Nat'l Sec. Counselors v. DOJ, 848 F.3d 467 (D.C. Cir. Feb. 14, 2017) (Srinivasan, J.)

Nat'l Sec. Counselors v. DOJ, 848 F.3d 467 (D.C. Cir. Feb. 14, 2017) (Srinivasan, J.)

Re: Challenges raised by two separate FOIA requesters to fees assessed against them by DOJ for processing their requests; one requester argues that fees assessed against him exceed amounts permitted by statute; second requester contends that its request falls within a statutory waiver of fees

Disposition: Affirming the district court's rejection of second requester's argument for a statutory waiver of fees; vacating and remanding for further proceedings with regard to first requester's challenge to amount of fees assessed

• Litigation Considerations, Exhaustion of Administrative Remedies: The Court of Appeals for the District of Columbia Circuit rejects "the agency['s] conten[tion] that [the first requester] fail[ed] to exhaust administrative remedies." The court relates that "[it has] previously elected to consider the claim of a party who failed to exhaust agency remedies when that party's claim and the claim of someone who did personally exhaust 'are so similar that it can fairly be said that no conciliatory purpose would be served' by requiring exhaustion from both parties." The court finds that "when two co-plaintiffs jointly asserting precisely the same claim in the same action did exhaust, [it] elect[s] to consider [the first requester's] challenge notwithstanding his own failure to exhaust." This is true even here, the court finds, where "neither of the co-plaintiffs presently stands alongside [the first requester] in challenging the agency's fees."
   
• Fees and Fee Waivers, Fees: Regarding the first requester's "challenge to the fees assessed by the FBI under its interim release policy for production of multiple CDs containing responsive documents," the Court of Appeals for the District of Columbia Circuit "vacate[s] the grant of summary judgment against [this requester] and remand[s] for further proceedings." The court first finds that "[b]ecause the agency has come forward with a reasonable, non-obstructionist explanation for the interim release policy's 500–page–per–CD limitation, that limitation does not result in a violation of FOIA's mandate that agencies recover only 'reasonable standard charges.'" "That is true even though the policy may, to some degree, increase the cost of disclosure for large requests." "FOIA's reasonable-charge mandate, as [the requester] concedes, does not require an agency to adopt the lowest-cost method of responding to requests." "Nor, relatedly, does that statutory mandate require the FBI to waive its interim release policy on request in individual cases." "FOIA does not stand in the way of an agency's formulation and application of a reasonable, generally applicable release protocol." "Because the FBI's justifications for its interim release policy relate to the efficient processing of requests, it can permissibly adhere to the standard 500–page limit in the face of a case-specific waiver request even if, as [the requester] observes, it occasionally exercises its discretion to release CDs containing more than 500 pages."
  
  However, the court also "conclude[s] that there remained a genuine issue, foreclosing the entry of summary judgment, concerning whether the fees assessed by the agency exceeded its direct costs." The court finds that "after the agency initially submitted its explanation of labor costs in [its] Declaration, which were grounded in its assertion that ["a computer program that scans for 'exempt words, names, confidential sources, or classified techniques' in responsive documents"] generally takes 50 minutes to run, [the requester] raised questions about whether that period involves any meaningful employee engagement." "The FBI, despite its awareness of [the requester's] argument, gave no supplemental information addressing whether the operation of the . . . program in fact entails any ongoing employee interaction." The court "require[s] only that the agency provide a sufficient factual basis upon which the district court can make the determination that the fees assessed under the interim release policy do not exceed direct costs."
   

• Fees and Fee Waivers, Fee Waivers: "Because [the second requester] failed to provide adequate evidence suggesting that it would effectively disseminate its requested information in furtherance of the public's understanding of government operations, [the Court of Appeals for the District of Columbia Circuit] find[s] that [the requester] failed to carry its burden to demonstrate its entitlement to a waiver of fees." "[The court] agree[s] with the Department that, based on the state of [the requester's] website at the time of its FOIA requests, it appeared to be 'no more tha[n] . . . a clearing house for the records [it] receive[d]' through FOIA." "In addition, the Department correctly noted that [the requester] did 'not appear [to be] actively engaged in gathering information to produce' original publications, as '[t]he "[the requester's] Publications" section of [its] website contains only three publications, two of which were written . . . prior to [the requester's] existence.'" "[The requester], moreover, produced no information about the size of its audience or the amount of traffic received by its website." The court "therefore affirm[s] the denial of [the requester's] request for a public-interest fee waiver."