McClellan Ecological Seepage Situation v. Carlucci, 86-15050

• Citation: 835 F.2d 1282
• Decision Date: 31 December 1987
• Docket Number: No. 86-15050,86-15050
• Parties: McCLELLAN ECOLOGICAL SEEPAGE SITUATION; Mary Fisher; Charles Yarbrough, Plaintiffs-Appellants, v. Frank C. CARLUCCI, Secretary of the U.S. Department of Defense, Defendant- Appellee. *
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1282

835 F.2d 1282

McCLELLAN ECOLOGICAL SEEPAGE SITUATION; Mary Fisher Charles Yarbrough, Plaintiffs-Appellants, v. Frank C. CARLUCCI, Secretary of the U.S. Department of Defense, Defendant- Appellee. ^*

No. 86-15050.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Oct. 9, 1987.

Decided Dec. 31, 1987.

Michael Axline, Eugene, Or., for plaintiffs-appellants.

John P. Schnitker, Dept. of Justice, Civil Div., Washington, D.C., for defendant-appellee.

Appeal from the United States District Court for the Eastern District of California.

Before TANG and BEEZER, Circuit Judges, and LYNCH, ^** District Judge.

BEEZER, Circuit Judge:

Requesters McClellan Ecological Seepage Situation (MESS), a nonprofit association, and Charles Yarbrough and Mary Fisher, individual members of the association, requested that McClellan Air Force Base officials waive all search and copying fees on a Freedom of Information Act (FOIA) request. The fees were reduced by twenty-five percent. Requesters sued the Secretary of Defense (Secretary) to obtain a full fee waiver. The district court granted summary judgment in favor of the Secretary. We affirm.

I

Requesters submitted a FOIA request to McClellan Air Force Base officials. The FOIA request asked for information about water pollution at McClellan Air Force Base (AFB); that information consisted of twenty-five categories of records. The FOIA request also asked for a waiver of search and copying fees pursuant to 5 U.S.C. Sec. 552(a)(4)(A) (1982, amended 1986).

The AFB's FOIA officer replied to the requests. He noted that the individual requesters were among individuals who had filed claims against the Air Force for damage and injury from toxic waste disposal. He then posed twenty-three questions to requesters, the answers to which he deemed pertinent to a decision to waive or reduce the fees. Full fees would amount to $52,268.00.

The lawyer for requesters, Michael Axline (Axline), described the FOIA officer's questions as irrelevant. Nevertheless, Axline responded to a question about the relationship between his office, the Western Natural Resources Law Clinic, and Duane Miller (Miller), the lawyer representing members of MESS who had filed tort claims against the Air Force. Axline stated that his Clinic was not involved with prosecuting the tort claims. He then acknowledged consulting with Miller prior to making the FOIA request:

Mr. Miller asked the Clinic to ascertain, on behalf of MESS and others affected or potentially affected by pollution from McClellan, whether any public law actions existed which would ensure agency compliance with federal law.

Finally, repeating that the FOIA officer should waive search and copying fees, Axline said he was willing to assist in narrowing the FOIA request.

The FOIA officer again wrote to requesters seeking an answer to his questions before he proceeded to a fee decision. The FOIA officer pointed out that five or six days before requesters filed their FOIA request, representatives from the base had asked Miller to document and clarify allegations in the tort claims of the individual requesters and others.

Axline next spoke with other representatives of the AFB, but Axline was not able to resolve differences with respect to the fee waiver. The FOIA officer then made his final decision to reduce requesters' search and copying fees by twenty-five percent, subject to appeal within the Air Force.

The district court action sought a declaration that the FOIA officer's denial of the fee waiver was arbitrary and capricious. The district court granted summary judgment in favor of the Secretary.

A week later Congress amended 5 U.S.C. Sec. 552(a)(4)(A), the statute governing waiver of fees on FOIA requests. The amendment took effect April 25, 1987. See Freedom of Information Reform Act of 1986, Pub.L. No. 99-570, Sec. 1804(b)(1), 100 Stat. 3207-50 (1986). The amendment "shall apply with respect to any requests for records, whether or not the request was made prior to such date, and shall apply to any civil action pending on such date." Id. at Sec. 1804(b)(2).

The amendment alters the test for waiving or reducing fees on FOIA requests. Under the old test, an agency was required to waive or reduce fees when to do so was "in the public interest because furnishing the information can be considered as primarily benefiting the general public." 5 U.S.C. Sec. 552(a)(4)(A) (1982, amended 1986). Under the new test,

Documents shall be furnished without any charge or at a charge reduced ... 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. Sec. 552(a)(4)(A)(iii) (1982 and Supp. IV 1986).

In addition, the amendment alters the standard of judicial review for waiver of fees. A court no longer applies the "arbitrary and capricious" standard to an agency's action. Instead, "[i]n any action by a requester regarding the waiver of fees under this section, the court shall determine the matter de novo: Provided, That the court's review of the matter shall be limited to the record before the agency." Id. at Sec. 552(a)(4)(A)(vii).

II

Accordingly, we review de novo the FOIA officer's decision to reduce fees by 25 percent, limiting our review to the record before the FOIA officer. ¹ We have jurisdiction under 28 U.S.C. Sec. 1291.

The amended statute "is to be liberally construed in favor of waivers for noncommercial requesters." 132 Cong.Rec. S14298 (Sept. 30, 1986) (Sen. Leahy). The amendment's main purpose was "to remove the roadblocks and technicalities which have been used by various Federal agencies to deny waivers or reductions of fees under the FOIA." 132 Cong.Rec. S16496 (Oct. 15, 1986) (Sen. Leahy). In interpreting section 552(a)(4)(A)(iii), we will heed the legislative intent.

Section 552(a)(4)(A)(iii) sets out a two-part test for establishing if disclosure requires an agency to waive or reduce fees: disclosure must be "likely to contribute significantly to public understanding of the operations or activities of the government," and disclosure must be "not primarily in the commercial interest of the requester." Id. Hoping to skirt this two-part test, requesters argue that disclosure to a public interest group presumptively requires an agency to waive fees. Legislative history, however, makes plain that public interest groups must satisfy the statutory test: "Although public interest groups do not fall within the most favorable fee category, all public interest groups--regardless of their status or identity or function--will be able to qualify for fee waivers and thereby obtain documents without charge if their requests meet the standard for waivers." 132 Cong.Rec. H9463 (Oct. 8, 1986) (Rep. English).

One part of the fee waiver test demands that disclosure of the information be "not primarily in the commercial interest of the requester." ² 5 U.S.C. Sec. 552(a)(4)(A)(iii). Both Charles Yarbrough and Mary Fisher have filed claims for damages. Other members of MESS have filed claims as well. For the purpose of establishing whether disclosure is in the commercial interest of MESS, this court will attribute the members' claims for damages to MESS itself. See Critical Mass Energy Project v. Nuclear Reg. Com'n, 830 F.2d 278 (D.C.Cir.1987).

Claims for damages do not constitute a commercial interest--at least not when the claims are grounded in tort. The D.C. Circuit has held that the term "commercial" is to be given its ordinary meaning when read in conjunction with FOIA. Public Citizen Health Research Group v. Food and Drug Administration, 704 F.2d 1280, 1290 (D.C.Cir.1983) (discussing exemption to FOIA). Information is commercial if it relates to commerce, trade, or profit. See Department of Defense Freedom of Information Act Program, 52 Fed.Reg. 13641, 13655 (1987) (to be codified at 32 C.F.R. 286.33) (defining categories of requesters for fee assessment). Information helpful to a tort claim furthers a requester's interest in compensation or retribution, but not an interest in commerce, trade, or profit. Therefore requesters have no commercial interest in disclosure of the information; they satisfy this part of the fee waiver test.

The other part of the fee waiver test demands that disclosure of the information be "likely to contribute significantly to public understanding of the operations or activities of the government." 5 U.S.C. Sec. 552(a)(4)(A)(iii). To satisfy this part of the test, the best evidence requesters can point to is their first letter seeking a waiver of fees. In that letter requesters stated that they seek to benefit the general public, especially in Sacramento; that information may be used in litigation to ensure that agencies comply with federal law; and that the information ultimately will be donated to a public institution.

These statements do not support a summary conclusion that the agency must waive all fees. Requesters acknowledge that "[a] requester seeking a fee waiver bears the initial burden of identifying the public interest to be served." National Treasury Employees Union v. Griffin, 811 F.2d 644, 647 (D.C.Cir.1987). In a case under the former fee waiver statute, the requester had made conclusory statements, such as that the information " 'will improve Government efficiency and culpability.' " Id. at 646, quoting from record. The court stated that an agency may infer a lack of substantial public interest "[w]hen a public interest is asserted but not identified with reasonable specificity, and circumstances do not clarify the point of the requests." Griffin, 811 F.2d at 647.

That case offers an analogy: here requesters do not explain with reasonable specificity how disclosure will contribute to public understanding. If conclusory statements supported a fee waiver for this request, then similar...