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In Eagle v. Department of Commerce, No. C0120591JF(PVT), 2003 WL 21402534 (N.D.Cal. April 28, 2003), the court granted a fee waiver to a requester whose project was "to review, synthesize, and supplement the information to provide a resource that did not otherwise exist."
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Case Number C-01-20591-JF (PVT)
April 28, 2003
ORDER RE MOTIONS FOR SUMMARY JUDGMENT
Before the Court are the parties' cross-motions for summary judgment. Having considered the briefing of the parties and the amici as well as the oral arguments of counsel, the Court will grant Plaintiffs motion and deny Defendants' motion.
By prior order, a request by several educational institutions to file an amicus brief was granted. The institutions are: the American Council on Education, the Association of American Universities, the National Association of Independent Colleges and Universities, the National Association of State Universities and Land Grant Colleges, the University of California, and the University of Southern California.
The Court thanks counsel and the parties for their patience in awaiting this decision.
I. BACKGROUND
This action arises from a dispute regarding the application of the fee and fee waiver provisions of the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. Plaintiff Josh Eagle ("Eagle") is a Lecturer at Stanford Law School and Coordinator of the Stanford Fisheries Project ("the Project"), a joint undertaking between Stanford Law School and the Hopkins Marine Station, both academic elements of Stanford University. The Project currently is studying the use of scientific information in connection with decision-making by various regional fishery management councils ("Councils") created under the Magnuson-Stevens Fishery Conservation and Management Act. These Councils, made up of representatives nominated by coastal state governors, state fishery management officials and representatives of federal agencies, were created to assist in the management and conservation of the Nation's marine fisheries. The Project seeks to evaluate the Councils' use of scientific information in their decision-making process and publish the results of such evaluation to Congress, agency policy makers, fisheries managers, the scientific community, and the public at large. Eagle asserts that this particular type of study has never been done before, and that he and the Project hope to contribute significant new information to public policy discussions regarding management and conservation of marine fisheries.By letters dated September 29, 2000, Plaintiff filed seven separate FOIA requests with Defendant National Oceanic and Atmospheric Administration ("NOAA"). The NOAA is an agency within Defendant Department of Commerce. The four requests at issue in this action include requests to the Gulf of Mexico Region, South Atlantic Region, North Pacific Region and Western Pacific Region of the NOAA. Each request sought records pertaining to a particular marine species managed by the NOAA and a Council. The requests all focused on documents that allegedly would shed light on the use of scientific information in annual NOAA/Council quota-setting for, or management of, particular species. Each FOIA request also contained a request for a full waiver of applicable FOIA fees.
By letters dated November 6, 2000, November 7, 2000, November 9, 2000 and November 14, 2000, the NOAA informed Eagle that his requests for documents had been granted but that his requests for fee waivers had been denied. Eagle paid the fees, totaling $3,452.33, under protest and appealed the denial of his requests for fee waivers to the Assistant General Counsel for Administration for the Department of Commerce ("DOC"). The DOC denied Eagle's administrative appeal by letter dated April 26, 2001 (the "April 26 Letter"). Eagle then filed this action, seeking judicial review of the denial of fee waivers. The parties have filed cross-motions for summary judgment.
II. LEGAL STANDARD
A motion for summary judgment should be granted if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The moving party bears the initial burden of informing the Court of the basis for the motion and identifying the portions of the pleadings, depositions, answers to interrogatories, admissions, or affidavits which demonstrate the absence of a triable issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323(1986).
If the moving party meets this initial burden, the burden shifts to the non-moving party to present specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324. A genuine issue for trial exists if the non-moving party presents evidence from which a reasonable jury, viewing the evidence in the light most favorable to that party, could resolve the material issue in his or her favor. Anderson, 477 U.S. 242, 248-49; Barlow v. Ground, 943 F.2d 1132, 1134-36 (9th Cir. 1991).
Here, neither side suggests that there are factual issues that would preclude summary judgment. Rather each side contends that applying the law to the essentially undisputed factual record requires judgment in its favor.
III. DISCUSSION
The Court reviews de novo agency decisions with respect to fee waiver requests. 5 U.S.C. § 552(a)(4)(A)(vii). The Court's review is limited to the record before the agency. Id.
The FOIA fee and fee waiver provisions at issue in this action are set forth in 5 U.S.C. § 552, subsections (a)(4)(A)(I), (a)(4)(A)(ii) and (a)(4)(A)(iii). Subsection (a)(4)(A)(I) requires that each agency promulgate regulations specifying the schedule of fees applicable to the processing of FOIA requests and establishing procedures and guidelines for determining when such fees should be waived or reduced. Subsection (a)(4)(A)(ii) imposes limitations upon the types of fees that may be charged for particular types of document requests, stating as follows:
(ii) Such agency regulations shall provide that —
(I) fees shall be limited to reasonable standard charges for document search, duplication, and review, when records are requested for commercial use;
(II) fees shall be limited to reasonable standard charges for document duplication when records are not sought for commercial use and the request is made by an educational or noncommercial scientific institution, whose purpose is scholarly or scientific research; or a representative of the news media; and
(III) for any request not described in (I) or (II), fees shall be limited to reasonable standard charges for document search and duplication.5 U.S.C. § 552(a)(4)(A)(ii). Subsection (a)(4)(A)(iii) imposes requirements as to when fees must be waived in whole or in part, stating that:
(iii) Documents shall be furnished without any charge or at a charge reduced below the fees established under clause (ii) 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).
The DOC's April 26 Letter, denying Eagle's administrative appeal, makes clear that the DOC considered Eagle to be within the category of "Educational and Noncommercial Scientific Institution Requesters." Pursuant to subsection (a)(4)(A)(ii)(II), above, the fees for this category of requesters are limited to "reasonable standard charges for document duplication." Eagle agrees that he falls within this category. What Eagle challenges is the position the DOC appears to take in the April 26 Letter that an educational requester falling within subsection (a)(4)(A)(ii)(H) never can qualify for full fee waivers under subsection (a)(4)(A)(iii). The DOC's letter states that "Congress specifically addressed educational requesters when it established a uniform fee schedule in which "Educational and Noncommercial Scientific Institution requesters" were placed in a special reduced fee category. Had Congress intended to grant full fee waivers to educational institutions, it would have done so, rather than creating this special fee category." (April 26 Letter at 2-3)
The Court notes that fee waivers under Subsection (a)(4)(A)(iii) may be whole or partial. The Court uses the term "full fee waiver" only to distinguish such whole or partial waivers from the limitations in Subsection (a)(4)(A)(ii)(H) on the types of charges that may be imposed on educational requesters. Here, although there was some implication in early communications from the NOAA to Plaintiff that he in effect had been given a partial fee waiver, the DOC has not suggested that Plaintiff actually was given or should be entitled to only a partial waiver under Subsection (a)(4)(A)(iii).
In addition to its apparent conclusion that fee waivers are not available to educational requesters, the DOC also concluded that Eagle had failed to demonstrate that disclosure of the requested information would benefit the "public at large." (April 26 Letter at 2) Eagle's request for fee waivers stated that his research would provide valuable and otherwise unavailable information to the public, academics, members of Congress, regional fishery management council employees and NOAA fishery managers. The DOC concluded that all but two of these groups already had access to the information Eagle was requesting and therefore that only the public and academics might be served by publication of the information. (Id. at 1) The DOC concluded that Eagle's proposal to publish the information by means of (1) a self-published newsletter to members of Congress, (2) publication on the Project's website and (3) publication in academic journals was insufficient to demonstrate that the public at large would be benefitted by his research. In reaching this conclusion, the DOC explicitly disagreed with a Second Circuit decision, Carney v. U.S. Department of Justice, 19 F.3d 807 (2d Cir. 1994), in which the court held that the public benefit requirement of subsection (a)(4)(A)(iii) is met if the information will be disclosed in scholarly publications expected to reach a reasonably broad audience of persons interested in the subject, and that disclosure to the public at large is not required. Id. at 814-15.
Eagle and the amid contend that there is no support for the DOC's apparent conclusion that fee waivers are unavailable to educational requesters, that the DOC applied an unduly restrictive public benefit requirement, and that the DOC erred in concluding that publication of the requested information would not benefit the public.
1. Availability of Fee Waivers to Educational Requesters in General
An initial point of controversy in this action arise from the suggestion in the DOC's April 26 letter that the fee waiver request was being denied because educational requesters are in a category that is entitled to a limitation on fees but not to full fee waivers. Not unreasonably, Plaintiff read the letter as reflecting a position by the DOC that educational requesters never will qualify for full fee waivers since Congress has already determined that they are entitled only to the limitation on fees.
In its papers, however, the DOC makes clear that it does not contend educational requesters are ineligible for fee waivers per se. Indeed, the DOC makes the converse argument: educational requesters should not be given what is in effect a per se fee waiver just because they their research is academic and not primarily commercial. The DOC relies on the existence of the fee limitation provision only to contrast the automatic limitation on fees an educational requester receives under that provision, with the additional requirements an educational requester must meet for a full waiver.
As Plaintiff correctly points out, the DOC is not entitled in this proceeding to rely on justifications for its decision that were not articulated during the administrative proceedings. See Friends of the Coast Fork v. U.S. Dept. of the Interior, 110 F.3d 53, 55 (9th Cir. 1997) ("On judicial review, we cannot consider new reasons offered by the agency not raised in the denial letter. . . . [T]he agency must stand on whatever reasons for denial it gave in the administrative proceeding.") Here, however, the DOC is not relying on a "new" justification; rather it is simply clarifying and explaining the position it took in the April 26 letter. While it certainly was not unreasonable for Plaintiff to read that letter the way he did, the DOC's current position is not inconsistent with the letter either. Had the letter only relied on Plaintiffs eligibility for a fee limitation as justification for denying a full fee waiver, a different analysis would apply. But as noted, the letter went on to explain why, in the DOC's view, Plaintiff had failed to show that his intended use of the information would benefit "the public at large." Thus, although the letter is somewhat ambiguous, DOC's argument as presently articulated-that the existence of a fee limitation for educational requesters is relevant but not a bar to such requesters obtaining full fee waivers-does not conflict with the reasons it gave for denying Plaintiffs request.
Accordingly, there is no real dispute that Plaintiffs status as an educational requester does not, in and of itself, disqualify him from eligibility for a full fee waiver.
2. Plaintiffs Entitlement to a Fee Waiver Here.
The Court has no quarrel with DOC's argument that academic research is not per se in furtherance of public interests such that it always will justify a full fee waiver. Indeed, the existence of the separate provision limiting the types of fees that can be imposed on educational requesters makes that point virtually indisputable as a matter of statutory construction. Nothing in this order should be read as suggesting that an educational requester can establish an entitlement to a fee waiver merely by pointing to the academic as opposed to commercial nature of the work. However, on the specific facts of this case and in light of the de novo standard of review, the Court concludes that Plaintiff made an adequate showing to justify a fee waiver.
Plaintiff explained to the DOC in significant detail the nature of the research the Project was undertaking and the intent of the Project to review, synthesize, and supplement the information to provide a resource that did not otherwise exist. Plaintiff explained how the Project's work would be disseminated through various forms of publication and how it likely would be used by numerous categories of persons. The April 26 Letter attempted to negate Plaintiffs showing by challenging the likelihood of wide dissemination of the information and by arguing that several of the identified categories of potential users already had access to the information. The former point overstates the burden Plaintiff had to show broad dissemination, and the latter ignored the Project's intent to synthesize and present the otherwise raw information into a more usable form.
It is not clear from the record or from DOC's briefing what an educational requester would have to show to satisfy the DOC that a fee waiver was appropriate. The Court is persuaded, however, that the DOC set the bar too high in this particular case.
The Court sees no reason to question the reasoning or result of Carney, supra, 19 F.3d 807. In its briefing, the DOC has retreated somewhat from its earlier position that Carney was wrongly decided, and instead only urges this Court not to read Carney as requiring a fee waiver whenever a requester simply "informs a federal agency that the information will be used for academic research and possible publication." As noted, the Court agrees with the DOC that academic status (and potential publication) does not suffice automatically. The Court sees nothing in Carney that suggests otherwise, but the issue is irrelevant because Plaintiff made a further, and adequate, showing in this case.
IV. ORDER
Plaintiffs motion for summary judgment is GRANTED. Plaintiff shall recover the sum of $3452.33. Defendant's motion for summary judgment is DENIED.
JUDGMENT
Plaintiffs motion for summary judgment was heard on May 21, 2002. The evidence and arguments having been considered and a decision having been rendered,IT IS ORDERED AND ADJUDGED that Defendant take nothing and Plaintiff shall recover the sum of $3452.33.