Pub. Employees for Envtl. Responsibility v. Dept. of Commerce, No. 12-1293, 2013 WL 4830966 (D.D.C. Sept. 11, 2013) (Jackson, J.)

Wednesday, September 11, 2013
Re: Action arising from defendant's denial of plaintiff's fee-waiver request relating to plaintiff's request for documents related to a former observer for the National Marine Fisheries Service observer program Disposition: Granting defendant's motion for summary judgment
  • Litigation Considerations, Standing:  The court finds that plaintiff, "has standing to challenge the [defendant's] decision to deny the request for a fee waiver because [plaintiff] made the original FOIA request and is therefore a real party-in-interest to the fee-waiver dispute before the court."  The court explains that, "[s]everal uncontested facts support this determination."  "First, the FOIA request was signed by a [plaintiff] executive."  "Second, it was sent from an official [plaintiff] e-mail account."  "And third, [defendant] acknowledged [plaintiff] as the person making the request, or the 'FOIA requester,' in every communication that it had with [plaintiff] before this litigation commenced."  Last, "[t]hough not dispositive, the court finds it instructive that [defendant] sent its initial response to the request to [plaintiff]."  The court also finds that, "[t]he fact that the requested information pertains to a third-party individual does not deprive the requesting party of standing to challenge the agency action."
  • Fees and Fee Waivers:  The court finds that defendant's, "denial of the fee-waiver request was proper because there is no sufficient public interest in disclosure of the requested information."  The court notes that defendant, "does not contend, in either its original denial letter or its subsequent appeal-denial letter, that the information requested was sought primarily for [plaintiff's] commercial interest," and "[a]s a result, and as [defendant] concedes, [defendant] is barred from asserting now that [plaintiff] has a commercial interest in the information."  The court states that, "[s]ince it is undisputed that [plaintiff] has satisfied its burden in relation to the commercial interest prong, the court's determination on the merits turns solely on the remaining prong of the fee-waiver analysis, the public-interest prong."  The court holds that plaintiff, "meets its burden in relation to the first and third factors of the public interest inquiry, but because [plaintiff] fails to satisfy the second and fourth factors, [defendant's] denial of [plaintiff's] fee-waiver request was proper."  "In regards to the first factor," the court finds that plaintiff, "has adequately demonstrated that the subject of the request sufficiently relates to government operations and activities because it concerns routine administrative communications about a former contractor for a federal agency."  Additionally, "[i]n relation to the third factor," the court finds that plaintiff, "again barely meets its burden," because it, "specifically articulates how and to whom it will disseminate the requested information."  The court explains that plaintiff, "however, fails to demonstrate that the requested information has informative value; i.e. that it is 'likely to contribute' to public understanding of government operations or activities."  The court explains that, "the information sought by [plaintiff] concerns only one individual," and that plaintiff's, "request is not tailored to produce information about government misconduct, so the documents that will be produced are not 'likely' relevant to important ethical or legal considerations of which the public should be aware."  "Moreover, [plaintiff's] request does not concern any 'high level official' or head of an agency or department."  The court also finds that plaintiff, "also fails to satisfy its burden with respect to the fourth factor of [defendant's] public interest test because it does not demonstrate that the potential contribution of the requested information to the public understanding of the functions of government is significant."  "Even if the court were to find that the disclosure of personnel information . . . is relevant to increasing the public understanding of some element of agency operations—which it does not—the court cannot find that the impact of the information would be at all significant because, at most, the information would shed light only on the agency's interaction with one contract worker."
District Court
Fees and Fee Waiver
Litigation Considerations
Updated August 6, 2014