National Security Counselors v. United States Department of Justice
848 F.3d 467
| D.C. Cir. | 2017Background
- Two FOIA fee disputes against the Department of Justice: (1) Jeffrey Stein challenged the FBI’s interim release policy and a $665 fee for producing responsive records on multiple CDs; (2) National Security Counselors (NSC) sought a public-interest fee waiver for requests for DOJ Federal Programs Branch FOIA case records and sworn declarations.
- Stein requested all pages from the FBI Records Management Division website; FBI released 567 pages free and offered the remainder (~21,753 pages) on additional CDs at $15 per CD (500-page increments).
- Stein did not administratively appeal the fee; co-plaintiffs (NSC and Truthout) did exhaust administrative remedies for similar claims and sued with Stein.
- FBI justified $15/CD charge by asserting direct labor costs (Integrity protocol) of roughly $39.50 per CD based on ~50 minutes operator time; Hardy declaration explained the multi-track 500-page increment policy to prevent large requests from monopolizing resources.
- NSC sought public-interest fee waiver under 5 U.S.C. § 552(a)(4)(A)(iii); DOJ denied waiver, finding NSC had not shown it would significantly contribute to public understanding or demonstrate adequate dissemination capacity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Stein’s challenge is barred by failure to exhaust administrative remedies | Stein argued court may hear claim despite no administrative appeal | DOJ argued non-exhaustion precludes review | Court exercised discretion to hear claim because co-plaintiffs exhausted and claims were closely similar; exhaustion requirement not jurisdictional |
| Whether FBI’s 500-page-per-CD interim release policy results in unreasonable standard charges | Stein argued 500-page limit artificially inflates fees and may deny access | FBI argued limit is reasonable to enable multi-track processing and avoid resource monopolization | Policy’s 500-page increment is permissible as a generally applicable, efficiency-driven rule; not per se unreasonable |
| Whether the $15 per-CD fee exceeds the agency’s direct costs | Stein argued FBI’s cost estimate is unsupported; Integrity protocol may not require 50 minutes of active operator labor so direct costs may be < $15/CD | FBI relied on Hardy declaration estimating operator labor cost ~ $39.50 per CD based on 50 minutes | Genuine factual dispute exists about the extent of active labor during Integrity processing; summary judgment vacated as to Stein and remanded for factual development |
| Whether NSC is entitled to a public‑interest fee waiver under FOIA | NSC argued disclosure would significantly contribute to public understanding and is not primarily commercial | DOJ argued NSC failed to show ability to disseminate to a reasonably broad audience or that disclosure would significantly increase public understanding | Denial of fee waiver affirmed: NSC failed to provide specific, non‑conclusory evidence of dissemination capacity or identifiable audience |
Key Cases Cited
- Judicial Watch, Inc. v. U.S. Dep’t of Justice, 813 F.3d 380 (D.C. Cir.) (standard of review for FOIA summary judgment)
- Hidalgo v. FBI, 344 F.3d 1256 (D.C. Cir. 2003) (exhaustion under FOIA is not jurisdictional)
- Foster v. Gueory, 655 F.2d 1319 (D.C. Cir. 1981) (considering companion plaintiff’s exhaustion to allow review)
- Cellnet Commc’n, Inc. v. FCC, 965 F.2d 1106 (D.C. Cir. 1992) (similar exhaustion principles)
- Weinberger v. Salfi, 422 U.S. 749 (1975) (purposes of administrative exhaustion)
- Nat’l Treasury Emps. Union v. Griffin, 811 F.2d 644 (D.C. Cir. 1987) (agency fees must not effectively deny access)
- Judicial Watch, Inc. v. Rossotti, 326 F.3d 1309 (D.C. Cir. 2003) (fee-waiver applicants must make reasonably specific, non‑conclusory showings)
- Cause of Action v. FTC, 799 F.3d 1108 (D.C. Cir. 2015) (dissemination to a reasonably broad audience required for fee waiver)
- Carney v. U.S. Dep’t of Justice, 19 F.3d 807 (2d Cir. 1994) (dissemination requirement context)
- Larson v. CIA, 843 F.2d 1481 (D.C. Cir. 1988) (upholding denial of fee waiver where requester failed to identify dissemination means)