Prison Legal News v. Lappin, Civil Action No. 05-1812(RBW).

• Citation: 436 F.Supp.2d 17
• Decision Date: 26 June 2006
• Docket Number: Civil Action No. 05-1812(RBW).
• Parties: PRISON LEGAL NEWS, Plaintiff, v. Harley G. LAPPIN, Director, Federal Bureau of Prisons, Defendant.
• Court: U.S. District Court — District of Columbia

436 F.Supp.2d 17

PRISON LEGAL NEWS, Plaintiff, v. Harley G. LAPPIN, Director, Federal Bureau of Prisons, Defendant.

Civil Action No. 05-1812(RBW).

United States District Court, District of Columbia.

June 26, 2006.

Edward J. Elder, Klimaski & Associates, P.C., Washington, DC, for Plaintiff.

Wyneva Johnson, U.S. Attorney's Office for D.C., Civil Division, Washington, DC, for Defendant.

MEMORANDUM OPINION

WALTON, District Judge.

The plaintiff, Prison Legal News ("PLN"), brings this action challenging the Federal Bureau of Prison's ("BOP") refusal to grant a waiver of all search and duplication fees associated with a document request made under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (2000). Complaint for Declaratory and Injunctive Relief ("Compl.") ¶¶ B, C. Currently before the Court are the parties' cross-motions for summary judgment directed to the propriety of the BOP's waiver denial.¹ For the reasons set forth below, this Court will grant the plaintiff's motion for summary judgment and deny the defendant's motion for summary judgment.

I. Background

PLN is a legal journal devoted to reporting news and litigation concerning detention facilities. Compl. ¶ 5. On August 6, 2003, PLN submitted a FOIA request to the BOP seeking "a copy of all documents showing all money paid by the [BOP] for lawsuits and claims against it" between January 1, 1996 and July 31, 2003. Pl.'s Opp'n, Ex. 1. Specifically, PLN sought "a copy of the verdict, settlement or claim in each case showing the dollar amount paid, the identity of the plaintiff/claimant and the legal identifying information for each lawsuit or claim or attorney fee award" and "a copy of the complaint ... or the claim . . . in each incident which describes the facts underlying each lawsuit and claim." Id. Additionally, PLN requested a waiver of all fees associated with processing the request and providing it with copies of the responsive documents. Id.

Under the FOIA, fees will be waived 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). To support its request for a fee waiver, PLN provided the following information in its letter to the BOP:

PLN is a § 501[c](3) non-profit organization. We are a serious legal and political journal that reports on news and litigation involving detention facilities. We have published monthly since 1990 and currently have around 3,400 subscribers in all 50 states. We [e]stimate our actual readership to [be] in the range of 18,000 people. We believe that the requested documents will shed light on the operations of the BOP and help provide the public with a better understanding of how the nation's prison system is run and managed since damage verdicts and settlements are an important means of measuring respect for constitutional rights within penal facilities. Moreover, the payout of government money is a strong indicator to tax payers of how government facilities are operated. The information requested is plainly related to the operations and activities of the BOP.

Pl.'s Opp'n, Ex. 1. PLN also made clear that, once produced, it would analyze and publish the requested information both in its magazine and on its website. Id. In a letter dated September 9, 2003, the BOP denied the fee waiver request because in the BOP's view the PLN request did not "explain how [the requested documents] would be of public interest." Pl.'s Opp'n, Ex. 2. That same letter notified PLN that the estimated cost of accommodating the request was $6,944.00 plus copying fees, but this fee could likely be reduced if PLN reformulated its request. Id.

PLN appealed the BOP's decision to the United States Department of Justice's Office of Information and Privacy ("OIP") pursuant to 28 C.F.R. § 701.16(a) (2000).² Pl.'s Opp'n, Ex. S. In a letter to the OIP dated October 20, 2003, PLN reasserted that the "public is greatly interested in the amount and manner in which their tax money is spent" and that "[m]edia review of government agency pay outs in litigation is a standard journalistic practice." Pl.'s Opp'n, Ex. 3. Nevertheless, on May 23, 2005, the OIP concluded that PLN's request for a fee waiver had been properly denied. Pl.'s Opp'n, Ex. 4. The OIP based its denial on two factors. First, the OIP found that PLN had not "demonstrated that it has both the intent and the ability to disseminate the requested records to the general public." Id. To support this conclusion, the OIP noted that posting information on a website does not, by itself, demonstrate that information will be communicated to the public. Id. Moreover, the OIP concluded that the PLN newsletter was also an insufficient vehicle for distributing information because the PLN website did not contain current copies of the publication. Id. Second, the OIP noted that some of the requested documents, namely complaints and verdicts, were publicly available. Id. Thus, the OIP concluded that "the level of the public's understanding would not be enhanced" by the release of information to which it already had access. Id.

On September 13, 2005, PLN filed this action seeking declaratory and injunctive relief and an order compelling the defendants to provide it with all documents responsive to its FOIA requests without any cost. Compl. at 1. Both parties have now filed motions for summary judgment. These motions are the subject of this opinion.

II. Standard of Review

A motion for summary judgment under Rule 56(c) will be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). When ruling on a motion for summary judgment, courts must view the evidence in the light most favorable to the non-moving party. Bayer v. Dep't of Treasury, 956 F.2d 330, 333 (D.C.Cir.1992). However, the non-moving party cannot rely on "mere allegations or denials ... but . . . must set forth specific facts showing that there are genuine issues for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (citation and internal quotation marks omitted).

III. Legal Analysis

The Court is presented with two issues in resolving the motions before it. First, the Court must determine who is the proper defendant in this action. Def.'s Mem. at 5. And, second, the Court must address whether the OIP properly denied the PLN request for a fee waiver. The Court will address each question in turn.

(A) Who is the Proper Defendant?

The defendant claims that the Department of Justice ("DOJ") is the only proper defendant in this FOIA action. Def.'s Mem. at 5. Specifically, the defendant argues that because the BOP is a component of the DOJ it does not qualify as an "agency" under 5 U.S.C. § 552(f), and therefore, because the DOJ was not named as a defendant, this case should be dismissed. Id. Before confronting that question, the Court must first determine who the plaintiff has named as the defendant. The caption of the plaintiff's complaint lists as the defendant "Harley G. Lappin, Director, FEDERAL BUREAU OF PRISONS." Compl. at 1. The caption would seem to indicate that Harley Lappin is being sued in his official capacity. The text of the complaint, however, asserts a claim against the BOP. Compl. ¶¶ 3, A-C. On the other hand, the plaintiff's pleadings filed in connection with the motions currently before the Court identify Director Lappin as the intended defendant. Pl.'s Opp'n at 9. The plaintiff does not appear to recognize that the two are not interchangeable and that only an agency can be a defendant in a FOIA action. See Jefferson v. Reno, 123 F.Supp.2d 1, 3 (D.D.C. 2000) (stating that under the FOIA, it is the agency's responsibility to produce the requested documents, and not the responsibility of an individual employee); Astley v. Lawson, No. 89-2806, 1991 WL 7162, at *9 (D.D.C. Jan.11, 1991) ("[T]he only proper defendants in a FOIA action are the agencies that allegedly improperly withheld documents."); Whittle v. Moschella, 756 F.Supp. 589, 596 (D.D.C.1991) (citing Petrus v. Bowen, 833 F.2d 581, 583 (5th Cir.1987)) (holding that the Court's jurisdiction is "limited to enjoining agency noncompliance, § 552(a)(4)(B), and consequently no [FOIA] claim may be asserted . . . against individual federal officials"); Sherwood Van Lines v. Dep't of Navy, 732 F.Supp. 240, 241 (D.D.C.1990) ("The plain language of the statute does not create a cause of action against individual employees of the federal agency."). Despite the inconsistencies in the plaintiff's papers, this Court must conclude that the named defendant in this action is the BOP, as designated in the text of the complaint. Compl. ¶¶ 3, A-C.

This Court now must determine whether the BOP is the proper defendant, or whether this action should have been commenced against the DOJ. The papers submitted by the parties provide only minimal guidance on this important issue. In fact, the defendant has offered no case authority in support of its position, and the cases cited by the plaintiff provide little useful assistance. Def.'s Mem. at 5-6; Pl.'s Opp'n at 9-10. Under the FOIA, this Court has the power "to enjoin [an] agency from withholding agency records and to order the production of any agency record improperly withheld." 5 U.S.C. § 552(a)(4)(B) (emphasis added). There appears to be some disagreement in this Circuit regarding what constitutes an "agency" as it pertains to the District Court's jurisdiction pursuant to the FOIA. Compare Lair v. Dep't of Treasury, No. 03-827, 2005 WL 645228, at *3 (D.D.C. Mar.21, 2005) (holding that naming component agencies as the defendant is proper because an...