D.C. Circuit reverses longstanding – if illogical – policy of many agencies.

red tape-1The federal Freedom of Information Act (FOIA) and its state equivalents remain a useful tool for anyone wishing to keep an eye on our governments’ activities. FOIA requests have led to the exposure of waste, fraud and abuse in government programs. Such revelations, in turn, have effected change that has saved not only money but lives. Don’t believe me? Check out the “FOIA Files”, an amazing trove of stories – a searchable trove, at that – reflecting the power of the federal FOIA to benefit all of us. (FOIA Files was compiled by the Sunshine in Government Initiative. Full disclosure: two of my clients are among the nine members of SGI.)

But effecting change through FOIA has gotten harder and harder in the face of many impediments. These include not only the various exemptions, which provide justifications – some valid, some not so much – for withholding information, but also other, more “procedural”, impediments. For example, increasingly long wait times for even an initial response to an FOIA request, followed by equally long waits before the requested records are released or, frequently, withheld. Another example: the imposition of high “processing fees” which can deter a party from pursuing its request in full. (Some of these fees may become less of a problem now that both the House and Senate have passed S 337 – the FOIA Improvements Act of 2016 – and has been shipped over to the White House; we expect the President to sign it.)

These impediments have an especially negative impact on journalists, who may not have the time or money to fight an adverse decision. Journalists represent the third largest group of users of the federal FOIA, filing about 10% of all requests per year, despite the fact that they may not be able to wait for their request to be processed in the face of an impending deadline, or they may not even be able to pay the required processing fees. As to fees, though, the federal FOIA process does provide for partial exemption from fees for members of the news media.

And now, thanks to a decision from the U.S. Court of Appeals for the D.C. Circuit last month, it’s quite possible that similar fee exemptions will be available for even more requesters.

Like journalists, educational institutions are among the noncommercial requesters who are eligible for reduced fees. The recent case – Sack v. Department of Defense – addressed the issue of how the policy of reduced processing fees for educational institutions should be applied.

The federal FOIA fee structure works like this. Agencies are allowed to charge fees for: (1) the time spent searching for records; (2) the time spent reviewing records to determine if exemptions apply; and (3) the cost of copying or producing the records. Most requesters must pay all these fees. However, the federal FOIA provides that noncommercial requesters – including educational institutions and noncommercial scientific institutions – and representatives of the news media need pay only reasonable standard charges for document duplication (or the cost of putting the records in a thumb drive or CD), but no fees for search and review. (The Act also permits waiver of fees where disclosure of the information is determined to be in the public interest because it is (1) likely to contribute significantly to public understanding of the operations or activities of the government and (2) not primarily in the commercial interest of the requester.)

Kathryn Sack was a Ph.D. student at the University of Virginia when she filed FOIA requests with the Department of Defense (DOD) and other agencies. She stated in her requests that she intended to use the sought-after information as part of her doctoral dissertation. Because of that obviously educational consideration, she requested that the agencies treat her as an educational institution requester.

DOD refused to do so, assessing about $900 in search, review and copying fees for one request and additional fees for another search which turned up documents that DOD then withheld under one of the routine FOIA provisions. Sack sued, arguing both that (a) she is entitled to be classified as an educational institution requester for fee exemption purposes and (b) DOD improperly withheld the documents. The District Court ruled against her on both issues, a decision she appealed to the Court of Appeals. The appellate panel affirmed the lower court relative to whether the documents had been properly withheld, but reversed on the fee question. To my mind, the fee aspect of the case is by far the more significant.

The crux of Ms. Sack’s common sense argument is that a request made by a student to further his or her coursework or other school-sponsored activity is effectively a request made by the institution itself, and thus entitled to the fee exemption. The three-judge panel of the D.C. Circuit agreed.

As Judge Brett Kavanaugh (who authored the opinion) observed, DOD’s regulations don’t define which individuals within an educational institution are eligible for the “educational institution” exemption. But DOD does follow general guidance from the Office of Management and Budget (OMB) that calls for a demonstration that

the request [for exemption] is from an institution that is within the category, that the institution has a program of scholarly research, and that the documents sought are in furtherance of the institution’s program of scholarly research and not for a commercial use.

OMB’s guidelines also direct agencies presented with an exemption request to ensure that it is “apparent from the nature of the request that it serves a scholarly research goal of the institution, rather than an individual goal.”

Those OMB guidelines suggest at one point that students as well as faculty may qualify for the educational institution exemption. But then, elsewhere, they indicate that the exemption does not apply to student requests that are filed solely to further coursework goals because the student is carrying out an individual research goal, not an institutional one. As Judge Kavanaugh noted, this would appear to exclude Ms. Sack’s request.

But Kavanaugh decided that that approach is inconsistent with the purpose of FOIA. After all, the folks in an “educational institution” most likely to submit FOIA requests in pursuit of scholarly research are “obviously not the president, provost, or dean”, but rather the teachers and students at the school. So while the guidelines indicate that FOIA fees may be reduced under the “educational institutions” exemption can be granted to teachers but not students, that just doesn’t make sense. Students do research and file FOIA requests in pursuit of that research, just like teachers. Further, students (perhaps more than teachers) lack the resources to pay full processing fees:

It would be a strange reading of this broad and general statutory language – which draws no distinction between teachers and students – to exempt teachers from paying full FOIA fees but to force students with presumably fewer financial means to pay full freight.

Or, to put it another way:

The Guideline says that a geology teacher seeking information about soil erosion to support her research is entitled to reduced fees. But why not the geology student seeking the same information for the same reason? Crickets. We discern no meaningful distinction for purposes of this statute between the geology teacher and the geology student.

Pretty persuasive, even if I’d have used a biology teacher and student in my example, rather than a geology teacher and student, if I were making the “crickets” joke.

Kavanaugh did draw a line between, on the one hand, a student filing an FOIA request in connection with his or her role at the educational institution and, on the other, a student filing a request for his or her own personal or commercial use. The former would qualify for reduced fees; the latter would not. For that reason, an agency presented with a fee exemption request from a student can request proof that the student is indeed eligible for the exemption. Such proof could include a student ID, letter from a professor, copy of a syllabus, etc. However, he also warned that an agency should not impose so high a burden or require such specific proof that it turns away an otherwise deserving requester.

This decision is a clear win for student requesters. Its benefits may also extend beyond students. Other beneficiaries could include, for instance, scholastic/private sector partnerships making FOIA requests which clearly relate to the scholastic side of that partnership but which could also be useful to the private sector component as well.

Educational institutions – and those who work with such institutions, especially institutions offering communications or journalism programs – should welcome this ruling.