Tps, Inc. v. U.S. Dept. of Defense, 00-15144.

• Decision Date: 03 June 2003
• Docket Number: No. 00-15144.,00-15144.
• Citation: 330 F.3d 1191
• Parties: TPS, INC., Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF DEFENSE; Defense Logistics Agency, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

330 F.3d 1191

TPS, INC., Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF DEFENSE; Defense Logistics Agency, Defendants-Appellees.

No. 00-15144.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 9, 2003.

Filed June 3, 2003.

Daniel E. Kensinger, Riverside, CA, for the plaintiff-appellant.

Kevin V. Ryan, United States Attorney, and Abraham A. Simmons, Assistant United States Attorney, San Francisco, CA, for the defendants-appellees.

Appeal from the United States District Court for the Northern District of California; Charles A. Legge, District Judge, Presiding. D.C. No. CV-99-01825-CAL.

Before NOONAN, McKEOWN, and RAWLINSON, Circuit Judges.

McKEOWN, Circuit Judge.

Under the Freedom of Information Act ("FOIA"), a federal government agency must provide documents in "any form or format requested" that is "readily reproducible by the agency." 5 U.S.C. § 552(a)(3)(B). Regulations governing production of electronic data under FOIA dictate "a standard of reasonableness" and "business as usual" as guiding principles. 32 C.F.R. § 286.4(g)(2). The focus of this controversy is interpretation of "business as usual" in the context of records that are requested in a particular electronic format. We conclude that "business as usual" is not restricted solely to response practices under FOIA but instead encompasses the normal business of the agency. Because material issues of fact exist regarding whether the Department of Defense regularly generates documents in the format at issue here, we reverse the district court's grant of summary judgment in favor of the government.

BACKGROUND

FOIA establishes the conditions under which government agencies "shall make available to the public information" and the methods by which agencies supply the information. 5 U.S.C. § 552. Under the 1996 amendments to FOIA, an agency responding to a FOIA request "shall provide the record in any form or format requested by the person if the record is readily reproducible by the agency in that form or format." Id. at § 552(a)(3)(B) (emphasis added); see also Pub.L. No. 104-231 (Electronic Freedom of Information Act Amendments of 1996). The regulations applicable to electronic data further provide that

when responding to FOIA requests for electronic data where creation of a record, programming, or particular format are questionable, Components should apply a standard of reasonableness. In other words, if the capability exists to respond to the request, and the effort would be a business as usual approach, then the request should be processed. However, the request need not be processed where the capability to respond does not exist without a significant expenditure of resources, thus not being a normal business as usual approach. As used in this sense, a significant expenditure of resources in both time and manpower, that would cause a significant interference with the operation of the Component's automated information system would not be a business as usual approach.

32 C.F.R. § 286.4(g)(2) (emphasis added).

Total Procurement Systems, Inc. ("TPS"), a company that gathers and markets information about government procurement contracts, sent a FOIA request to the Defense Logistics Information Service ("DLIS"), a unit of the Department of Defense ("DOD") in Battle Creek, Michigan. TPS sought the transmission of two files in "zipped" format.¹ The DOD responded that it could provide the file in one of two other electronic media, but that providing zipped files was not "business as usual" as defined by 32 C.F.R. § 286.4(g)(2), and that it therefore was not required to provide files in that form. Because of its previous experience in receiving zipped files from the agency, TPS filed suit in federal court, asking the court to order the DOD to provide the files in the format requested. The DOD moved for dismissal or, in the alternative, summary judgment, on the grounds that the data were not "readily reproducible" under 5 U.S.C. § 552(a)(3)(B) in the format requested by TPS due to the "significant time and expense" required, and that the reproduction therefore was not "business as usual." In support of its motion, the DOD submitted a declaration from Jeffrey Greger, a supply systems analyst with the DLIS, who claimed that TPS's request was "unique."² The government also offered twelve supporting exhibits.³

In response, TPS supplied two declarations stating that the DOD routinely provides files in zipped format. The first was from K.C. Chemelstrand, the president of a company providing services related to government information. Chemelstrand stated that since 1984, his company had received computer files from the DOD in the compressed format requested by TPS. The second declaration came from Richard Snyder, the president of TPS, who described TPS's procedures for gathering information and asserted that "TPS is only one (1) of thirteen (13) different businesses, that I am aware of, that receive `zipped' files on a daily basis."

In analyzing the parties' proffered evidence, the district court reasoned that because neither of TPS's declarations indicated whether the zipped files had been obtained pursuant to a FOIA request or under a separate contract with the government, they did not answer whether sending zipped files was "business as usual" in the context of satisfying FOIA requests. The court accordingly struck the TPS declarations as insufficient and relied only on the evidence supplied by the DOD. Concluding that the information was not "readily reproducible" by the agency in zipped form, and that the compressed reproduction therefore was not "business as usual," the court granted summary judgment for the government.⁴

STANDARD OF REVIEW

In the Ninth Circuit, we approach FOIA summary judgment appeals in a different manner from the typical de novo review of a grant of summary judgment. We generally conduct a two-step review,⁵ in which the first step is an inquiry into whether the district court's ruling is supported by an adequate factual basis. See Fiduccia v. United States Dep't of Justice, 185 F.3d 1035, 1040 (9th Cir.1999). If an adequate factual basis exists, we variously use de novo review or clear error review. See Maricopa Audubon Soc'y v. United States Forest Serv., 108 F.3d 1082, 1085 (9th Cir.1997) ("Our standard of review in FOIA cases is unclear. Recent cases in this circuit have applied different standards: some have reviewed the summary judgment de novo, while others have decided only whether the district court's ruling was clearly erroneous." (internal citations omitted)).

Because the threshold issue before us on this appeal is a legal interpretation of "business as usual," and not a review of the contents of the document itself, de novo review is appropriate. See Monjaraz-Munoz v. INS, 327 F.3d 892 (9th Cir.2003) ("Questions of law are reviewed de novo...."). Once the legal issue is resolved, it falls to the district court to benchmark the evidence against the legal standard. Because this case does not involve deference to factual findings, de novo review is consistent with our prior cases.

DISCUSSION

The question before us is interpretation and application of the "business as usual" standard in the regulations related to electronic data. The district court's restrictive reading of this phrase provided the foundation for both its evidentiary ruling excluding TPS's declarations and its ultimate conclusion in favor of the DOD. The court determined that the two TPS declarations did not address whether the parties received zipped files in the context of FOIA requests or pursuant to separate contracts with the government. The court therefore granted the government's motion for summary judgment because "[t]he record reflects that, under FOIA, the transmission of `zipped' files or the compressing of files to be transmitt[ed] electronically is not common; indeed, the record reflects the agency, under FOIA, do[es] not produce zipped files. Production to plaintiff by this manner would not be business as usual for the agency" (emphasis added).

I. LEGAL STANDARD — "BUSINESS AS USUAL"

The language of FOIA does not support a reading that distinguishes between "business as usual" for FOIA requests and "business as usual" for activities that are part of the agency's business. FOIA requires that a government agency supply documents in any format requested as long as the information is "readily reproducible by the agency in that form or format." 5 U.S.C. § 552(a)(3)(B). Under the regulations, a FOIA request must be processed if "the capability exists to respond to the request." 32 C.F.R. § 286.4(g)(2). The statute, on its face, requires that the agency satisfy a FOIA request when it has the capability to readily reproduce documents in the requested format. We see no reason to give FOIA the narrow reading crafted by the district court. Indeed, it would seem anomalous for an agency that is regularly reproducing documents in a particular format as part of its ongoing business to be able to shield itself from similar production under FOIA.

The regulations also specify that an agency need not process requests that would involve a "significant interference with the operation" of the agency's information system. Id. The language suggests that these provisions are intended simply to preclude requestors from forcing unusual requests that would impose unreasonable or additional burdens on an agency's data system, personnel, or resources. When an agency already creates or converts documents in a certain format—be it for FOIA requestors, under a contract, or in the ordinary course of business—requiring that it provide documents in that format to others does not impose an unnecessarily harsh burden, absent specific, compelling evidence as to significant interference or burden.

This interpretation is bolstered by the statute's history and purpose. Congress prefaced the 1996 FOIA amendments with a statement of Findings and...