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DoJ Reply 9th Circuit

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									    Case: 11-16214   11/07/2011    ID: 7956289   DktEntry: 18     Page: 1 of 54


                               CA No. 11-16214

                 District Court No. 2:09-CV-2199-JCM-GWF

                              IN THE
                 UNITED STATES COURT OF APPEALS
                     FOR THE NINTH CIRCUIT
                            __________

                           AIDAN MONAGHAN,
                                           Plaintiff-Appellant,

                                      v.
  FEDERAL BUREAU OF INVESTIGATION; DEPARTMENT OF JUSTICE,
                                          Defendants-Appellees.
                                  __________

           ON APPEAL FROM THE UNITED STATES DISTRICT
               COURT FOR THE DISTRICT OF NEVADA
             _________________________________________
                   APPELLEE’S ANSWERING BRIEF
              _________________________________________
                                    DANIEL G. BOGDEN
                                    United States Attorney
                                    BLAINE WELSH
                                    Civil Chief

                                    PATRICK ROSE
                                    Assistant United States Attorney
                                    ADAM M. FLAKE
                                    Assistant United States Attorney
                                    District of Nevada
                                    United States Federal Courthouse
                                    333 Las Vegas Blvd., South, Fifth Floor
                                    Las Vegas, NV 89101
                                    Attorneys for Appellee
                                    United States of America

Date Filed: November 7, 2011
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                                      TABLE OF CONTENTS

                                                                                                           Page

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

I.      STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II.     ISSUES PRESENTED FOR REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

III.    STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

IV.     SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
V.      ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

        A.      The standard of review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

        B.      The district court correctly found that Monaghan was not
                entitled to a fee waiver under the fee waiver subsection, 5
                U.S.C. § 552(a)(4)(A)(iii). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
        C.      The district court correctly found that the Agency was not
                precluded from charging Monaghan fees under the fee
                preclusion subsection, 5 U.S.C. § 552(a)(6)(viii). . . . . . . . . . . . . . . 14
        D.      The district court correctly found that it lacked jurisdiction
                to award relief where Monaghan had failed to pay fees and
                failed to obtain a fee waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

VI.     CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
VII. CERTIFICATE OF RELATED CASES . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

VIII. BRIEF FORMAT CERTIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
IX.     CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
ADDENDUM




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                                   TABLE OF AUTHORITIES

                                          FEDERAL CASES

Armentero v. I.N.S., 412 F.3d 1088 (9th Cir. 2005) . . . . . . . . . . . . . . . . . . . . 11, 20

Bankston v. White, 345 F.3d 768 (9th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . 10

Camp v. Pitts, 411 U.S. 138 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Capital Tracing, Incorporated v. United States, 63 F.3d 859 (9th Cir. 1995) . . . . 9

Dettmann v. United States Department of Justice,
  802 F.2d 1472 (D.C. Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Forest Guardians v. Department of the Interior,
  416 F.3d 1173 (10th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Friends of the Coast Fork v. United States Department of the Interior,
  110 F.3d 53 (9th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Hidalgo v. FBI, 344 F.3d 1256 (D.C. Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Hymen v. Merit Systems Protection Board,
  799 F.2d 1421 (9th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10

Jarvik v. Central Intelligence Agency, 495 F. Supp. 2d 67 (D.D.C. 2007) . . . . . . 12

                                                                           13, 21
Jeanes v. United States Department of Justice, 357 F. Supp. 2d 119 (D.D.C. 2004)

Kissinger v. Reporters Committee for Freedom of the Press,
  445 U.S. 136 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 11, 20, 22

Kurdyukov v. D.E.A., 578 F. Supp. 2d 61 (D.D.C. 2008) . . . . . . . . . . . . . . . . . . . 21

                                                                          14, 21
Maydak v. United States Department of Justice, 254 F. Supp. 2d 23 (D.D.C. 2003)

McClellan Ecological Seepage Situation v. Carlucci,
 835 F.2d 1282 (9th Cir. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

                                                                           13
Motor Vehicle Mfrs Ass’n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29 (1983)

                                                                         13,
Pollack v. United States Department of Justice, 49 F.3d 115 (4th Cir. 1995) 21, 22


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                                                                              14
Skrzypek v. United States Department of Treas., 550 F. Supp. 2d 71 (D.D.C. 2008)

In re Steele, 799 F.2d 461 (9th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

                                                                           14,
Trueblood v. United States Department of Treas., 943 F. Supp. 64 (D.D.C. 1996)21

United States Department of Justice v. Tax Analysts, 492 U.S. 136 (1989) 9, 20, 22

United States v. Wenner, 351 F.3d 969 (9th Cir. 2003) . . . . . . . . . . . . . . . . . . . . 20

Universal Health Services, Inc. v. Thompson,
  363 F.3d 1013 (9th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
                                         FEDERAL STATUTES

5 U.S.C. § 552(A)(6)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
5 U.S.C. § 552(a)(4)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Passim

5 U.S.C. § 552(a)(4)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
5 U.S.C. § 552(a)(6)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 19

5 U.S.C. § 552(a)(6)(C)(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
5 U.S.C. § 552(a)(6)(viii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 14
28 C.F.R. § 16.11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Passim

28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1




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                                           I.

                       STATEMENT OF JURISDICTION

      On November 17, 2009, Plaintiff Aidan Monaghan filed a complaint in the

United States District Court for the District of Nevada seeking to compel the release

of records from the Federal Bureau of Investigation under the Freedom of Information

Act (FOIA), 5 U.S.C. § 552. SER 1-4.1 On November 20, 2009, he filed an amended
complaint. ER 87-100. District courts generally have jurisdiction over FOIA cases
under 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C. § 1331. As discussed in the Argument

section, below, the district court correctly held that it lacked jurisdiction to grant

Monaghan relief because Monaghan had failed to pay the requisite FOIA fees ($864)
that had been incurred up to the point the Agency halted its search for responsive
documents from its largest, most complex file: the investigative file for the terrorist

attacks of September 11, 2001. ER 4-6.
      The district court dismissed Monaghan’s case on March 17, 2011. ER 3-6.
Monaghan filed a timely notice of appeal on May 12, 2011. ER 1-2. This Court has

jurisdiction under 28 U.S.C. § 1291.
                                          II.
                      ISSUES PRESENTED FOR REVIEW

1.    Whether the district court correctly found that Monaghan was not entitled to a
fee waiver under 5 U.S.C. § 552(a)(4)(A)(iii).

1
      “ER” denotes the Excerpts of Record, filed by Monaghan, followed by the
relevant page number(s); “SER” denotes the Supplemental Excerpts of Record, filed
by the Agency, followed by the relevant page number(s); “CR” denotes the district
court’s docket, followed by the relevant docket number and page number(s); “AOB”
denotes Appellant’s opening brief, followed by the relevant page number(s).
                                           1
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2.    Whether the district court correctly found that the Agency was not precluded

from charging Monaghan fees under 5 U.S.C. § 552(a)(6)(viii).
3.    Whether the district court correctly found that it lacked jurisdiction to award

relief where Monaghan had failed to pay fees and failed to obtain a fee waiver.2
                                         III.

                  STATEMENT OF THE CASE AND FACTS

      Prior to making the FOIA request at issue in this case on August 31, 2009,

Monaghan had already made other FOIA requests of the Agency seeking similar

information. ER 63. Indeed, as of August 4, 2009, Monaghan had negotiated with
the Agency to narrow the scope of his prior request. ER 63. On August 14, 2009,
the Agency sent Monaghan a letter notifying him in accordance with 28 C.F.R. §

16.11(c)(2) that the fee for his prior FOIA request had reached $260 and that the
Agency expected payment in full within 60 days or the request would be closed.
ER 63.

      Instead of paying that fee, or directly responding to that letter in any way,
Monaghan filed the FOIA request at issue here, seeking the same information as

his previous request and also seeking a waiver of fees associated with his new
request. ER 57-58, 63. Monaghan asserted that “[d]isclosure of the requested

information to me is not in my commercial interest” and that he maintains “an open




2
       In accordance with Ninth Circuit Rule 28-2.7, a statement of pertinent
constitutional provisions, treaties, statutes, ordinances, regulations and rules, is
attached in an addendum to this brief.
                                          2
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public access FOIA internet archive . . . .” ER 57.3 Monaghan also noted that “the

FBI’s investigation of the terrorist attacks of September 11, 2001 is the largest ever
undertaken by the bureau.” ER 58. On August 31, 2009, the Agency received the

new request. ER 57-58, 63. Unfortunately, the Litigation Support Unit of the FBI,

which was coordinating the search for information responsive to Monaghan’s prior
request, did not promptly receive a copy of this new request. ER 64.

       Having received no response to the new request, on September 29, 2009,

Monaghan filed an appeal with the Department of Justice’s Office of Information
and Policy (“OIP”). ER 60-61. In that appeal, Monaghan noted that the Agency
had not timely responded to his new FOIA request, and again sought a fee waiver,

stating that “[d]isclosure of the requested information to me is not in my
commercial interest” and that he maintains “an open public access internet FOIA

archive . . . .” ER 60. Monaghan did not claim that the Agency was precluded

from charging him fees because of its failure timely to respond to his latest FOIA

request.4

3
       5 U.S.C. § 552(a)(4)(A)(iii) states, “Documents shall be furnished without any
charge . . . if disclosure of the information is in the public interest because it is likely
to contribute significantly to public understanding of the operations or activities of the
government and is not primarily in the commercial interest of the requester.” For ease
of reference, this brief sometimes refers to this subsection of FOIA as “the fee waiver
subsection.” See also 28 C.F.R. § 16.11(k) (Agency’s factors to consider regarding
a fee waiver).
4
       5 U.S.C. § 552(a)(4)(A)(viii) states “An agency shall not assess search fees (or
in the case of a requester described under clause (ii)(II), duplication fees) under this
subparagraph if the agency fails to comply with any time limit under paragraph (6),
if no unusual or exceptional circumstances (as those terms are defined for purposes
of paragraphs (6)(B) and (C), respectively) apply to the processing of the request.”
For ease of reference, this brief sometimes refers to this subsection of FOIA as “the
fee preclusion subsection.”
                                             3
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      The Agency did not respond to this administrative appeal. Having received

no response from the Agency on November 17, 2009, Monaghan filed this lawsuit.
SER 1-4. On November 20, 2009, he filed an amended complaint, again asserting

he was entitled to a fee waiver because he did not have a commercial interest in

obtaining the requested information. ER 87, 89-90. Once again, Monaghan did

not claim in this lawsuit that the Agency was precluded from charging him a fee

because of its failure timely to respond to his latest FOIA request. See id.

      On January 13, 2010, the Agency sent Monaghan a letter5 responding to his
August 31, 2009, FOIA request. ER 63-82. In addition to noting Monaghan’s

prior FOIA-related dealings with the Agency and the fact that the Litigation
Support Unit had not received a copy of Monaghan’s latest FOIA request until

after Monaghan had already filed his complaint, the Agency’s response stated that
the file from which Monaghan requested information was “one of the largest and
most complex investigatory files ever created by the Federal Bureau of

Investigation” and that his request “will require an extensive amount of research to
locate and retrieve” responsive information. ER 63-64.
      The Agency’s response also addressed Monaghan’s request for a waiver of

all costs pursuant to the fee waiver subsection. After extensive analysis of the fee-

waiver factors, 28 C.F.R. § 16.11(k), and the information supplied by Monaghan,
the Agency concluded that release of the requested information to Monaghan

would “not contribute significantly to the public understanding of the FBI’s law
enforcement mission.” ER 64-65. It asked Monaghan to “please send . . . $864

5
      This brief refers to this letter as “the Agency’s response.”
                                          4
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within 30 days of the date of this letter . . . [at which time the Agency] will

continue our search and begin retrieval of responsive documents,” and informed
Monaghan he had the right to appeal the denial of the fee waiver to OIP within 60

days. ER 65.

      On January 19, 2010, the United States Attorneys Office for the District of
Nevada filed an answer to Monaghan’s amended complaint. ER 82-86. On April

20, 2010, the parties filed, via a stipulation, the administrative record, which

included the Agency’s response. ER 54-55. The parties agreed to have the case
proceed in two phases. CR 11, 12, 16. First, the parties would brief whether

Monaghan was entitled to a fee waiver. Id. Second, depending on the court’s

ruling about a fee waiver, the parties would address the issue of a substantive

response to Monaghan’s FOIA request. See id.

      In his motion for summary judgment as to fee waiver, Monaghan claimed

that he was entitled to a fee waiver “as one who gathers and disseminates
information to a wider audience.” SER 17. He quoted extensively from the

Agency’s response, arguing that the Agency’s determination was incorrect. Id. He

did not claim that the Agency was precluded from charging him fees under FOIA’s
fee preclusion subsection, 5 U.S.C. § 552(a)(4)(A)(viii), on the ground that the

Agency’s response was untimely. Id.




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      The Agency responded to Monaghan’s motion for summary judgment as to

fee waiver by arguing that it had correctly analyzed Monaghan’s fee waiver
request. SER 25. These pleadings do not mention the fee preclusion subsection.

      On June 17, 2010, the district court denied Monaghan’s motion for summary

judgment as to the fee waiver. ER 50-53. The district court held that Monaghan
“has failed to show that the requested disclosure is ‘likely to contribute’

significantly an understanding of the operations and activities of the government . .

. .” ER 52. In particular, it held that by merely maintaining a blog—actually a
sub-blog within a larger blog about the 9/11 attacks—Monaghan had not
demonstrated that he had an ability to disseminate information. ER 52-53.

Additionally, it held that by merely invoking a general sense of public interest
about 9/11, Monaghan had not demonstrated that the specific types of records he
sought would contribute significantly to the public’s understanding about

government operations or activities. Id. The district court’s order makes no

mention of the fee preclusion subsection, which was not raised by Monaghan in his
Complaint, Amended Complaint, or Motion for Summary Judgment as to Fee

Waiver. See id.

      Even after losing his claim for a fee waiver, Monaghan still failed to pay the
outstanding FOIA fees. On October 14, 2010, the Agency filed a motion to

dismiss or in the alternative for summary judgment, arguing that because of his

failure to pay his fees or obtain a fee waiver, Monaghan had no jurisdictionally

valid claim to judicially compel the Agency to search for and produce responsive
records. SER 34-39.

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      On December 6, 2010, Monaghan filed a response to the Agency’s motion,

ER 7-33, as well as a motion for summary judgment and for reconsideration of

FOIA fee waiver ruling. ER 34-53. In these pleadings, Monaghan claimed for the

first time that the Agency was precluded from charging him fees under the fee

preclusion subsection. ER 42-44. He also claimed for the first time that the
Agency’s response to his FOIA request should not have been included in the

administrative record because it was untimely. ER 28, 45-47.

      On March 16, 2011, the district court granted the Agency’s motion, holding

that Monaghan could not rely on the fee preclusion subsection, and that he had not
exhausted his administrative remedies because he had not paid his fee. ER 4-6.
This timely appeal followed. ER 1.
                                          IV.
                          SUMMARY OF ARGUMENT

      The district court ruled against Monaghan in three ways. First, in deciding
Monaghan’s motion for summary judgment as to fee waiver, it held that he had not
shown he was entitled to a fee waiver. ER 51-53. Second, in dismissing the case,

it held that the Agency was not precluded from charging fees under the fee
preclusion subsection because Monaghan did not timely assert that the fee
preclusion subsection applied, and, even if it applied, it would still permit fees to

be charged in the “unusual circumstances” of searching the largest, most complex

file in FBI history. ER 6. Third, in dismissing the case, it also held that it lacked

jurisdiction to award relief because Monaghan had failed to exhaust administrative



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remedies in the sense that he had failed to pay requisite fees. ER 6.6 On appeal,

Monaghan contests each of these rulings (though not in the order they were made
by the district court).

       With respect to the fee waiver subsection, instead of addressing the

substantive merits of the position taken in the Agency’s response, as he did in the
district court, Monaghan contends that the district court erred in relying on the

Agency’s response at all. AOB 16-23. But Monaghan stipulated that the Agency’s

response was part of the administrative record and relied heavily upon that
response in his initial motion for summary judgment, quoting from it extensively.
ER 54-55; SER 17-22. Even if he had not done so, he still could not show error,

because the administrative record properly includes the Agency’s response.7
       The district court correctly held that Monaghan’s argument based on the fee
preclusion subsection was untimely. In his appeal to OIP on September 29, 2009,

he noted the Agency had not timely responded, but he waited approximately
fourteen months (and filed numerous pleadings in this lawsuit) before finally
asserting that he was entitled to benefit from the fee preclusion subsection.




6
        The district court’s dismissal was not based on a failure to exhaust in the sense
of filing suit prematurely.
7
       Even without the Agency’s response, Monaghan had not satisfied the fee waiver
factors; in particular, he failed to demonstrate an ability to disseminate information,
and failed to provide any specifics as to how the requested records would contribute
significantly to the public’s understanding about government operations or activities.
                                           8
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       With respect to the district court’s alternative finding that the “unusual

circumstances” exception to the fee waiver subsection applies, Monaghan does not
actually claim there are no unusual circumstances in this case; he claims instead

that the Agency cannot rely on that exception because it did not comply with

FOIA’s time requirements. AOB 12-13. But FOIA does not require a response to
be timely for unusual circumstances to exist. Indeed, if a timely response were

required for unusual circumstances to exist, the exception would literally never

apply, since the fee preclusion subsection is only triggered when a response is
untimely in the first place.
       The district court held that Monaghan’s failure to comply with agency

regulations, i.e., failure to pay a properly assessed fee, is itself a failure to exhaust.
Monaghan also claims that because the Agency’s response was untimely, he has
administratively exhausted his claims. But even if the Agency’s untimely response

resulted in constructive exhaustion, it does not excuse him from paying fees.


                                            V.

                                     ARGUMENT

A.     The standard of review.

       Unless a federal agency has “(1) ‘improperly’ (2) ‘withheld’ (3) ‘agency

records,’” “a district court lacks jurisdiction to devise remedies to force an agency

to comply with the FOIA’s disclosure requirements.” United States Dep’t of

Justice v. Tax Analysts, 492 U.S. 136, 142 (1989) (quoting Kissinger v. Reporters

Comm. for Freedom of the Press, 445 U.S. 136, 150 (1980).

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      Exhaustion of administrative remedies is a jurisdictional prerequisite to

filing a FOIA suit. Hymen v. Merit Systems Protection Bd., 799 F.2d 1421, 1423

(9th Cir. 1986), overruled on other grounds by Capital Tracing, Inc. v. United

States, 63 F.3d 859 (9th Cir. 1995) (noting that “[t]he FOIA requires that

administrative appeals be exhausted before suit may be brought in federal court”
and finding subject matter jurisdiction lacking because plaintiff had failed to

exhaust his administrative remedies); In re Steele, 799 F.2d 461, 465 (9th Cir.

1986) (holding that “[e]xhaustion of a parties’ [sic] administrative remedies is

required under the FOIA before that party can seek judicial review” and that
“[w]here no attempt to comply fully with agency procedures has been made, the
courts will assert their lack of jurisdiction under the exhaustion doctrine.”).8
      This Court reviews de novo whether a plaintiff has exhausted administrative

remedies. Bankston v. White, 345 F.3d 768, 770 (9th Cir. 2003).

      The Court reviews FOIA fee waiver decisions de novo, with review limited

to the record before the agency. 5 U.S.C. § 552(a)(4)(A)(vii); Friends of the Coast

8
       Monaghan relies on a case from the D.C. Circuit to argue that “exhaustion of
administrative remedies in a FOIA action are [sic] not jurisdictional,” citing Hidalgo
v. FBI, 344 F.3d 1256, 1258 (D.C. Cir. 2003). AOB 7, n.3 (emphasis in original).
That case is not the law of this Circuit. See Said v. Gonzales, 2007 WL 2789344 at
*6 (W.D. Wa., Sept. 24, 2007) (unpublished) (“To be sure, the United States Court of
Appeals for the District of Columbia Circuit has held that exhaustion of administrative
remedies is not a jurisdictional requirement under FOIA, but is instead a
jurisprudential doctrine. The court in Hidalgo v. FBI, 344 F.3d 1256, 1258 (D.C. Cir.
2003), stated that “the exhaustion requirement is not jurisdictional because the FOIA
does not unequivocally make it so.” . . . However, this Court must follow Ninth
Circuit law. Because the Ninth Circuit’s decisions in Hymen and Steele speak of
exhaustion as a jurisdictional requirement in a FOIA action, the Court treats
exhaustion of administrative remedies as a jurisdictional prerequisite to Plaintiffs’
claims under FOIA.”).

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Fork v. United States Dep’t of the Interior, 110 F.3d 53, 54 (9th Cir. 1997);

McClellan Ecological Seepage Situation v. Carlucci, 835 F.2d 1282, 1284 (9th Cir.

1987).

       This Court reviews de novo a district court’s decision to treat an argument as

waived. Universal Health Services, Inc. v. Thompson, 363 F.3d 1013, 1019 (9th

Cir. 2004).
B.     The district court correctly found that Monaghan was not entitled to a
       fee waiver under the fee waiver subsection, 5 U.S.C. § 552(a)(4)(A)(iii).

       FOIA generally requires requesters to pay search and duplication fees.

Kissinger, 445 U.S. at 153; see also 5 U.S.C. § 552(a)(4)(A)(ii)(III) (FOIA

provides that agencies may charge “reasonable standard charges for document

search and duplication”); 28 C.F.R. § 16.11 (Department of Justice’s regulation on
FOIA fees). Agencies may require payment of these fees in advance when they

determine that the cost of producing the requested information will exceed $250. 5
U.S.C. § 552(a)(4)(A)(v).
       By the time of the district court’s dismissal, Monaghan had not paid the

$846.00 in fees that the Agency had incurred so far in processing his prior and
most recent FOIA requests. ER 65. The Agency therefore had no obligation to

provide him with the records he sought. Kissinger, 445 U.S. at 153.

       In the Agency’s response, it explained why Monaghan’s request did not

qualify under the fee waiver subsection. ER 63-65.9 In Monaghan’s motion for

9
       In this appeal, Monaghan does not actually attack the merits of the Agency’s
position. AOB 16-23. He asks this Court to ignore the Agency’s response instead.
Id. He has therefore waived any argument that the Agency’s response was incorrect.
See, e.g., Armentero v. I.N.S., 412 F.3d 1088, 1095 (9th Cir. 2005) ( “Failure to raise
                                          11
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summary judgment as to fee waiver, Monaghan fully briefed this issue, arguing

that his request did in fact qualify. SER 17-22. In making that argument, he

quoted extensively from the Agency’s response. Id.

      On appeal, instead of directly attacking the Agency’s and the district court’s

conclusion that he was not entitled to fee waiver, he claims that he made a prima

facie showing that he was entitled to a fee waiver, and claims that the district court

should not have considered the Agency’s response in the first place. AOB 16-23.

As explained above, however, Monaghan stipulated that the Agency’s response

was part of the administrative record. ER 54. He quoted extensively from the
Agency’s response in his motion for summary judgment. SER 17-19. Having
stipulated to this evidence, and having relied upon it, he cannot now claim it is not

part of the record.
      Even if Monaghan had not so stipulated, the district court’s decision to

include the Agency’s response would be correct. See Jarvik v. Central Intelligence

Agency, 495 F. Supp. 2d 67, 71 (D.D.C. 2007) (“The record before the agency

‘consists of, inter alia, the initial FOIA request, the agency’s response, and any

subsequent materials related to the administrative appeal.’” (quoting Forest

Guardians v. Dep’t of the Interior, 416 F.3d 1173, 1177 (10th Cir. 2005)

(emphasis added)) .




an argument in an opening brief constitutes waiver.”). The Agency therefore does not
repeat the analysis contained in the Agency’s response, ER 63-80, or in its opposition
to Monaghan’s motion for summary judgment as to fee waiver. SER 23-33. Should
the Court decide to address the merits of the Agency’s position, the Agency refers the
Court to ER 63-80 and SER 23-33.
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      Monaghan contends that his stipulation should have no effect because “in

the proceedings below, [Monaghan] subsequently filed an objection to the
inclusion of the supplemental materials that were not in fact actually components

of the administrative record presented before the agency.” AB 20, n. 15 (citations

omitted). The fact that Monaghan changed his mind about the administrative
record, months after stipulating to it, changes nothing.

      Monaghan describes the Agency’s response as “post hoc,” and claims that

the courts may not accept post hoc justifications for agency action. AOB 21, citing

Motor Vehicle Mfr’s Ass’n. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 50

(1983) and Camp v. Pitts, 411 U.S. 138, 142 (1973). These cases do not support

Monaghan’s argument. In Motor Vehicle, the Supreme Court stated, “courts may

not accept appellate counsel’s post hoc rationalizations for agency action.” 463

U.S. at 50. Camp likewise states, “the focal point for judicial review should be the

administrative record already in existence, not some new record made initially in
the reviewing court.” 411 U.S. at 142. Neither of these cases supports the notion

that the record cannot contain the very agency decision at issue in the case, simply
because that decision is untimely. Instead, as explained above, the administrative

record includes the agency’s response.

      While not explicitly addressing whether an agency’s response is part of the
administrative record, several cases discuss untimely agency actions taken after the

plaintiff files suit. See, e.g., Pollack v. United States Dep’t of Justice, 49 F.3d 115

(4th Cir. 1995) (considering agency’s untimely response in rejecting plaintiff’s
claim that he was relieved of obligation to pay fees because of late response);

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Jeanes v. United States Dep’t of Justice, 357 F. Supp. 2d 119, 123 (D.D.C. 2004)

(finding requester did not “constructively exhaust[] his administrative remedies
[even though] the agency did not respond to his request within the statutory period,

and then only notified him of the estimated fees for processing his request after he

had already filed suit”); Maydak v. United States Dep’t of Justice, 254 F. Supp. 2d

23, 50 (D.D.C. 2003) (“Although the IRS’s fee assessment came after the filing of

this lawsuit, plaintiff is obligated nonetheless to pay the fee or to seek from the

agency either a fee waiver or a fee reduction”); Trueblood v. United States Dep’t of

Treas., 943 F. Supp. 64, 68 (D.D.C. 1996) (noting that plaintiff received a request

for payment after filing suit). This Court should likewise consider the Agency’s
response here.10
C.     The district court correctly found that the Agency was not precluded
       from charging Monaghan fees under the fee preclusion subsection, 5
       U.S.C. § 552(a)(6)(viii).

       1.    Monaghan did not timely raise this argument.
       A requester “may have exhausted administrative remedies with respect to

one aspect of a FOIA request—and thus properly seek judicial review regarding
that request—and yet not have exhausted her remedies with respect to another

aspect of a FOIA request.” Dettmann v. United States Dep’t of Justice, 802 F.2d

1472, 1477 (D.C. Cir. 1986); see also Skrzypek v. United States Dep’t of Treas.,

550 F. Supp. 2d 71, 73-74 (D.D.C. 2008) (granting summary judgment to the


10
      Even without the Agency’s response, Monaghan did not show, particularly with
his Motion for Summary Judgment as to Fee Waiver, that he could disseminate
information to the public or was otherwise entitled to a fee waiver under 28 C.F.R. §
16.11(k).
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agency where the plaintiff failed to pay fees and failed to exhaust administrative

remedies as to a fee waiver).

       In Dettman, the requester had ongoing communications with the agency and

objected to various aspects of the agency’s FOIA responses. Dettman, 802 F.2d at

1476-77. The requester never objected at the administrative level to the manner in
which the agency processed and produced the portions of documents in which the

requester was not the subject of the agency’s investigations but in which the

requester’s name was mentioned. Id. When the requester attempted to raise such a

new objection for the first time in the litigation, the court “rejected [it] for failure to

exhaust administrative remedies.” Id.

       As explained above, Monaghan’s FOIA request sought a fee waiver by

claiming that “[d]isclosure of the requested information to me is not in my
commercial interest” and noting that he maintained “an open public access internet
FOIA archive of records pertaining to various aspects of the terrorist attacks of

September 1, 2011 . . . .” ER 57. When Monaghan did not receive a timely
response from the Agency, he filed an administrative appeal with OIP. ER 60-61.

This administrative appeal repeats Monaghan’s claim that he is entitled to a fee

waiver because he is one who seeks to disseminate information. ER 60. Nowhere
in this administrative appeal did Monaghan argue that the Agency’s untimely

response precluded it from charging a fee under the fee preclusion subsection. See

ER 60-61.
       Likewise, in his complaint, SER 1-4, his amended complaint, ER 87-100,

and his motion for summary judgment regarding fees, SER 17-22, Monaghan

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never claimed that the Agency was precluded from charging fees under the fee

preclusion subsection. Neither the Agency, SER 23-33, nor the district court, ER
50-53, mentioned the fee preclusion subsection in addressing Monaghan’s motion

for summary judgment as to fees. When Monaghan later raised the fee preclusion

subsection argument in his response to the Agency’s motion to dismiss or for
summary judgment, ER 7-33, and his a motion for summary judgment and for

reconsideration of FOIA fee waiver ruling, ER 34-53, the district court held that it

would not address this argument because of Monaghan’s failure to raise it in a
timely fashion:
      plaintiff waived this argument by not raising it anywhere in his
      complaint (see Dettman, 802 F.2d at 1476 (rejecting a new objection
      that had not been previously raised for “failure to exhaust
      administrative remedies”) . . . .

ER 4-6.

      On appeal, Monaghan claims that the district court’s holding was error
because he “cannot be required to preemptively anticipate issues that had not yet
been presented when he filed his FOIA action” in the district court, but that he

“timely and expressly address[ed] this issue after it was presented . . . .” and that “it
is beyond dispute that [Monaghan] did timely and expressly address this issue after

it was presented, in both his December 6, 2010 opposition to the agency’s Motion

To Dismiss . . . and in his Motion for Summary Judgment filing also submitted on

that date.” AOB 14 (record citations omitted).
      This argument creates the false impression that the Agency brought up the

fee preclusion subsection, and Monaghan merely responded. AOB 14. But


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Monaghan’s fee preclusion argument does not rebut anything the Agency raised

for the first time in its motion to dismiss or in the alternative for summary
judgment. SER 34-39. On the contrary, no one—not Monaghan, not the Agency,

and not the district court—ever mentioned the fee preclusion subsection as a basis

to avoid paying the fee until Monaghan did in his responses to the Agency’s
motion to dismiss or in the alternative for summary judgment on December 6,

2010. ER 7-49.

      Monaghan knew he had not received a timely response twenty days after he
sent the Agency his request—indeed, he mentioned the fact that he had not
received a timely response in his appeal to OIP on September 29, 2009. ER 60

(“The agency has not met is obligation under 5 U.S.C. § 552(a)(6)(A)(ii), to
“determine within 20 days . . . after the receipt of any such request whether to
comply with such request . . . .”). Instead of asserting that the fee preclusion

subsection applied in his administrative appeal, he waited until December 6,
2010—after filing his administrative appeal, his complaint and amended

complaint, and his motion for summary judgment as to fees based on the fee
waiver subsection—to finally argue his claim falls under the fee preclusion
subsection. SER 17-22. The district court correctly found this argument untimely

raised.

      2.     Monaghan misreads the fee preclusion subsection.
      In addition to finding the fee preclusion subsection argument untimely
raised, the district court found that this subsection would not preclude fees in any

event because the FBI’s largest, most complex file qualifies as “unusual

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circumstances.” ER 6. On appeal, Monaghan argues that the unusual

circumstances exception cannot apply, but in doing so, he misreads the statute.
       FOIA’s Paragraph 6 provides time limits within which an agency must

respond to requests. 5 U.S.C. § 552(a)(6)(A)(i)-(ii).11 This paragraph also

provides that these time limits may be extended if there are unusual or exceptional
circumstances, and if an agency provides notice to the requester. 5 U.S.C. §

circumstances. 5 U.S.C. § 552(a)(6)(B)(iii).12
       The fee preclusion subsection states that “An agency shall not assess search
fees . . . if the agency fails to comply with any time limit under paragraph (6), if no



11
       5 U.S.C. § 552 (a)(6)(A) states: “Each agency, upon any request for records
made under paragraph (1), (2), or (3) of this subsection, shall—(i) determine within
20 days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of
any such request whether to comply with such request and shall immediately notify
the person making such request of such determination and the reasons therefor, and
of the right of such person to appeal to the head of the agency any adverse
determination; and (ii) make a determination with respect to any appeal within twenty
days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of
such appeal. If on appeal the denial of the request for records is in whole or in part
upheld, the agency shall notify the person making such request of the provisions for
judicial review of that determination under paragraph (4) of this subsection.
12
       5 U.S.C. § 552(a)(6)(B)(iii) states: “As used in this subparagraph, “unusual
circumstances” means, but only to the extent reasonably necessary to the proper
processing of the particular requests (I) the need to search for and collect the requested
records from field facilities or other establishments that are separate from the office
processing the request; (II) the need to search for, collect, and appropriately examine
a voluminous amount of separate and distinct records which are demanded in a single
request; or (III) the need for consultation, which shall be conducted with all
practicable speed, with another agency having a substantial interest in the
determination of the request or among two or more components of the agency having
substantial subject-matter interest therein.”
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unusual or exceptional circumstances (as those terms are defined for purposes of

paragraphs (6)(B) and (C), respectively) apply to the processing of the request.” 5
U.S.C. § 552(a)(4)(A)(viii).

       In other words, the statue defines unusual circumstances, see 5 U.S.C. §

552(a)(6)(B)(iii), and states two results of such circumstances: (1) unusual
circumstances give the agency more time to respond if the agency gives proper

notice, see 5 U.S.C. § 552(a)(6)(b)(i)-(ii); and (2) unusual circumstances provide

an exception to fee preclusion under 5 U.S.C. § 552(a)(4)(A)(viii).

       Monaghan argues that because the Agency did not respond within the time
limits in 5 U.S.C. § 552(a)(6)(B)(i)-(ii), the unusual circumstances exception in the
fee preclusion subsection cannot apply. AOB 13, 15. Monaghan is

incorrect—nothing in the statute requires the Agency to respond timely in order for
unusual circumstances to exist in the first place. Indeed, Monaghan’s

interpretation of the statute would render the unusual circumstances exception to
the fee preclusion subsection a nullity. An agency would be required to respond
timely in order for unusual circumstances to apply. If an agency responds timely,

however, the fee preclusion subsection is not triggered in the first place. The Court

should therefore reject Monaghan’s interpretation. See United States v. Wenner,

351 F.3d 969, 975 (9th Cir. 2003) (noting the fundamental principle of statutory

construction that a statute should not be construed to render certain words or
phrases mere surplusage).13

13
      Monaghan does not appear to challenge the merits of the district court’s finding
of unusual circumstances. Any new assertion of error in the district court’s finding
of unusual circumstances is therefore waived. See, e.g., Armentero, 412 F.3d at 1095
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D.       The district court correctly found that it lacked jurisdiction to award
         relief where Monaghan had failed to pay fees and failed to obtain a fee
         waiver.

         In dismissing Monaghan’s complaint, the district court held that

Monaghan’s “failure to pay the required fees results in a failure to exhaust his

administrative remedies”; “as the agency has not ‘improperly withheld agency

records,’ the court lacks jurisdiction and the case is dismissed.” ER 6 (citing Tax

Analysts, 492 U.S. at 142; Kissinger, 445 U.S. at 150 ; Dettman, 802 F.2d at 1476-

77).

         On appeal, Monaghan claims that this was error because he constructively

exhausted his remedies under 5 U.S.C. § 552(a)(6)(C)(i)), which states that “[a]ny
person making a request to any agency for records under paragraph (1), (2), or (3)
of this subsection shall be deemed to have exhausted his administrative remedies
with respect to such request if the agency fails to comply with the applicable time

limit provisions of this paragraph.” AOB 8.
         Contrary to Monaghan’s claim, however, the Agency’s failure to respond

timely does not relieve Monaghan from the obligation to comply with Agency

procedures, including the payment of fees. See, e.g., Jeanes, 357 F. Supp. 2d at

122-23 (finding the plaintiff did not “constructively exhaust[] his administrative

remedies [even though] the agency did not respond to his request within the

statutory period, and then only notified him of the estimated fees for processing his

request after he had already filed suit”); Trueblood, 943 F. Supp. at 68 (“The

plaintiff argues that he has exhausted his remedies because he ‘filed suit’ on April


(“Failure to raise an argument in an opening brief constitutes waiver.”).
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2, 1996, the day his complaint was received by the Court, which was before the

[agency’s] April 8, 1996 request for payment. . . . Regardless of whether the
plaintiff ‘filed’ suit before or after receiving a request for payment, the plaintiff has

an obligation to pay for the reasonable copying and search fees assessed by the

defendant); see also Kurdyukov v. D.E.A., 578 F. Supp. 2d 61, 66 (D.D.C. 2008)

(“An agency’s failure to comply with the FOIA’s statutory time limits does not

relieve a requester of his obligation to exhaust his administrative remedies”);

Maydak, 254 F. Supp. 2d at 50 (“Although the IRS’s fee assessment came after the

filing of this lawsuit, plaintiff is obligated nonetheless to pay the fee or to seek
from the agency either a fee waiver or a fee reduction”).

      Monaghan relies on Pollack, 49 F.3d 115, for his claim that he was not

required to exhaust his administrative remedies. See AOB 10. There, as here, the

agency failed to respond to a FOIA request until after the requester had filed an

action in the district court. Pollack, 49 F.3d at 117. Like Monaghan, the plaintiff

there claimed he was entitled to receive all of the documents he requested free of

charge because the agency did not timely respond to his request. Id. at 118. The

Fourth Circuit held that the agency’s untimely response resulted in constructive

exhaustion for purposes of filing suit. Id. at 119-20. But it also held that the

plaintiff could not obtain the records he sought without paying fees. Id. at 119

(“The constructive exhaustion provision, however, did not relieve [the plaintiff] of
his statutory obligation to pay any and all fees which the agency was authorized to

collect.”). In other words, while the Fourth Circuit did not expressly describe the

failure to pay fees as a failure to exhaust administrative remedies, it still held that

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the plaintiff could not obtain the records requested without either paying the fee or

obtaining a fee waiver. Id.

      Likewise, in this case, regardless whether the Agency’s failure to respond

timely technically resulted in constructive exhaustion, that untimeliness itself does

not relieve Monaghan of his obligation to pay fees. Unless a federal agency has
“(1) ‘improperly’ (2) ‘withheld’ (3) ‘agency records,’” “a district court lacks

jurisdiction to devise remedies to force an agency to comply with the FOIA’s

disclosure requirements.” Tax Analysts, 492 U.S. at 142 (quoting from Kissinger,

445 U.S. at 150).

      Monaghan seeks to distinguish Pollack by arguing that unlike the plaintiff

there, the fee preclusion and fee waiver subsections give him an express statutory
basis for avoiding the payment of fees. AOB 10, n. 8. As discussed above,

however, neither the fee waiver subsection nor the fee preclusion subsection
provides him with a valid argument that he does not owe fees. He was therefore
not entitled to any judicial relief, and the district court correctly dismissed his case

for lack of subject matter jurisdiction.




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                                         VI.

                                    CONCLUSION

      For the foregoing reasons, the Agency respectfully asks this Court to affirm

the district court’s order dismissing this case.

      DATED this 7th day of November, 2011.

                                        Respectfully submitted,
                                        DANIEL G. BOGDEN
                                        United States Attorney

                                        BLAINE WELSH
                                        Civil Chief
                                        PATRICK ROSE
                                        Assistant United States Attorney

                                              /s/ Adam M. Flake
                                        ADAM M. FLAKE
                                        Assistant United States Attorney




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                             VII.
                 CERTIFICATE OF RELATED CASES

        We are unaware of any related cases pending in this court.


                                   /s/ Adam M. Flake
                                 ADAM M. FLAKE
                                 Assistant United States Attorney




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                                    VIII.

                 BRIEF FORMAT CERTIFICATION

  I certify that: (check appropriate options)
  Oversize Briefs:

  The court granted permission to exceed the length limitations set forth at Fed.
  R. App. 32(a)(7) by an order dated_________.

          or
  An enlargement of brief size is permissible under Ninth Circuit Rule 28-4.
  The brief is

  X            Proportionately spaced, has a typeface of 14 points or more and
               contains 6,188 words
  or is
               Monospaced, has 10.5 or fewer characters per inch and contains
                  words or ______ lines of text
  or is
               In conformance with the type specifications set forth at Fed. R.

               App. P. 32(a)(5) and does not exceed _____ pages.

                                     /s/ Adam M. Flake
                                   ADAM M. FLAKE
                                   Assistant United States Attorney




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                                        IX.

                         CERTIFICATE OF SERVICE


FEDEERAL BUREAU OF             )
INVESTIGATION; DEPARTMENT )                   C.A. No. 11-16214
OF JUSTICE                     )
                               )
          Plaintiff-Appellee,  )              D.C. No. 2:09-cv-2199-JCM-GWF
     vs.                       )              Nevada (Las Vegas)
                               )
AIDAN MONAGHAN,                )
                               )
          Defendant-Appellant. )
                               )
      I hereby certify that on November 7, 2011, I electronically filed the foregoing

Appellee’s Answering Brief with the Clerk of the Court for the United States Court
of Appeals for the Ninth Circuit by using the appellate CM/ECF system.

      I certify that all participants in the case are registered CM/ECF users and that
service will be accomplished by the appellate CM/ECF system.
.


                                  /s/ Terrie Murray
                                TERRIE MURRAY
                                Legal Assistant




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                        ADDENDUM
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Ninth Circuit Rule 28-2.7 Statement of Pertinent Constitutional Provisions,
Treaties, Statutes, Ordinances, Regulations and Rules

1.    5 U.S.C. § 552, entitled “Public information; agency rules, opinions, orders,
records, and proceedings” states:

(a) Each agency shall make available to the public information as follows:

(1) Each agency shall separately state and currently publish in the Federal Register for
the guidance of the public—
(A) descriptions of its central and field organization and the established places at
which, the employees (and in the case of a uniformed service, the members) from
whom, and the methods whereby, the public may obtain information, make submittals
or requests, or obtain decisions;

(B) statements of the general course and method by which its functions are channeled
and determined, including the nature and requirements of all formal and informal
procedures available;
(C) rules of procedure, descriptions of forms available or the places at which forms
may be obtained, and instructions as to the scope and contents of all papers, reports,
or examinations;
(D) substantive rules of general applicability adopted as authorized by law, and
statements of general policy or interpretations of general applicability formulated and
adopted by the agency; and

(E) each amendment, revision, or repeal of the foregoing.
Except to the extent that a person has actual and timely notice of the terms thereof, a
person may not in any manner be required to resort to, or be adversely affected by, a
matter required to be published in the Federal Register and not so published. For the
purpose of this paragraph, matter reasonably available to the class of persons affected
thereby is deemed published in the Federal Register when incorporated by reference
therein with the approval of the Director of the Federal Register.
(2) Each agency, in accordance with published rules, shall make available for public
inspection and copying—

(A) final opinions, including concurring and dissenting opinions, as well as orders,
made in the adjudication of cases;

(B) those statements of policy and interpretations which have been adopted by the
agency and are not published in the Federal Register;

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(C) administrative staff manuals and instructions to staff that affect a member of the
public;

(D) copies of all records, regardless of form or format, which have been released to
any person under paragraph (3) and which, because of the nature of their subject
matter, the agency determines have become or are likely to become the subject of
subsequent requests for substantially the same records; and

(E) a general index of the records referred to under subparagraph (D);
unless the materials are promptly published and copies offered for sale. For records
created on or after November 1, 1996, within one year after such date, each agency
shall make such records available, including by computer telecommunications or, if
computer telecommunications means have not been established by the agency, by
other electronic means. To the extent required to prevent a clearly unwarranted
invasion of personal privacy, an agency may delete identifying details when it makes
available or publishes an opinion, statement of policy, interpretation, staff manual,
instruction, or copies of records referred to in subparagraph (D). However, in each
case the justification for the deletion shall be explained fully in writing, and the extent
of such deletion shall be indicated on the portion of the record which is made available
or published, unless including that indication would harm an interest protected by the
exemption in subsection (b) under which the deletion is made. If technically feasible,
the extent of the deletion shall be indicated at the place in the record where the
deletion was made. Each agency shall also maintain and make available for public
inspection and copying current indexes providing identifying information for the
public as to any matter issued, adopted, or promulgated after July 4, 1967, and
required by this paragraph to be made available or published. Each agency shall
promptly publish, quarterly or more frequently, and distribute (by sale or otherwise)
copies of each index or supplements thereto unless it determines by order published
in the Federal Register that the publication would be unnecessary and impracticable,
in which case the agency shall nonetheless provide copies of such index on request at
a cost not to exceed the direct cost of duplication. Each agency shall make the index
referred to in subparagraph (E) available by computer telecommunications by
December 31, 1999. A final order, opinion, statement of policy, interpretation, or staff
manual or instruction that affects a member of the public may be relied on, used, or
cited as precedent by an agency against a party other than an agency only if—

(i) it has been indexed and either made available or published as provided by this
paragraph; or

(ii) the party has actual and timely notice of the terms thereof.
(3)(A) Except with respect to the records made available under paragraphs (1) and (2)
of this subsection, and except as provided in subparagraph (E), each agency, upon any
request for records which (i) reasonably describes such records and (ii) is made in
accordance with published rules stating the time, place, fees (if any), and procedures
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to be followed, shall make the records promptly available to any person.

(B) In making any record available to a person under this paragraph, an agency shall
provide the record in any form or format requested by the person if the record is
readily reproducible by the agency in that form or format. Each agency shall make
reasonable efforts to maintain its records in forms or formats that are reproducible for
purposes of this section.

(C) In responding under this paragraph to a request for records, an agency shall make
reasonable efforts to search for the records in electronic form or format, except when
such efforts would significantly interfere with the operation of the agency’s automated
information system.

(D) For purposes of this paragraph, the term “search” means to review, manually or
by automated means, agency records for the purpose of locating those records which
are responsive to a request.
(E) An agency, or part of an agency, that is an element of the intelligence community
(as that term is defined in section 3(4) of the National Security Act of 1947 (50 U.S.C.
401a(4))) shall not make any record available under this paragraph to—
(i) any government entity, other than a State, territory, commonwealth, or district of
the United States, or any subdivision thereof; or
(ii) a representative of a government entity described in clause (i).

(4)(A)(i) In order to carry out the provisions of this section, each agency shall
promulgate regulations, pursuant to notice and receipt of public comment, specifying
the schedule of fees applicable to the processing of requests under this section and
establishing procedures and guidelines for determining when such fees should be
waived or reduced. Such schedule shall conform to the guidelines which shall be
promulgated, pursuant to notice and receipt of public comment, by the Director of the
Office of Management and Budget and which shall provide for a uniform schedule of
fees for all agencies.
(ii) Such agency regulations shall provide that—

(I) fees shall be limited to reasonable standard charges for document search,
duplication, and review, when records are requested for commercial use;

(II) fees shall be limited to reasonable standard charges for document duplication
when records are not sought for commercial use and the request is made by an
educational or noncommercial scientific institution, whose purpose is scholarly or
scientific research; or a representative of the news media; and


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(III) for any request not described in (I) or (II), fees shall be limited to reasonable
standard charges for document search and duplication.

In this clause, the term “a representative of the news media” means any person or
entity that gathers information of potential interest to a segment of the public, uses its
editorial skills to turn the raw materials into a distinct work, and distributes that work
to an audience. In this clause, the term “news” means information that is about current
events or that would be of current interest to the public. Examples of news-media
entities are television or radio stations broadcasting to the public at large and
publishers of periodicals (but only if such entities qualify as disseminators of “news”)
who make their products available for purchase by or subscription by or free
distribution to the general public. These examples are not all-inclusive. Moreover, as
methods of news delivery evolve (for example, the adoption of the electronic
dissemination of newspapers through telecommunications services), such alternative
media shall be considered to be news-media entities. A freelance journalist shall be
regarded as working for a news-media entity if the journalist can demonstrate a solid
basis for expecting publication through that entity, whether or not the journalist is
actually employed by the entity. A publication contract would present a solid basis for
such an expectation; the Government may also consider the past publication record
of the requester in making such a determination.
(iii) Documents shall be furnished without any charge or at a charge reduced below
the fees established under clause (ii) if disclosure of the information is in the public
interest because it is likely to contribute significantly to public understanding of the
operations or activities of the government and is not primarily in the commercial
interest of the requester.

(iv) Fee schedules shall provide for the recovery of only the direct costs of search,
duplication, or review. Review costs shall include only the direct costs incurred during
the initial examination of a document for the purposes of determining whether the
documents must be disclosed under this section and for the purposes of withholding
any portions exempt from disclosure under this section. Review costs may not include
any costs incurred in resolving issues of law or policy that may be raised in the course
of processing a request under this section. No fee may be charged by any agency
under this section—

(I) if the costs of routine collection and processing of the fee are likely to equal or
exceed the amount of the fee; or

(II) for any request described in clause (ii)(II) or (III) of this subparagraph for the first
two hours of search time or for the first one hundred pages of duplication.
(v) No agency may require advance payment of any fee unless the requester has
previously failed to pay fees in a timely fashion, or the agency has determined that the
fee will exceed $250.

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(vi) Nothing in this subparagraph shall supersede fees chargeable under a statute
specifically providing for setting the level of fees for particular types of records.

(vii) In any action by a requester regarding the waiver of fees under this section, the
court shall determine the matter de novo: Provided, That the court’s review of the
matter shall be limited to the record before the agency.

(viii) An agency shall not assess search fees (or in the case of a requester described
under clause (ii)(II), duplication fees) under this subparagraph if the agency fails to
comply with any time limit under paragraph (6), if no unusual or exceptional
circumstances (as those terms are defined for purposes of paragraphs (6)(B) and (C),
respectively) apply to the processing of the request.

(B) On complaint, the district court of the United States in the district in which the
complainant resides, or has his principal place of business, or in which the agency
records are situated, or in the District of Columbia, has jurisdiction to enjoin the
agency from withholding agency records and to order the production of any agency
records improperly withheld from the complainant. In such a case the court shall
determine the matter de novo, and may examine the contents of such agency records
in camera to determine whether such records or any part thereof shall be withheld
under any of the exemptions set forth in subsection (b) of this section, and the burden
is on the agency to sustain its action. In addition to any other matters to which a court
accords substantial weight, a court shall accord substantial weight to an affidavit of
an agency concerning the agency’s determination as to technical feasibility under
paragraph (2)(C) and subsection (b) and reproducibility under paragraph (3)(B).

(C) Notwithstanding any other provision of law, the defendant shall serve an answer
or otherwise plead to any complaint made under this subsection within thirty days
after service upon the defendant of the pleading in which such complaint is made,
unless the court otherwise directs for good cause shown.
[(D) Repealed. Pub.L. 98-620, Title IV, § 402(2), Nov. 8, 1984, 98 Stat. 3357]

(E)(i) The court may assess against the United States reasonable attorney fees and
other litigation costs reasonably incurred in any case under this section in which the
complainant has substantially prevailed.

(ii) For purposes of this subparagraph, a complainant has substantially prevailed if the
complainant has obtained relief through either—

(I) a judicial order, or an enforceable written agreement or consent decree; or
(II) a voluntary or unilateral change in position by the agency, if the complainant’s
claim is not insubstantial.


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(F)(i) Whenever the court orders the production of any agency records improperly
withheld from the complainant and assesses against the United States reasonable
attorney fees and other litigation costs, and the court additionally issues a written
finding that the circumstances surrounding the withholding raise questions whether
agency personnel acted arbitrarily or capriciously with respect to the withholding, the
Special Counsel shall promptly initiate a proceeding to determine whether disciplinary
action is warranted against the officer or employee who was primarily responsible for
the withholding. The Special Counsel, after investigation and consideration of the
evidence submitted, shall submit his findings and recommendations to the
administrative authority of the agency concerned and shall send copies of the findings
and recommendations to the officer or employee or his representative. The
administrative authority shall take the corrective action that the Special Counsel
recommends.

(ii) The Attorney General shall—
(I) notify the Special Counsel of each civil action described under the first sentence
of clause (i); and

(II) annually submit a report to Congress on the number of such civil actions in the
preceding year.
(iii) The Special Counsel shall annually submit a report to Congress on the actions
taken by the Special Counsel under clause (i).
(G) In the event of noncompliance with the order of the court, the district court may
punish for contempt the responsible employee, and in the case of a uniformed service,
the responsible member.
(5) Each agency having more than one member shall maintain and make available for
public inspection a record of the final votes of each member in every agency
proceeding.

(6)(A) Each agency, upon any request for records made under paragraph (1), (2), or
(3) of this subsection, shall—

(i) determine within 20 days (excepting Saturdays, Sundays, and legal public
holidays) after the receipt of any such request whether to comply with such request
and shall immediately notify the person making such request of such determination
and the reasons therefor, and of the right of such person to appeal to the head of the
agency any adverse determination; and
(ii) make a determination with respect to any appeal within twenty days (excepting
Saturdays, Sundays, and legal public holidays) after the receipt of such appeal. If on
appeal the denial of the request for records is in whole or in part upheld, the agency

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shall notify the person making such request of the provisions for judicial review of
that determination under paragraph (4) of this subsection.

The 20-day period under clause (i) shall commence on the date on which the request
is first received by the appropriate component of the agency, but in any event not later
than ten days after the request is first received by any component of the agency that
is designated in the agency’s regulations under this section to receive requests under
this section. The 20-day period shall not be tolled by the agency except—

(I) that the agency may make one request to the requester for information and toll the
20-day period while it is awaiting such information that it has reasonably requested
from the requester under this section; or

(II) if necessary to clarify with the requester issues regarding fee assessment. In either
case, the agency’s receipt of the requester’s response to the agency’s request for
information or clarification ends the tolling period.
(B)(i) In unusual circumstances as specified in this subparagraph, the time limits
prescribed in either clause (i) or clause (ii) of subparagraph (A) may be extended by
written notice to the person making such request setting forth the unusual
circumstances for such extension and the date on which a determination is expected
to be dispatched. No such notice shall specify a date that would result in an extension
for more than ten working days, except as provided in clause (ii) of this subparagraph.
(ii) With respect to a request for which a written notice under clause (i) extends the
time limits prescribed under clause (i) of subparagraph (A), the agency shall notify the
person making the request if the request cannot be processed within the time limit
specified in that clause and shall provide the person an opportunity to limit the scope
of the request so that it may be processed within that time limit or an opportunity to
arrange with the agency an alternative time frame for processing the request or a
modified request. To aid the requester, each agency shall make available its FOIA
Public Liaison, who shall assist in the resolution of any disputes between the requester
and the agency. Refusal by the person to reasonably modify the request or arrange
such an alternative time frame shall be considered as a factor in determining whether
exceptional circumstances exist for purposes of subparagraph (C).

(iii) As used in this subparagraph, “unusual circumstances” means, but only to the
extent reasonably necessary to the proper processing of the particular requests—

(I) the need to search for and collect the requested records from field facilities or other
establishments that are separate from the office processing the request;
(II) the need to search for, collect, and appropriately examine a voluminous amount
of separate and distinct records which are demanded in a single request; or


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(III) the need for consultation, which shall be conducted with all practicable speed,
with another agency having a substantial interest in the determination of the request
or among two or more components of the agency having substantial subject-matter
interest therein.
(iv) Each agency may promulgate regulations, pursuant to notice and receipt of public
comment, providing for the aggregation of certain requests by the same requestor, or
by a group of requestors acting in concert, if the agency reasonably believes that such
requests actually constitute a single request, which would otherwise satisfy the
unusual circumstances specified in this subparagraph, and the requests involve clearly
related matters. Multiple requests involving unrelated matters shall not be aggregated.

(C)(i) Any person making a request to any agency for records under paragraph (1),
(2), or (3) of this subsection shall be deemed to have exhausted his administrative
remedies with respect to such request if the agency fails to comply with the applicable
time limit provisions of this paragraph. If the Government can show exceptional
circumstances exist and that the agency is exercising due diligence in responding to
the request, the court may retain jurisdiction and allow the agency additional time to
complete its review of the records. Upon any determination by an agency to comply
with a request for records, the records shall be made promptly available to such person
making such request. Any notification of denial of any request for records under this
subsection shall set forth the names and titles or positions of each person responsible
for the denial of such request.
(ii) For purposes of this subparagraph, the term “exceptional circumstances” does not
include a delay that results from a predictable agency workload of requests under this
section, unless the agency demonstrates reasonable progress in reducing its backlog
of pending requests.
(iii) Refusal by a person to reasonably modify the scope of a request or arrange an
alternative time frame for processing a request (or a modified request) under clause
(ii) after being given an opportunity to do so by the agency to whom the person made
the request shall be considered as a factor in determining whether exceptional
circumstances exist for purposes of this subparagraph.
(D)(i) Each agency may promulgate regulations, pursuant to notice and receipt of
public comment, providing for multitrack processing of requests for records based on
the amount of work or time (or both) involved in processing requests.

(ii) Regulations under this subparagraph may provide a person making a request that
does not qualify for the fastest multitrack processing an opportunity to limit the scope
of the request in order to qualify for faster processing.
(iii) This subparagraph shall not be considered to affect the requirement under
subparagraph (C) to exercise due diligence.

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(E)(i) Each agency shall promulgate regulations, pursuant to notice and receipt of
public comment, providing for expedited processing of requests for records—

(I) in cases in which the person requesting the records demonstrates a compelling
need; and

(II) in other cases determined by the agency.

(ii) Notwithstanding clause (i), regulations under this subparagraph must ensure—
(I) that a determination of whether to provide expedited processing shall be made, and
notice of the determination shall be provided to the person making the request, within
10 days after the date of the request; and

(II) expeditious consideration of administrative appeals of such determinations of
whether to provide expedited processing.
(iii) An agency shall process as soon as practicable any request for records to which
the agency has granted expedited processing under this subparagraph. Agency action
to deny or affirm denial of a request for expedited processing pursuant to this
subparagraph, and failure by an agency to respond in a timely manner to such a
request shall be subject to judicial review under paragraph (4), except that the judicial
review shall be based on the record before the agency at the time of the determination.
(iv) A district court of the United States shall not have jurisdiction to review an
agency denial of expedited processing of a request for records after the agency has
provided a complete response to the request.
(v) For purposes of this subparagraph, the term “compelling need” means—

(I) that a failure to obtain requested records on an expedited basis under this paragraph
could reasonably be expected to pose an imminent threat to the life or physical safety
of an individual; or
(II) with respect to a request made by a person primarily engaged in disseminating
information, urgency to inform the public concerning actual or alleged Federal
Government activity.

(vi) A demonstration of a compelling need by a person making a request for expedited
processing shall be made by a statement certified by such person to be true and correct
to the best of such person’s knowledge and belief.
(F) In denying a request for records, in whole or in part, an agency shall make a
reasonable effort to estimate the volume of any requested matter the provision of
which is denied, and shall provide any such estimate to the person making the

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request, unless providing such estimate would harm an interest protected by the
exemption in subsection (b) pursuant to which the denial is made.

(7) Each agency shall—
(A) establish a system to assign an individualized tracking number for each request
received that will take longer than ten days to process and provide to each person
making a request the tracking number assigned to the request; and

(B) establish a telephone line or Internet service that provides information about the
status of a request to the person making the request using the assigned tracking
number, including—

(i) the date on which the agency originally received the request; and

(ii) an estimated date on which the agency will complete action on the request.
(b) This section does not apply to matters that are—

(1) (A) specifically authorized under criteria established by an Executive order to be
kept secret in the interest of national defense or foreign policy and (B) are in fact
properly classified pursuant to such Executive order;

(2) related solely to the internal personnel rules and practices of an agency;
(3) specifically exempted from disclosure by statute (other than section 552b of this
title), if that statute—
(A)(i) requires that the matters be withheld from the public in such a manner as to
leave no discretion on the issue; or
(ii) establishes particular criteria for withholding or refers to particular types of
matters to be withheld; and
(B) if enacted after the date of enactment of the OPEN FOIA Act of 2009, specifically
cites to this paragraph.

(4) trade secrets and commercial or financial information obtained from a person and
privileged or confidential;

(5) inter-agency or intra-agency memorandums or letters which would not be available
by law to a party other than an agency in litigation with the agency;
(6) personnel and medical files and similar files the disclosure of which would
constitute a clearly unwarranted invasion of personal privacy;

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(7) records or information compiled for law enforcement purposes, but only to the
extent that the production of such law enforcement records or information (A) could
reasonably be expected to interfere with enforcement proceedings, (B) would deprive
a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be
expected to constitute an unwarranted invasion of personal privacy, (D) could
reasonably be expected to disclose the identity of a confidential source, including a
State, local, or foreign agency or authority or any private institution which furnished
information on a confidential basis, and, in the case of a record or information
compiled by criminal law enforcement authority in the course of a criminal
investigation or by an agency conducting a lawful national security intelligence
investigation, information furnished by a confidential source, (E) would disclose
techniques and procedures for law enforcement investigations or prosecutions, or
would disclose guidelines for law enforcement investigations or prosecutions if such
disclosure could reasonably be expected to risk circumvention of the law, or (F) could
reasonably be expected to endanger the life or physical safety of any individual;
(8) contained in or related to examination, operating, or condition reports prepared by,
on behalf of, or for the use of an agency responsible for the regulation or supervision
of financial institutions; or

(9) geological and geophysical information and data, including maps, concerning
wells.

Any reasonably segregable portion of a record shall be provided to any person
requesting such record after deletion of the portions which are exempt under this
subsection. The amount of information deleted, and the exemption under which the
deletion is made, shall be indicated on the released portion of the record, unless
including that indication would harm an interest protected by the exemption in this
subsection under which the deletion is made. If technically feasible, the amount of the
information deleted, and the exemption under which the deletion is made, shall be
indicated at the place in the record where such deletion is made.
(c)(1) Whenever a request is made which involves access to records described in
subsection (b)(7)(A) and—
(A) the investigation or proceeding involves a possible violation of criminal law; and

(B) there is reason to believe that (i) the subject of the investigation or proceeding is
not aware of its pendency, and (ii) disclosure of the existence of the records could
reasonably be expected to interfere with enforcement proceedings, the agency may,
during only such time as that circumstance continues, treat the records as not subject
to the requirements of this section.
(2) Whenever informant records maintained by a criminal law enforcement agency
under an informant’s name or personal identifier are requested by a third party
according to the informant’s name or personal identifier, the agency may treat the
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records as not subject to the requirements of this section unless the informant’s status
as an informant has been officially confirmed.

(3) Whenever a request is made which involves access to records maintained by the
Federal Bureau of Investigation pertaining to foreign intelligence or
counterintelligence, or international terrorism, and the existence of the records is
classified information as provided in subsection (b)(1), the Bureau may, as long as the
existence of the records remains classified information, treat the records as not subject
to the requirements of this section.
(d) This section does not authorize withholding of information or limit the availability
of records to the public, except as specifically stated in this section. This section is not
authority to withhold information from Congress.

(e)(1) On or before February 1 of each year, each agency shall submit to the Attorney
General of the United States a report which shall cover the preceding fiscal year and
which shall include—
(A) the number of determinations made by the agency not to comply with requests for
records made to such agency under subsection (a) and the reasons for each such
determination;
(B)(i) the number of appeals made by persons under subsection (a)(6), the result of
such appeals, and the reason for the action upon each appeal that results in a denial of
information; and

(ii) a complete list of all statutes that the agency relies upon to authorize the agency
to withhold information under subsection (b)(3), the number of occasions on which
each statute was relied upon, a description of whether a court has upheld the decision
of the agency to withhold information under each such statute, and a concise
description of the scope of any information withheld;
(C) the number of requests for records pending before the agency as of September 30
of the preceding year, and the median and average number of days that such requests
had been pending before the agency as of that date;

(D) the number of requests for records received by the agency and the number of
requests which the agency processed;

(E) the median number of days taken by the agency to process different types of
requests, based on the date on which the requests were received by the agency;
(F) the average number of days for the agency to respond to a request beginning on
the date on which the request was received by the agency, the median number of days
for the agency to respond to such requests, and the range in number of days for the
agency to respond to such requests;
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(G) based on the number of business days that have elapsed since each request was
originally received by the agency—

(i) the number of requests for records to which the agency has responded with a
determination within a period up to and including 20 days, and in 20-day increments
up to and including 200 days;

(ii) the number of requests for records to which the agency has responded with a
determination within a period greater than 200 days and less than 301 days;
(iii) the number of requests for records to which the agency has responded with a
determination within a period greater than 300 days and less than 401 days; and

(iv) the number of requests for records to which the agency has responded with a
determination within a period greater than 400 days;
(H) the average number of days for the agency to provide the granted information
beginning on the date on which the request was originally filed, the median number
of days for the agency to provide the granted information, and the range in number of
days for the agency to provide the granted information;
(I) the median and average number of days for the agency to respond to administrative
appeals based on the date on which the appeals originally were received by the
agency, the highest number of business days taken by the agency to respond to an
administrative appeal, and the lowest number of business days taken by the agency to
respond to an administrative appeal;

(J) data on the 10 active requests with the earliest filing dates pending at each agency,
including the amount of time that has elapsed since each request was originally
received by the agency;
(K) data on the 10 active administrative appeals with the earliest filing dates pending
before the agency as of September 30 of the preceding year, including the number of
business days that have elapsed since the requests were originally received by the
agency;

(L) the number of expedited review requests that are granted and denied, the average
and median number of days for adjudicating expedited review requests, and the
number adjudicated within the required 10 days;

(M) the number of fee waiver requests that are granted and denied, and the average
and median number of days for adjudicating fee waiver determinations;
(N) the total amount of fees collected by the agency for processing requests; and

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(O) the number of full-time staff of the agency devoted to processing requests for
records under this section, and the total amount expended by the agency for
processing such requests.
(2) Information in each report submitted under paragraph (1) shall be expressed in
terms of each principal component of the agency and for the agency overall.

(3) Each agency shall make each such report available to the public including by
computer telecommunications, or if computer telecommunications means have not
been established by the agency, by other electronic means. In addition, each agency
shall make the raw statistical data used in its reports available electronically to the
public upon request.

(4) The Attorney General of the United States shall make each report which has been
made available by electronic means available at a single electronic access point. The
Attorney General of the United States shall notify the Chairman and ranking minority
member of the Committee on Government Reform and Oversight of the House of
Representatives and the Chairman and ranking minority member of the Committees
on Governmental Affairs and the Judiciary of the Senate, no later than April 1 of the
year in which each such report is issued, that such reports are available by electronic
means.
(5) The Attorney General of the United States, in consultation with the Director of the
Office of Management and Budget, shall develop reporting and performance
guidelines in connection with reports required by this subsection by October 1, 1997,
and may establish additional requirements for such reports as the Attorney General
determines may be useful.
(6) The Attorney General of the United States shall submit an annual report on or
before April 1 of each calendar year which shall include for the prior calendar year a
listing of the number of cases arising under this section, the exemption involved in
each case, the disposition of such case, and the cost, fees, and penalties assessed under
subparagraphs (E), (F), and (G) of subsection (a)(4). Such report shall also include a
description of the efforts undertaken by the Department of Justice to encourage
agency compliance with this section.

(f) For purposes of this section, the term—

(1) “agency” as defined in section 551(1) of this title includes any executive
department, military department, Government corporation, Government controlled
corporation, or other establishment in the executive branch of the Government
(including the Executive Office of the President), or any independent regulatory
agency; and



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(2) “record” and any other term used in this section in reference to information
includes—

(A) any information that would be an agency record subject to the requirements of this
section when maintained by an agency in any format, including an electronic format;
and

(B) any information described under subparagraph (A) that is maintained for an
agency by an entity under Government contract, for the purposes of records
management.
(g) The head of each agency shall prepare and make publicly available upon request,
reference material or a guide for requesting records or information from the agency,
subject to the exemptions in subsection (b), including—

(1) an index of all major information systems of the agency;
(2) a description of major information and record locator systems maintained by the
agency; and

(3) a handbook for obtaining various types and categories of public information from
the agency pursuant to chapter 35 of title 44, and under this section.

(h)(1) There is established the Office of Government Information Services within the
National Archives and Records Administration.

(2) The Office of Government Information Services shall—
(A) review policies and procedures of administrative agencies under this section;

(B) review compliance with this section by administrative agencies; and
(C) recommend policy changes to Congress and the President to improve the
administration of this section.
(3) The Office of Government Information Services shall offer mediation services to
resolve disputes between persons making requests under this section and
administrative agencies as a non-exclusive alternative to litigation and, at the
discretion of the Office, may issue advisory opinions if mediation has not resolved the
dispute.

(i) The Government Accountability Office shall conduct audits of administrative
agencies on the implementation of this section and issue reports detailing the results
of such audits.

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(j) Each agency shall designate a Chief FOIA Officer who shall be a senior official of
such agency (at the Assistant Secretary or equivalent level).

(k) The Chief FOIA Officer of each agency shall, subject to the authority of the head
of the agency—

(1) have agency-wide responsibility for efficient and appropriate compliance with this
section;

(2) monitor implementation of this section throughout the agency and keep the head
of the agency, the chief legal officer of the agency, and the Attorney General
appropriately informed of the agency’s performance in implementing this section;

(3) recommend to the head of the agency such adjustments to agency practices,
policies, personnel, and funding as may be necessary to improve its implementation
of this section;
(4) review and report to the Attorney General, through the head of the agency, at such
times and in such formats as the Attorney General may direct, on the agency’s
performance in implementing this section;
(5) facilitate public understanding of the purposes of the statutory exemptions of this
section by including concise descriptions of the exemptions in both the agency’s
handbook issued under subsection (g), and the agency’s annual report on this section,
and by providing an overview, where appropriate, of certain general categories of
agency records to which those exemptions apply; and

(6) designate one or more FOIA Public Liaisons.

(l) FOIA Public Liaisons shall report to the agency Chief FOIA Officer and shall serve
as supervisory officials to whom a requester under this section can raise concerns
about the service the requester has received from the FOIA Requester Center,
following an initial response from the FOIA Requester Center Staff. FOIA Public
Liaisons shall be responsible for assisting in reducing delays, increasing transparency
and understanding of the status of requests, and assisting in the resolution of disputes.




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2.     28 C.F.R. § 16.11, entitled “Fees,” states:

(a) In general. Components shall charge for processing requests under the FOIA in
accordance with paragraph (c) of this section, except where fees are limited under
paragraph (d) of this section or where a waiver or reduction of fees is granted under
paragraph (k) of this section. A component ordinarily shall collect all applicable fees
before sending copies of requested records to a requester. Requesters must pay fees
by check or money order made payable to the Treasury of the United States.
(b) Definitions. For purposes of this section:

(1) Commercial use request means a request from or on behalf of a person who seeks
information for a use or purpose that furthers his or her commercial, trade, or profit
interests, which can include furthering those interests through litigation. Components
shall determine, whenever reasonably possible, the use to which a requester will put
the requested records. When it appears that the requester will put the records to a
commercial use, either because of the nature of the request itself or because a
component has reasonable cause to doubt a requester’s stated use, the component shall
provide the requester a reasonable opportunity to submit further clarification.

(2) Direct costs means those expenses that an agency actually incurs in searching for
and duplicating (and, in the case of commercial use requests, reviewing) records to
respond to a FOIA request. Direct costs include, for example, the salary of the
employee performing the work (the basic rate of pay for the employee, plus 16 percent
of that rate to cover benefits) and the cost of operating duplication machinery. Not
included in direct costs are overhead expenses such as the costs of space and heating
or lighting of the facility in which the records are kept.

(3) Duplication means the making of a copy of a record, or of the information
contained in it, necessary to respond to a FOIA request. Copies can take the form of
paper, microform, audiovisual materials, or electronic records (for example, magnetic
tape or disk), among others. Components shall honor a requester’s specified
preference of form or format of disclosure if the record is readily reproducible with
reasonable efforts in the requested form or format by the office responding to the
request.
(4) Educational institution means a preschool, a public or private elementary or
secondary school, an institution of undergraduate higher education, an institution of
graduate higher education, an institution of professional education, or an institution
of vocational education, that operates a program of scholarly research. To be in this
category, a requester must show that the request is authorized by and is made under
the auspices of a qualifying institution and that the records are not sought for a
commercial use but are sought to further scholarly research.



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(5) Noncommercial scientific institution means an institution that is not operated on
a “commercial” basis, as that term is defined in paragraph (b)(1) of this section, and
that is operated solely for the purpose of conducting scientific research the results of
which are not intended to promote any particular product or industry. To be in this
category, a requester must show that the request is authorized by and is made under
the auspices of a qualifying institution and that the records are not sought for a
commercial use but are sought to further scientific research.

(6) Representative of the news media, or news media requester, means any person
actively gathering news for an entity that is organized and operated to publish or
broadcast news to the public. The term “news” means information that is about current
events or that would be of current interest to the public. Examples of news media
entities include television or radio stations broadcasting to the public at large and
publishers of periodicals (but only in those instances where they can qualify as
disseminators of “news”) who make their products available for purchase or
subscription by the general public. For “freelance” journalists to be regarded as
working for a news organization, they must demonstrate a solid basis for expecting
publication through that organization. A publication contract would be the clearest
proof, but components shall also look to the past publication record of a requester in
making this determination. To be in this category, a requester must not be seeking the
requested records for a commercial use. However, a request for records supporting the
news-dissemination function of the requester shall not be considered to be for a
commercial use.
(7) Review means the examination of a record located in response to a request in order
to determine whether any portion of it is exempt from disclosure. It also includes
processing any record for disclosure—for example, doing all that is necessary to
redact it and prepare it for disclosure. Review costs are recoverable even if a record
ultimately is not disclosed. Review time includes time spent considering any formal
objection to disclosure made by a business submitter under § 16.8, but does not
include time spent resolving general legal or policy issues regarding the application
of exemptions.

(8) Search means the process of looking for and retrieving records or information
responsive to a request. It includes page-by-page or line-by-line identification of
information within records and also includes reasonable efforts to locate and retrieve
information from records maintained in electronic form or format. Components shall
ensure that searches are done in the most efficient and least expensive manner
reasonably possible. For example, components shall not search line-by-line where
duplicating an entire document would be quicker and less expensive.

(c) Fees. In responding to FOIA requests, components shall charge the following fees
unless a waiver or reduction of fees has been granted under paragraph (k) of this
section:

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(1) Search.

(i) Search fees shall be charged for all requests—other than requests made by
educational institutions, noncommercial scientific institutions, or representatives of
the news media—subject to the limitations of paragraph (d) of this section.
Components may charge for time spent searching even if they do not locate any
responsive record or if they withhold the record(s) located as entirely exempt from
disclosure.

(ii) For each quarter hour spent by clerical personnel in searching for and retrieving
a requested record, the fee will be $4.00. Where a search and retrieval cannot be
performed entirely by clerical personnel—for example, where the identification of
records within the scope of a request requires the use of professional personnel—the
fee will be $7.00 for each quarter hour of search time spent by professional personnel.
Where the time of managerial personnel is required, the fee will be $10.25 for each
quarter hour of time spent by those personnel.
(iii) For computer searches of records, requesters will be charged the direct costs of
conducting the search, although certain requesters (as provided in paragraph (d)(1) of
this section) will be charged no search fee and certain other requesters (as provided
in paragraph (d)(3) of this section) will be entitled to the cost equivalent of two hours
of manual search time without charge. These direct costs will include the cost of
operating a central processing unit for that portion of operating time that is directly
attributable to searching for responsive records, as well as the costs of
operator/programmer salary apportionable to the search.

(2) Duplication. Duplication fees will be charged to all requesters, subject to the
limitations of paragraph (d) of this section. For a paper photocopy of a record (no
more than one copy of which need be supplied), the fee will be ten cents per page. For
copies produced by computer, such as tapes or printouts, components will charge the
direct costs, including operator time, of producing the copy. For other forms of
duplication, components will charge the direct costs of that duplication.

(3) Review. Review fees will be charged to requesters who make a commercial use
request. Review fees will be charged only for the initial record review—in other
words, the review done when a component determines whether an exemption applies
to a particular record or record portion at the initial request level. No charge will be
made for review at the administrative appeal level for an exemption already applied.
However, records or record portions withheld under an exemption that is subsequently
determined not to apply may be reviewed again to determine whether any other
exemption not previously considered applies; the costs of that review are chargeable
where it is made necessary by such a change of circumstances. Review fees will be
charged at the same rates as those charged for a search under paragraph (c)(1)(ii) of
this section.


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(d) Limitations on charging fees.

(1) No search fee will be charged for requests by educational institutions,
noncommercial scientific institutions, or representatives of the news media.
(2) No search fee or review fee will be charged for a quarter-hour period unless more
than half of that period is required for search or review.

(3) Except for requesters seeking records for a commercial use, components will
provide without charge:
(i) The first 100 pages of duplication (or the cost equivalent); and

(ii) The first two hours of search (or the cost equivalent).

(4) Whenever a total fee calculated under paragraph (c) of this section is $14.00 or
less for any request, no fee will be charged.
(5) The provisions of paragraphs (d)(3) and (4) of this section work together. This
means that for requesters other than those seeking records for a commercial use, no
fee will be charged unless the cost of search in excess of two hours plus the cost of
duplication in excess of 100 pages totals more than $14.00.

(e) Notice of anticipated fees in excess of $25.00. When a component determines or
estimates that the fees to be charged under this section will amount to more than
$25.00, the component shall notify the requester of the actual or estimated amount of
the fees, unless the requester has indicated a willingness to pay fees as high as those
anticipated. If only a portion of the fee can be estimated readily, the component shall
advise the requester that the estimated fee may be only a portion of the total fee. In
cases in which a requester has been notified that actual or estimated fees amount to
more than $25.00, the request shall not be considered received and further work shall
not be done on it until the requester agrees to pay the anticipated total fee. Any such
agreement should be memorialized in writing. A notice under this paragraph will offer
the requester an opportunity to discuss the matter with Department personnel in order
to reformulate the request to meet the requester’s needs at a lower cost.

(f) Charges for other services. Apart from the other provisions of this section, when
a component chooses as a matter of administrative discretion to provide a special
service—such as certifying that records are true copies or sending them by other than
ordinary mail—the direct costs of providing the service ordinarily will be charged.

(g) Charging interest. Components may charge interest on any unpaid bill starting on
the 31st day following the date of billing the requester. Interest charges will be
assessed at the rate provided in 31 U.S.C. 3717 and will accrue from the date of the
billing until payment is received by the component. Components will follow the
provisions of the Debt Collection Act of 1982 (Pub.L. 97–365, 96 Stat. 1749), as
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amended, and its administrative procedures, including the use of consumer reporting
agencies, collection agencies, and offset.

(h) Aggregating requests. Where a component reasonably believes that a requester or
a group of requesters acting together is attempting to divide a request into a series of
requests for the purpose of avoiding fees, the component may aggregate those requests
and charge accordingly. Components may presume that multiple requests of this type
made within a 30–day period have been made in order to avoid fees. Where requests
are separated by a longer period, components will aggregate them only where there
exists a solid basis for determining that aggregation is warranted under all the
circumstances involved. Multiple requests involving unrelated matters will not be
aggregated.

(i) Advance payments.

(1) For requests other than those described in paragraphs (i)(2) and (3) of this section,
a component shall not require the requester to make an advance payment—in other
words, a payment made before work is begun or continued on a request. Payment
owed for work already completed (i.e., a prepayment before copies are sent to a
requester) is not an advance payment.
(2) Where a component determines or estimates that a total fee to be charged under
this section will be more than $250.00, it may require the requester to make an
advance payment of an amount up to the amount of the entire anticipated fee before
beginning to process the request, except where it receives a satisfactory assurance of
full payment from a requester that has a history of prompt payment.

(3) Where a requester has previously failed to pay a properly charged FOIA fee to any
component or agency within 30 days of the date of billing, a component may require
the requester to pay the full amount due, plus any applicable interest, and to make an
advance payment of the full amount of any anticipated fee, before the component
begins to process a new request or continues to process a pending request from that
requester.
(4) In cases in which a component requires advance payment or payment due under
paragraph (i)(2) or (3) of this section, the request shall not be considered received and
further work will not be done on it until the required payment is received.

(j) Other statutes specifically providing for fees. The fee schedule of this section does
not apply to fees charged under any statute that specifically requires an agency to set
and collect fees for particular types of records. Where records responsive to requests
are maintained for distribution by agencies operating such statutorily based fee
schedule programs, components will inform requesters of the steps for obtaining
records from those sources so that they may do so most economically.


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(k) Requirements for waiver or reduction of fees.

(1) Records responsive to a request will be furnished without charge or at a charge
reduced below that established under paragraph (c) of this section where a component
determines, based on all available information, that the requester has demonstrated
that:

(i) Disclosure of the requested information is in the public interest because it is likely
to contribute significantly to public understanding of the operations or activities of the
government, and
(ii) Disclosure of the information is not primarily in the commercial interest of the
requester.

(2) To determine whether the first fee waiver requirement is met, components will
consider the following factors:
(i) The subject of the request: Whether the subject of the requested records concerns
“the operations or activities of the government.” The subject of the requested records
must concern identifiable operations or activities of the federal government, with a
connection that is direct and clear, not remote or attenuated.
(ii) The informative value of the information to be disclosed: Whether the disclosure
is “likely to contribute” to an understanding of government operations or activities.
The disclosable portions of the requested records must be meaningfully informative
about government operations or activities in order to be “likely to contribute” to an
increased public understanding of those operations or activities. The disclosure of
information that already is in the public domain, in either a duplicative or a
substantially identical form, would not be as likely to contribute to such understanding
where nothing new would be added to the public’s understanding.
(iii) The contribution to an understanding of the subject by the public likely to result
from disclosure: Whether disclosure of the requested information will contribute to
“public understanding.” The disclosure must contribute to the understanding of a
reasonably broad audience of persons interested in the subject, as opposed to the
individual understanding of the requester. A requester’s expertise in the subject area
and ability and intention to effectively convey information to the public shall be
considered. It shall be presumed that a representative of the news media will satisfy
this consideration.

(iv) The significance of the contribution to public understanding: Whether the
disclosure is likely to contribute “significantly” to public understanding of
government operations or activities. The public’s understanding of the subject in
question, as compared to the level of public understanding existing prior to the
disclosure, must be enhanced by the disclosure to a significant extent. Components
shall not make value judgments about whether information that would contribute
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significantly to public understanding of the operations or activities of the government
is “important” enough to be made public.

(3) To determine whether the second fee waiver requirement is met, components will
consider the following factors:

(i) The existence and magnitude of a commercial interest: Whether the requester has
a commercial interest that would be furthered by the requested disclosure.
Components shall consider any commercial interest of the requester (with reference
to the definition of “commercial use” in paragraph (b)(1) of this section), or of any
person on whose behalf the requester may be acting, that would be furthered by the
requested disclosure. Requesters shall be given an opportunity in the administrative
process to provide explanatory information regarding this consideration.

(ii) The primary interest in disclosure: Whether any identified commercial interest of
the requester is sufficiently large, in comparison with the public interest in disclosure,
that disclosure is “primarily in the commercial interest of the requester.” A fee waiver
or reduction is justified where the public interest standard is satisfied and that public
interest is greater in magnitude than that of any identified commercial interest in
disclosure. Components ordinarily shall presume that where a news media requester
has satisfied the public interest standard, the public interest will be the interest
primarily served by disclosure to that requester. Disclosure to data brokers or others
who merely compile and market government information for direct economic return
shall not be presumed to primarily serve the public interest.
(4) Where only some of the records to be released satisfy the requirements for a
waiver of fees, a waiver shall be granted for those records.
(5) Requests for the waiver or reduction of fees should address the factors listed in
paragraphs (k)(2) and (3) of this section, insofar as they apply to each request.
Components will exercise their discretion to consider the cost-effectiveness of their
investment of administrative resources in this decisionmaking process, however, in
deciding to grant waivers or reductions of fees.




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