The FOIA blog

For Fee Purposes, 20 Days is 20 Days

Judge James Boasberg of the United States District Court for the District of Columbia has ruled that when Congress said in its 2007 amendments to the FOIA that agencies could not charge fees except for exceptional circumstances when they failed to process the request within the statutory time period they actually meant just that.  Judge Boasberg ruled against the Department of the Interior's National Park Service where they tried to charge fees in a case where they ruled against the requester's fee waiver request but did so after the 20 days had expired. 

For those of us who have tried to bring this provision of the FOIA to the attention of FOIA Officers and Appeal Offices but have been routinely ignored, this is a very positive result.  While no one wants to see FOIA Offices lose funding, their failure to process requests in a timely manner now has results that affect their bottom line.

Update -- the comment below makes a good point (one that I had obviously forgotten) -- fees collected are not related to operating costs of FOIA Operations; and I'm not sure anyone actually takes this into consideration when budgeting for FOIA Operations. 

Large Charge Brings FOIA Lawsuit

The Treasury Department's bill of over $500,000 to respond to a FOIA request concerning the once-frozen assets of a Libyan company has brough unforeseen consequences to the Department of Treasury, a lawsuit.  The Treasury Department will now have to defend its excessive FOIA fee in Court.  A similar request to the FBI only resulted in fees of $242, but of course, the FBI has yet to process and release the responsive records. 

It could get worse, the Michigan State Police have told a requester that fees on her request for records pertaining to Homeland Security Grants are estimated to be almost $6.8 million dollars.  Yes, I said million.

Monday News Roundup

Here are some items of interest--

The Reagan and Bush (George H.W. Bush) Presidential Libraries will be releasing approximately 250,000 pages of records today. 

A contempt hearing has been set against the Interior Department and its component agency Fish and Wildlife Service in a FOIA lawsuit against it by a group seeking drilling documents in a National Wildlife Refuge.  The hearing is scheduled for May 8, 2009.

Judicial Watch claims a bill for fees rather than a grant of a fee waiver is retaliation because it published a report last month critical of House Speaker Nancy Pelosi.  While I think Judicial Watch should have received a fee waiver, I believe it is more of a bureacratic screw up than a retaliatory act.

Finally, four names of those in charge of TARP have been released.

Court Grants Media Status to Internet-Only Newsletter

In a noteworthy opinion, Judge Reggie B. Walton of the United States District Court for the District of Columbia has granted a fee waiver to a group called Federal Cure ("FedCure").

FedCure sought a fee waiver in its requests to the Bureau of Prisons ("BOP") about ion spectrometer scanning methods used in the prisons.  The BOP denied the fee waiver request, the litigation was filed and the Court ultimately agreed with FedCure.  In finding that the group met the requirements for a fee-waiver, the Court found that FedCure's internet activities (a sporadically published newsletter, and answers to requests on a Yahoo discussion group) met the requirement as a representative of the news media.

Court Orders CIA to Treat National Security Archive as a Member of News Media

United States Federal District Court Judge Gladys Kessler has ordered the CIA to treat the National Security Archive as a member of the news media for purposes of granting fee waivers.  The short opinion tells the story of the CIA's attempts to circumvent granting news media status to the organization even though it previously told the court it would confer that status.  Ultimately, the Court told the CIA that journalists not the agency determine what is newsworthy.

More can be found here.

HHS Loses Fee Waiver Battle

Judge Reggie B. Walton of the United States District Court for the District of Columbia has granted the Center for Medicare Advocacy, Inc. a fee waiver in its FOIA request to Health and Human Services for information pertaining to information concerning video conferencing. . . that have been or are being reviewed and/or used in designing and/or establishing the Medicare administrative law judge hearings by [video-conferencing] that are described at 42 C.F.R. §§ 405.1036, et seq.

HHS had originally denied plaintiff's fee waiver request, but the Court disagreed and found that plaintiff had met the agency regulations for a fee waiver.  The government also denied thousands of pages pursuant to FOIA exemption 5 (the attorney-client privilege and the deliberative process privilege) but the Court found that the government met its burden of proof in establishing that this material was exempt from release.