAL BUREAU OF INVESTIGATION and Department of Justice, Defendants.
• Court: U.S. District Court — District of Massachusetts

596 F. Supp. 867

Norah Chase ETTLINGER, Plaintiff, v. FEDERAL BUREAU OF INVESTIGATION and Department of Justice, Defendants.

Civ. A. No. 84-0066-K.

United States District Court, D. Massachusetts.

October 25, 1984.

COPYRIGHT MATERIAL OMITTED

Edward Greer, Cambridge, Mass., for plaintiff.

Robert Martin, Sp. Asst. U.S. Atty., Stephen E. Suter, Office of Legal Counsel, F.B.I., Washington, D.C., for defendants F.B.I. & Dept. of Justice.

OPINION

KEETON, District Judge.

This is an action pursuant to the Freedom of Information Act ("Act" or "FOIA"), 5 U.S.C. § 552 (1982) in which the plaintiff, Norah Chase Ettlinger, seeks an order directing the defendants to waive all fees and costs involved in processing her requests for documents relating to Elba Chase Nelson, the head of the Communist Party of New Hampshire from 1933 until 1961, and Mrs. Nelson's two husbands, Fred Bates Chase and Charles I. Nelson. In addition, plaintiff seeks an order requiring defendant Federal Bureau of Investigation ("FBI") to produce all documents which the plaintiff has requested and supplemental documents which detail the FOIA exemptions that the defendant has used to withhold any requested documents or portions thereof — a so-called "Vaughn Index" order. See Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C.Cir.1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974).

I.

The plaintiff is a tenured professor at Kingsborough Community College of the City University of New York, who, working under four separate research grants, is in the process of preparing a biography of Elba Chase Nelson. The plaintiff is also the granddaughter of Elba Chase Nelson.

Plaintiff originally made formal FOIA requests for the FBI "main files" of Elba Chase Nelson and her two husbands to FBI Headquarters in Washington, D.C. ("FBIHQ") on August 9, 1982. At that time, she requested a reduction or waiver of fees from FBIHQ because she intended to use the information received to write a "scholarly biography" for which she had received a Mellon Community Colleges Project Fellowship and because she intended to donate any information received to the Elba Chase Nelson Collection in the Dartmouth College library archives. The FBI summarized the requested records which had been located at FBIHQ in a letter to the plaintiff dated December 28, 1982 and informed her that her request for a waiver of fees had been denied. On May 19, 1983, plaintiff sent new formal FOIA requests to the FBI Field Offices in Portsmouth and Concord, New Hampshire, requesting all the files and documents in those two offices relating to Mrs. Nelson and her husbands. She again requested a waiver of all fees and costs for those documents. On June 8, 1983, the plaintiff filed an administrative appeal pursuant to 5 U.S.C. § 552(a)(6) with the Department of Justice, Office of Legal Policy ("DOJ-OLP") to remedy the failure of the FBI to provide the requested documents within the time required by law and its failure to grant a fee waiver. Plaintiff's appeal to the DOJ-OLP following the FBI's failure to respond was denied in a letter dated July 21, 1983. That letter made no mention of the plaintiff's appeal on her fee waiver denial.

In an FBIHQ letter dated September 12, 1983, the FBI sent the plaintiff 476 pages of documents in response to her August 9, 1982, request and indicated the FOIA exemptions under which it was withholding an additional 108 pages of documents. The FBIHQ letter also informed the plaintiff that an additional 3,241 pages of requested documents had been located in FBI Field Offices in Boston, Indianapolis, and New York in response to her May 19, 1983 requests. The FBI stated it would take no further action on those documents until the plaintiff sent written confirmation of her willingness to pay the fees for them. Plaintiff replied in a letter dated October 20, 1983, that she was willing to incur the fees, but was reserving the right to continue pursuing a fee waiver. She also requested an immediate fee waiver determination. On January 6, 1984, FBIHQ notified the plaintiff by letter of delays in processing her requested field office documents and that her request for a fee waiver would be presented before the FBI Fee Waiver Board. Plaintiff then filed this action on January 12, 1984. The Department of Justice notified the plaintiff by letter dated June 6, 1984, that her administrative appeal of the FBI's negative fee waiver decision had been denied.

I will address the issue of the plaintiff's request for a fee waiver first and then the plaintiff's request for production of documents and a "Vaughn Index."

II.

The applicable provision of the FOIA, 5 U.S.C. § 552(a)(4)(A), authorizes agencies to impose "reasonable standard charges for document search and duplication" that are to recover only the direct costs of such operations, and further provides:

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.

The implementing Department of Justice regulation, 28 C.F.R. § 16.9(a) (1981) restates the statute and further provides that a determination that a fee waiver is in the public interest "shall ordinarily not be made unless the service to be performed will be of benefit primarily to the public as opposed to the requester, or unless the requester is an indigent individual."

Plaintiff argues that furnishing the information to her will primarily benefit the general public in three ways: (1) in her professional capacity as a tenured professor, she plans to use the information in teaching courses at her college, delivering guest lectures at other colleges, and in making written contributions to scholarly historical books; (2) she plans to publish a biography of Elba Chase Nelson which she asserts will be the "first scholarly study on the Communist Party in New England and its local organizers" (Affidavit of Norah Chase Ettlinger, ¶ 11 (June 23, 1984));¹ and (3) she intends to donate any information received to the already-existing Elba Chase Nelson Collection in the Dartmouth College library archives, once her book is completed.

The defendants contend that the information requested by the plaintiff would not result in any benefit to the general public nor would it be a matter of public interest for several reasons: (1) the public has not exhibited any continuing interest in the affairs of Elba Chase Nelson or her husbands; (2) their activities are not important to any current legal, social or political issues nor are they of historical significance or importance; (3) much of the releasable information is administrative, non-substantive or repetitive in nature; (4) some of the releasable records are public source materials (e.g., newspaper articles) already in the public domain; and (5) as the plaintiff is Elba Chase Nelson's granddaughter, the primary benefit of releasing the records accrues to the plaintiff, and not the general public. The defendants argue that their determination to deny the plaintiff a fee waiver was reasonable and methodical, based on a close review of the requested documents, and was therefore not arbitrary or capricious. They urge the court to uphold their denial.

The 1974 amendments to the FOIA, which included the fee waiver provision in 5 U.S.C. § 552(a)(4)(A), invested federal agencies with discretionary authority in determining when fees should not be charged. Lybarger v. Cardwell, 577 F.2d 764, 766 (1st Cir.1978); Conf.Comm.Rep., H.R.Rep. No. 1380, 93d Cong., 2d Sess. 8 (1974) hereinafter cited as 1974 Conference Report, reprinted in House Comm. on Government Operations & Senate Comm. on the Judiciary, 94th Cong., 1st Sess., Freedom of Information Act & Amendments of 1974 (P.L. 93-502) Source Book: Legislative History, Texts, and Other Documents 225 (Joint Comm. Print 1975) hereinafter cited as 1975 Source Book. Given the discretion afforded the defendants in this determination, the proper standard for judicial review of their denial of a fee waiver is whether that decision was arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law. 5 U.S.C. § 706(2)(A); Eudey v. Central Intelligence Agency, 478 F.Supp. 1175, 1176 (D.D.C.1979); Diamond v. Federal Bureau of Investigation, 548 F.Supp. 1158, 1160 (S.D.N.Y.1982); Blakey v. Department of Justice, 549 F.Supp. 362, 364 (D.D.C.1982).

Plaintiff urges a de novo standard of review in district court as was used in Rizzo v. Tyler, 438 F.Supp. 895, 899 (S.D.N. Y.1977). 5 U.S.C. § 552(a)(4)(B) provides for a "de novo" determination by the court in cases in which the complainant seeks "to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant." In Rizzo, 438 F.Supp. at 898, the court stated that "an attempt to condition disclosure of documents upon the payment of fees improperly imposed is the sort of improper withholding that this court may enjoin," and is therefore subject to de novo review. However, when an agency has been granted the authority to impose fees and some discretionary authority to waive those fees, a reviewing court must first determine whether the agency has, in fact, improperly refused to waive fees before it can determine whether that refusal is being used by an agency to improperly withhold records from the FOIA requester. Thus the de novo standard of review authorized by 5 U.S.C. § 552(a)(4)(B) for an agency's withholding of records should not be applied to initial judicial review of fee waiver denials under § 552(a)(4)(A). See Diamond v. FBI, 548 F.Supp. 1158, 1160 (S.D.N.Y.1982).

The issue in this case, then, is whether the defendants' determination to deny a fee waiver to the plaintiff was arbitrary, capricious or otherwise not in accordance with law. The defendants...