Judicial Watch, Inc. v. U.S. Dept. of Justice, Civ.A. 99-1234(PLF).

• Decision Date: 14 January 2002
• Docket Number: No. Civ.A. 99-1234(PLF).,Civ.A. 99-1234(PLF).
• Parties: JUDICIAL WATCH, INC., Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE, Defendant.
• Court: U.S. District Court — District of Columbia

185 F.Supp.2d 54

JUDICIAL WATCH, INC., Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE, Defendant.

No. Civ.A. 99-1234(PLF).

United States District Court, District of Columbia.

January 14, 2002.

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Larry Elliot Klayman, Judicial Watch, Inc., Washington, DC, for plaintiff.

Marina Utgoff Braswell, U.S. Attorney's Office, Washington, DC, for defendant.

OPINION

PAUL L. FRIEDMAN, District Judge.

Plaintiff Judicial Watch, Inc. filed suit pursuant to the Freedom of Information Act, 5 U.S.C. § 552, seeking information regarding the trade missions of the United States Department of Commerce from 1993 to 1998. Defendant has filed a motion for partial summary judgment, contending that before it continues to search for records responsive to plaintiff's request, plaintiff must indicate its willingness to pay fees or to authorize a particular amount of fees it is willing to pay. Plaintiff argues that it is entitled to a fee waiver either because the disclosure of information it requested is in the public interest or because Judicial Watch is a "representative of the news media." Judicial Watch also argues that the search conducted by defendant was inadequate.

Upon consideration of the arguments presented by the parties, the Court grants defendant's motion for partial summary judgment in part and denies it in part. It denies plaintiff's cross-motion for partial summary judgment.

I. BACKGROUND

By its own account, Judicial Watch is a "non-profit, non-partisan, tax-exempt 501(c)(3) organization which as a public interest law firm specializes in deterring, monitoring, uncovering, and addressing public corruption in government." Complaint ¶ 5 and Exhibit ("Ex.") 1, October 19, 1998, Letter from Larry Klayman, Judicial Watch, to Margaret A. Irving, Department of Justice ("Oct. 19 Letter") at 3. In its FOIA request, plaintiff requested that defendant release all documents relating to "United States Department of Commerce trade missions from January 1993 to [October 1998] and the decision of the Attorney General to not appoint an independent counsel to investigate the alleged sale of seats on said trade missions by the Clinton Administration and/or the Democratic National Committee." Complaint ¶ 5; Oct. 19 Letter at 1. Plaintiff also requested a fee waiver as a "representative of the news media" under 5 U.S.C. § 552(a)(4)(A)(ii)(II) and/or because the disclosure of the documents would in the public interest under 5 U.S.C. § 552(a)(4)(A). See id. ¶¶ 7-9, 11; Oct. 19 Letter at 2-4.

In a letter dated November 10, 1998, the Justice Department informed plaintiff that the request for a fee waiver had been denied on both grounds. See Complaint ¶¶ 7, 8, Ex. 2, November 10, 1998, Letter from Charlene Wright Thomas, Department of Justice, to Larry Klayman ("Nov. 10 Letter") at 1-3. Defendant explained that Judicial Watch would be categorized as an "other" requester and therefore entitled to only two hours of search time and 100 pages of records free of any search or duplication charge under 28 C.F.R. § 16.11(d). See Nov. 10 Letter at 2-3. Defendant also explained that it had searched for responsive documents for two hours and intended to produce those documents responsive to plaintiff's request; before defendant conducted any further searches, however, plaintiff would need to indicate its willingness to pay the normal search and duplication fees. See id. Plaintiff administratively appealed the denial of its request for a fee waiver. See Complaint ¶ 9, Ex. 3, January 11, 1999, Letter from Larry Klayman to the Office of Information and Privacy, Department of Justice ("Jan. 11 Letter") at 2-4.

The Office of Information and Privacy ("OIP") denied plaintiff's appeal, concluding that plaintiff's application for a fee waiver or fee reduction had been properly denied. See Complaint ¶ 10, Ex. 4, February 19, 1999, Letter from Richard L. Huff, Department of Justice, to Larry Klayman ("Feb. 19 Letter") at 1. Plaintiff also appealed to the OIP on the grounds that the search conducted was inadequate; the OIP denied plaintiff's appeal on that ground as well. See Complaint ¶¶ 13-25, Exs. 5-12.

II. DISCUSSION

A. Fee Waiver: Representative of the News Media

The Freedom of Information Act provides that each agency of the federal government shall promulgate regulations specifying a schedule of reasonable fees for document searches, duplication and review to be charged to FOIA requesters. See 5 U.S.C. § 552(a)(4)(A). It directs that the regulations also shall include procedures and guidelines for determining when such fees should be waived or reduced. See 5 U.S.C. § 552(a)(4)(A)(i). The agency's regulations should establish that the fees are "limited to reasonable standard charges for document duplication when records are not sought for commercial use and the request is made by ... a representative of the news media." 5 U.S.C. § 552(a)(4)(A)(ii)(II). The Department of Justice has promulgated regulations that define "representative of the news media" as "any person actively gathering news for an entity that is organized and operated to publish or broadcast news to the public." 28 C.F.R. § 16.11(b)(6). The D.C. Circuit has further defined a representative of the news media as "a person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience." National Security Archive v. United States Dep't of Defense, 880 F.2d 1381, 1387 (D.C.Cir.1989).

There is some disagreement as to the correct standard a court is to apply in considering a government agency's denial of a plaintiff's request for representative of the media status. Many of the judges of this Court have concluded that 5 U.S.C. § 552(a)(4)(A)(vii) is applicable in this situation and, based on the express language of that section, therefore have conducted a de novo determination limited to the record before the agency. See Judicial Watch, Inc. v. United States Dep't of Justice, Civil Action No. 99-2315, slip op. at 4-5 (D.D.C. Aug. 17, 2000) (Kollar-Kotelly, J.); Judicial Watch, Inc. v. United States Dep't of Justice, 133 F.Supp.2d 52, 53 (D.D.C.2000) (Robertson, J.); Judicial Watch v. United States Dep't of Justice, Civil Action No. 97-2869, slip op. at 2 (D.D.C. Aug. 25, 1998) (Urbina, J.). Judge Kennedy, however, has concluded that Section 552(a)(4)(A)(vii) is not applicable when determining whether the agency properly categorized the requester as a representative of the news media and that the more deferential arbitrary and capricious standard applies. See Judicial Watch II, 122 F.Supp.2d 5, 11-12 (D.D.C. 2000). This Court will determine de novo whether plaintiff is entitled to be classified as a representative of the news media based on the record before the agency.¹

Plaintiff represents that when it obtains documents through FOIA requests, "it allows reporters into its offices to inspect the documents" and that these reporters may write stories based on the information reviewed. Oct. 19, Letter at 3. It also states that it disseminates information by posting electronic copies of the documents received through its FOIA requests on Judicial Watch's website and by preparing press releases that are "blast faxed" to radio and television stations and to newspapers across the country. Id. Finally, it points to the fact that representatives of Judicial Watch, including Larry Klayman, "frequently appear on nationally broadcast radio and television programs." Id. at 4.

Judicial Watch does not characterize itself as an entity engaged in the broadcast and publication of news but rather as a non-profit public interest law firm specializing in "deterring, monitoring, uncovering and addressing public corruption in government." Complaint, Ex. 1 at 3; see also Judicial Watch III, slip op. at 6. From plaintiff's own characterization of its activities, the Court concludes that plaintiff is at best a type of middleman or vendor of information that representatives of the news media can utilize when appropriate. This relationship with the news media, however, does not make Judicial Watch a representative of the news media or entitle it to be considered as such for the purposes of a fee waiver under the FOIA. As the D.C. Circuit has made plain, when a party acts as a private library information vendor or middleman, the party does not qualify as a "representative of the news media" for purposes of the FOIA. See National Security Archive v. United States Dep't of Defense, 880 F.2d at 1386-87. "Merely making available information to the public does not transform a requester into a representative of the news media." Judicial Watch I, 122 F.Supp.2d at 20 (citing National Security Archive v. United States Dep't of Defense, 880 F.2d at 1386); but see Judicial Watch IV, 133 F.Supp.2d at 53-54. To be considered a representative of the news media, a requester must establish that it has "a firm intent to disseminate, rather than merely make available, the requested information." Judicial Watch II, 122 F.Supp.2d at 13; see Judicial Watch I, 122 F.Supp.2d at 20-21. This Court therefore concludes that Judicial Watch should not be classified as a representative of the news media for purposes of a fee waiver under the FOIA.

B. Fee Waiver: Public Interest

The FOIA also provides:

Documents shall be furnished without any charge or at a charge reduced below the fees established under clause (ii) [5 U.S.C. § 552(a)(4)(A)(ii)] if disclosure of the 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. § 552(a)(4)(A)(iii). Thus, in considering a public interest fee waiver request, the Court must determine whether the disclosure of the responsive documents is (...