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National Security Counselors v. United States Department of Justice

United States Court of Appeals, District of Columbia Circuit

February 14, 2017

National Security Counselors and Jeffrey Stein, Appellants
v.
United States Department of Justice, Appellee

          Argued September 6, 2016

          Appeal from the United States District Court for the District of Columbia (No. 1:13-cv-00556)

          Kelly B. McClanahan argued the cause and filed the briefs for appellants.

          Brian P. Hudak, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief was R. Craig Lawrence, Assistant U.S. Attorney.

          Before: Brown, Srinivasan, and Wilkins, Circuit Judges.

          OPINION

          Srinivasan, Circuit Judge

         The Freedom of Information Act generally provides for persons to request the disclosure of records retained by administrative agencies. FOIA also addresses the charging of fees by agencies to process the release of records.

         This case involves challenges raised by two separate FOIA requesters to the fees assessed against them by the Department of Justice for processing their requests for records. One requester argues that the fees assessed against him exceed the amounts permitted by the statute. The other contends that its request falls within a statutory waiver of fees for certain disclosures furthering the public's understanding of government operations. The district court denied both claims and awarded summary judgment to the Department. We affirm the district court's rejection of the second requester's argument for a statutory waiver of fees, but we vacate and remand for further proceedings with regard to the first requester's challenge to the amount of fees assessed against him.

         I.

         The first fee dispute involved in this case concerns a September 13, 2011, FOIA request submitted to the Federal Bureau of Investigation by appellant Jeffrey Stein. Stein is a columnist and blogger who writes about national security issues. He sought disclosure of "all pages on the internal Federal Bureau of Investigation ('FBI') Records Management Division ('RMD') website, . . . as well as all documents, images, audio and video files, and any other files posted on the RMD website." FOIA Request from Jeff Stein to David M. Hardy, Chief, FBI Record/Info. Dissemination Section (Sept. 13, 2011). The FBI, a component of the Department of Justice, responded to Stein's request by releasing, free of charge, a CD containing an initial 567 pages of responsive material. The agency further conveyed that it had located an additional 21, 753 responsive pages, which the agency would produce for Stein on multiple CDs if he paid a fee of $665. The FBI calculated that fee pursuant to its interim release policy, under which it responds to large document requests by burning a series of CDs, each of which contains a maximum of 500 pages of responsive documents. The agency charges requesters $15 per CD.

         Stein did not pursue any administrative appeal of that initial fee determination within the agency. Instead, he brought an action in district court, claiming that the FBI's fee policies, at least as they apply to large requests like his own, are inconsistent with FOIA.

         The second fee dispute involved in this case arises out of two September 19, 2011, FOIA requests submitted to the Department of Justice by appellant National Security Counselors (NSC), a non-profit law firm. One of NSC's requests asked for documents concerning all FOIA cases handled by the Federal Programs Branch of the Department of Justice from 2000 to the present. The other request sought "all sworn declarations made by agency representatives as part of certain FOIA or Privacy Act litigation between 2002-2006, inclusive." FOIA Request from NSC to James M. Kovakas, FOIA/Privacy Act Officer, Dep't of Justice Civil Div. (Sept. 19, 2011). In conjunction with both requests, NSC asked for a waiver of charges under a FOIA provision mandating waiver or reduction of fees for certain disclosures deemed to be in the public interest. 5 U.S.C. § 552(a)(4)(A)(iii). The agency denied NSC's requests for a public-interest fee waiver.

          Stein and NSC brought an action under FOIA against the Department of Justice, contesting the fees assessed against them by the agency. The district court granted summary judgment in favor ...


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