Nat'l Sec. Counselors v. Dep't of Justice, Civil Action No. 13–cv–0556 TSC

• Decision Date: 18 February 2015
• Docket Number: Civil Action No. 13–cv–0556 TSC
• Citation: 80 F.Supp.3d 40
• Parties: National Security Counselors, et al., Plaintiffs, v. Department of Justice, Defendant.
• Court: U.S. District Court — District of Columbia

80 F.Supp.3d 40

National Security Counselors, et al., Plaintiffs

v.Department of Justice, Defendant.

Civil Action No. 13–cv–0556 TSC

United States District Court, District of Columbia.

Signed February 18, 2015

Kelly Brian McClanahan, National Security Counselors, Arlington, VA, for Plaintiffs.

Jeremy S. Simon, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

Judge Tanya S. Chutkan

Plaintiffs National Security Counselors (“NSC”), Jeffrey Stein, and Truthout seek relief pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552,¹ against Defendant the Department of Justice (“DOJ”) for certain actions of the Federal Bureau of Investigation (“FBI”), an agency within the DOJ, the DOJ's Civil Division, and the DOJ's Office of Information Policy (“OIP”). Pending before the Court are Defendant's Motion for Summary Judgment and Plaintiffs' Cross–Motion for Partial Summary Judgment or, in the Alternative, Discovery.² For the reasons that follow, the Court grants Defendant's Motion and denies Plaintiffs' motion.

I. PROCEDURAL HISTORY

Counts I and II of the Complaint concern NSC's FOIA request of the FBI for the most recent version of the FBI's Manual of Administrative Operations and Procedures (“MAOP”). (Compl.¶¶ 9–40).³ Count III concerns three FOIA requests, one by each Plaintiff, for which Plaintiffs claim the FBI proposed excessive fees. (Id. ¶¶ 41–67). In Count IV, NSC challenges fee waiver denials for two of its other FOIA requests. (Id. ¶¶ 68–80). The parties agree that FBI's release of the MAOP to NSC at no charge renders Counts I and II moot,⁴ and therefore only Counts III and IV remain before the Court for resolution.

a. Count III—The Fee Determination Claims

Pertinent to Count III, each Plaintiff submitted three separate FOIA requests to the FBI (collectively, the “First Requests”). NSC requested an electronic copy of the MAOP (“NSC's Request”). (Hardy Decl. Ex. A). Stein requested all information posted on the internal FBI Records Management Division (“RMD”) website⁵ (“Stein's Request”). (Id. Ex. N). Truthout requested records regarding the Campus Liaison Initiative (“Truthout's Request”). (Id. Ex. Q). NSC's Request and Stein's Request sought fee waivers. (Id. Ex. A, Ex. N). Stein's Request also included the following: “Mr. Stein specifically absolves the FBI of its responsibility to make interim releases and directs the FBI to provide all responsive records on one CD at the end of its processing of this request unless all the records will not physically fit on one CD.” (Id. Ex. N at 4) (emphasis in original). The FBI responded in turn to each of the First Requests. (Id. Ex. I, FBI's response to NSC's Request; Ex. P, FBI's response to Stein's Request; Ex. R, FBI's response to Truthout's Request).

In response to NSC's Request, the FBI denied a fee waiver (Id. Ex. H) and stated that it located approximately 2,038 potentially responsive pages. (Id. Ex. I). The FBI stated that NSC had the option of obtaining the records on five CDs, at $15 per 500–page CD less $10 for the first 100 pages,⁶ for a total of $65. (Id. ) In response to Stein's Request, the FBI denied a fee waiver, offered a first interim release without charge, and indicated it had located approximately 21,753 additional potentially responsive pages. (Hardy Decl. Ex. P at 2). The FBI informed Stein that at ten cents per page, he would owe $2,175.30 in duplication fees for paper copies or $15 per 500–page CD less $10 for the first 100 pages, or $665.00 for 44 CDs. (Id .) In response to Truthout's Request, the FBI stated it had located approximately 26,000 potentially responsive pages, (Hardy Decl. Ex. R), and at ten cents per page, Truthout would owe $2,590 in duplication fees for paper copies ($2,600 less $10 for the first 100 pages) or $15 per 500–page CD less $10 for the first 100 pages, or $765 for 52 CDs. (Id .)

The FBI's responses to the First Requests were consistent with its FOIA CD interim release policy (“IRP”). In an effort to respond more efficiently to the large volume of FOIA requests it receives,⁷ the FBI instituted its IRP for responding to “medium-queue” and “large-queue” requests by offering interim releases on CD–ROM in 500–page increments and charging $15 per disc.⁸ (Hardy Decl. ¶ 33).

NSC appealed the FBI's fee waiver denial and offer to produce documents on five CDs to the OIP, claiming that the FBI “should be made to follow our clear directions and release the entire current MAOP on one CD, which according to FBI guidelines is to be provided free of charge.” (Id. Ex. J at 3). Stein claims he did not appeal the FBI's IRP proposal for his request “since OIP had upheld FBI's 500–page practice multiple times before and had never to his knowledge reversed it. An appeal of FBI's determination would have been futile.” (Compl.¶ 50). Truthout appealed the FBI's CD IRP fee offer, which Truthout claimed would “requir[e] the payment of significantly more duplication fees than would be necessary if the CDs were filled to capacity.” (Hardy Decl. Ex. S at 1). In its appeal, Truthout stated: “Truthout specifically absolves the FBI of its responsibility to make interim releases and directs the FBI to fill each CD to capacity and charge Truthout accordingly for the actual number of CDs used. This means that the FBI may not arbitrarily limit each CD to approximately 500 pages.” (Id . (emphasis in original)).⁹

On March 12, 2013, OIP informed Truthout that it had closed its fee determination appeal because Truthout was a plaintiff in the District Court case Shapiro v. DOJ, No. 12–1883 (D.D.C.) (BAH), which involved the same issue.¹⁰ (Hardy Decl. Ex. U). On May 23, 2012, the OIP affirmed the FBI's $65 IRP fee determination and fee waiver denial as to NSC. (Id. Ex. L). In Count III, NSC, Stein, and Truthout challenge the IRP fee determinations the FBI offered in response to the First Requests.

Insofar as the FBI's IRP is concerned, Plaintiffs claim that, since they frequently make FOIA requests for voluminous electronic records, they “stand to continue to be harmed by this ongoing practice in the future.” (Compl.¶ 62). Plaintiffs claim that “[a]s long as this policy is in effect, Plaintiffs will be required to pay more for these releases than FOIA authorizes, which will force them to choose between spending additional money or not receiving the records they seek.” (Id .¶ 64). Plaintiffs ask the Court to declare that the FBI “is in violation of its statutory responsibilities under FOIA” and seek an injunction compelling FBI, pursuant to FOIA, to place as many pages on a single CD as will fit “if a requester gives informed consent waiving his right to interim releases.” (Id .¶ 65). Alternatively, Plaintiffs ask the Court to enjoin FBI “from charging requesters for multiple CDs if it elects to provide multiple CDs after receiving such informed consent.” (Id .¶ 66).

b. Count IV—The Fee Waiver Denial Claims

Count IV involves two separate FOIA requests by NSC. (Compl.¶¶ 68–80). In one, NSC sought from the DOJ Civil Division “a list of all FOIA cases handled by the Federal Programs Branch (‘FPB’) between 2000 and the present” or, in the alternative, notices of appearances filed by FPB attorneys in FOIA cases during that time period (the “Second Request”). (Kovakas Decl., Ex. A). NSC sought a public interest fee waiver for the Second Request. (Id .) The Civil Division acknowledged receipt of this request and denied NSC a public interest fee waiver. (Id .Ex. B). NSC appealed this denial to OIP, (Id .Ex. C), and OIP affirmed it. (Id .Ex. D).

In its other FOIA request, NSC sought from the Civil Division sworn declarations made by agency representatives in FOIA or Privacy Act cases involving as defendants one or more of six specific federal agencies and the FBI between 2002 and 2006 (the “Third Request”). (Id .Ex. E). NSC again sought a public interest fee waiver. (Id .) The Civil Division acknowledged receipt of this request and denied NSC's fee waiver request. (Id .Ex. F). NSC appealed this denial to OIP (Id .Ex. G) and OIP affirmed it. (Id .Ex. H). NSC now contends that it “has a legal right under FOIA to receive a public interest fee waiver for both of these requests, and there is no legal basis for the denial by DOJ of said right.” (Compl.¶ 80).

II. LEGAL STANDARD

Summary judgment is appropriate where there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c) ; Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Waterhouse v. Dist. of Columbia, 298 F.3d 989, 991 (D.C.Cir.2002). In determining whether a genuine issue of material fact exists, the court must view all facts in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The moving party bears the “initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits ... which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548 (internal quotation marks omitted). The nonmoving party, in response, must “go beyond the pleadings and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.” Id . at 324, 106 S.Ct. 2548 (internal quotation marks omitted). “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249–50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (citations omitted).

FOIA cases are typically and appropriately decided on motions for summary judgment. Gold Anti–Trust Action Comm., Inc. v. Bd. of Governors of Fed. Reserve Sys., 762 F.Supp.2d 123, 130...