Lybarger v. Cardwell, 77-1531

• Decision Date: 23 June 1978
• Docket Number: No. 77-1531,77-1531
• Parties: 3 Media L. Rep. 2612 Barbara E. LYBARGER et al., Plaintiffs, Appellants, v. James Bruce CARDWELL et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 764

577 F.2d 764

3 Media L. Rep. 2612

Barbara E. LYBARGER et al., Plaintiffs, Appellants, v. James Bruce CARDWELL et al., Defendants, Appellees.

No. 77-1531.

United States Court of Appeals First Circuit.

Argued May 2, 1978.

Decided June 23, 1978.

Mitchell I. Greenwald, Cleveland, Ohio, with whom Mark S. Coven, Concord, N.H., and Charles R. Capace, Boston, Mass., were on brief, for appellants.

Patricia G. Reeves, Atty., Appellate Section, Civ. Div., Dept. of Justice, with whom Barbara Allen Babcock, Asst. Atty. Gen., Washington, D. C., Edward F. Harrington, U. S. Atty., Boston, Mass., and Leonard Schaitman, Atty., Appellate Section, Civ. Div., Dept. of Justice, Washington, D. C., were on brief, for appellees.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

COFFIN, Chief Judge.

Plaintiffs in this case are representatives of the Supplemental Security Income Advocacy Center (the Advocacy Center), a non-profit organization funded by the federal Department of Health, Education and Welfare ¹ to assist applicants for and recipients of Supplemental Security Income benefits in obtaining the funds to which they are entitled. In order to better fulfill its duties, the Advocacy Center, pursuant to the Freedom of Information Act, 5 U.S.C. § 552, requested that it be sent a variety of government materials and handbooks from the Social Security Regional Commissioner's office and that the Advocacy Center be placed on a mailing list to receive as a matter of routine any updated materials. The Commissioner agreed to make the current materials available, but a dispute arose as to whether or not the Advocacy Center should be required to pay the copying costs ² of the information it requested. The Commissioner also refused to deliver updated materials to the Advocacy Center automatically.

Plaintiffs sought administrative review of the Commissioner's decision. When that proved unsuccessful they brought suit in district court to have the copying fees waived and to force the Commissioner to provide them with updated materials automatically. The district court denied them the relief they requested and plaintiffs appealed to this court. We affirm the district court's decision.

We should make it clear at the outset that the task before us is not to determine what would be the wisest, fairest, or most efficient method by which any federal agency, or the Social Security Administration in particular, should respond to requests for information under the Freedom of Information Act. We need only decide whether the Freedom of Information Act requires that the Social Security Regional Commissioner perform his responsibilities under the Freedom of Information Act in the manner demanded by the plaintiffs.

We turn first to the relevant statute and regulations concerning the issue of the waiver of fees. 5 U.S.C. § 552(a)(4)(A) states that

"In order to carry out the provisions of this section, each agency shall promulgate regulations, pursuant to notice and receipt of public comment, specifying a uniform schedule of fees applicable to all constituent units of such agency. Such fees shall be limited to reasonable standard charges for document search and duplication and provide for recovery of only the direct costs of such search and duplication. 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."

On its face this statute appears to vest considerable discretion in agencies to determine whether or not a party requesting information may be charged a reduced copying fee and complete discretion as to the amount of the reduction to be offered.

Plaintiffs, however, point to the following regulation, in effect at the time of their request, to support their demand for a complete waiver of copying fees: "It is the policy of the Social Security Administration to provide routine information to the general public without charge. Specific information services involving a benefit that does not accrue to the general public are subject to the payment of fees which are fixed in such amounts as to recover the cost to the Government of providing such services. Fees will be charged for the following special services. (1) Reproduction, duplication, or copying of records . . .." 20 C.F.R. § 422.440(b). Plaintiffs argue that this provision permits the Commissioner only two choices regarding...