National Security Counselors v. Department of Justice
80 F. Supp. 3d 40
D.D.C.2015Background
- NSC, Stein, and Truthout, as FOIA plaintiffs, sued the DOJ seeking records from the FBI, Civil Division, and OIP (Case No. 13-cv-0556, TSC).
- The FBI’s interim release policy on CDs (IRP) charged $15 per CD and delivered records in 500-page increments; fee waivers were denied for some requests.
- The MAOP was released to NSC at no charge, rendering Counts I–II moot; Counts III and IV concern IRP fee determinations and fee-waiver denials, respectively.
- NSC sought a fee waiver for the Second and Third Requests in Count IV, and Stein and Truthout challenged the IRP fee determinations in Count III.
- DOJ moved for summary judgment, and Plaintiffs cross-moved for partial summary judgment or discovery; the court granted DOJ’s motion in full, denying the cross-motions.
- The court held that the IRP fees complied with FOIA regulations, and NSC’s fee-waiver requests failed on the 28 C.F.R. § 16.11(k)(2) factors; discovery for the administrative record in Count IV was denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FBI’s IRP fee determinations violated FOIA. | NSC/Truthout claim IRP fees exceed permitted costs and hinder access. | IRP complies with 28 C.F.R. § 16.11(c)(2) and provides efficiencies. | Yes, DOJ is entitled to summary judgment on Count III. |
| Whether NSC’s Second and Third Requests qualify for public-interest fee waivers. | Requests will significantly contribute to public understanding of government operations. | Requests lack sufficient informational value and dissemination plan. | No, DOJ is entitled to summary judgment on Count IV. |
| Whether Payne-like future-harm claims may proceed in FOIA challenges to agency policies. | IRP would impair future access to information for plaintiffs. | No ongoing impairment shown; policy speeds releases and reduces cost. | Claim fails; court grants summary judgment for DOJ on Payne-based arguments. |
| Whether NSC is entitled to discovery to challenge the administrative record in Count IV. | Discovery needed to reveal internal deliberations and decision-making. | FOIA discovery is generally unavailable; record is sufficient for de novo review. | Discovery denied. |
Key Cases Cited
- Hidalgo v. FBI, 343 F.3d 1256 (D.C. Cir. 2003) (exhaustion principle and FOIA presumptions matter for review)
- Wilbur v. CIA, 355 F.3d 675 (D.C. Cir. 2004) (administrative exhaustion and FOIA standard of review)
- Payne Enters., Inc. v. United States, 837 F.2d 486 (D.C. Cir. 1988) (policy-or-practice claims under FOIA require more than isolated mistakes)
- Rossotti v. IRS, 326 F.3d 1309 (D.C. Cir. 2003) (fee-waiver analysis under FOIA involves factors of public interest and disclosure value)