Opinion
No. C 01-4284 PJH.
March 27, 2003.
ORDER
The parties' cross motions for summary judgment came on for hearing on March 26, 2003 before this court, the Honorable Phyllis J. Hamilton presiding. Plaintiffs appeared through its counsel, Daniel Kensinger, and defendant appeared through their counsel, Abraham Simmons. Having read the papers and carefully considered the relevant legal authority, the court hereby rules as follows for the reasons stated at the hearing.
BACKGROUND
TPS is a commercial vendor of government solicitation information. It made a number of FOIA requests in 2000 for computer files from the Department of the Air Force, the Department of the Army, and the Department of the Navy, some of which were denied. TPS now claims the Air Force and Army are charging excessive fees for those requests, that the Army is improperly withholding four files under FOIA exemptions 2 and 3, and that the Navy's refusal to produce documents based on an outstanding bill is unfounded.
DISCUSSION
A. Summary Judgment
Summary judgment is appropriate when the evidence shows there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c);Anderson v. Liberty Lobby. Inc., 477 U.S. 242 (1986). As this court Indicated in its October 2, 2002 order, TPS's claims are all appropriately decided on summary judgment.
B. Army Requests
1. PADDS files
TPS requested from the Army nine files from the PADDS procurement computer system. FAC ¶ 33; TPS Clarifying Statement. The Army agreed to produce the PADDS files, on the condition that TPS agree to pay the estimated $14,775.00 fee. FAC Exh. J. TPS refused, on the grounds that the fees were excessive, and thus has not received those files. FAC ¶ 35; TPS Clarifying Statement.
Excessive fee claims under FOIA are appropriately decided at summary judgment. 5 U.S.C. § 552(a)(4)(A)(vii) (permitting de novo review of fee waiver requests, but "the court's review of the matter shall be limited to the record before the agency");McClellan Ecological Seepage Situation v. Carlucci, 835 F.2d 1282, 1284 (9th Cir. 1987).
TPS claimed at oral argument that it is not requesting a fee waiver, but merely contesting the excessive nature of the fees charged by defendants. As the court stated in its October 2, 2002 order, excessive fee issues are analyzed under the same standard as fee waiver cases. Order at 2, citing National Treasure Employers Union v. Griffin, 811 F.2d 644, 650 (D.C. Cir. 1987); Lybaraer v. Cardwell, 438 F. Supp. 1075, 1076 n. 1 (D. Mass. 1977), aff'd, 577 F.2d 764; Diapulse Corporation of Amer. v. FDA, 500 F.2d 75, 78 (2d Cir. 1974).
In order to prevail on its excessive fee claims, TPS must show that its request 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." 5 U.S.C. § 552(a)(4)(A)(iii); see also, e.g., Larson v. CIA, 843 F.2d 1481, 1482-83 (D.C. Cir. 1988).
Defendants appear to claim that TPS may have waived this argument because it failed to submit a fee waiver request. TPS does not request that fees be waived, only that the fees be calculated differently. Thus, no fee waiver request is required and TPS has properly preserved and exhausted this issue through the administrative appeals process.
At oral argument, TPS conceded that, since it sells the information it requests from the government to its clients, it is unable to show that its excessive fee claim was not primarily in its own commercial interest. Accordingly, summary Judgment in favor of the Army is properly granted on the excessive fee claims.
2. CCSS files
TPS also requested four files from the Army's CCSS procurement computer system. FAC ¶ 44; TPS Clarifying Statement. The Army denied this request, claiming that FOIA exemptions 2 (protecting Internal agency documents) and 3 (protecting material which may not be given to the public by statute) protected this information from disclosure. FAC ¶ 47. TPS claims those exemptions do not apply and that the documents should be produced. 1035, 1042 (9th Cir. 1999).
FQOIA "mandates a policy of broad disclosure of government documents." Marlcopa Audubon Soc. v. United States Forest Serv., 108 F.3d 1082, 1085 (9th Cir. 1997), quoting Church of Scientology v. Dept. of the Army, 611 F.2d 738, 741 (9th Cir. 1980). To invoke a FOIA exemption, the Army bears the burden of proving that the exemption applies to the withheld information. 5 U.S.C. § 552(a)(4)(B); see also Order Denying Trial at 5.
Under the public domain doctrine, an agency may not claim FOIA exemption for material already made generally available to the public. See. e.g., Cottone v. Reno, 193 F.3d 550, 554 (DC. Cir. 1999) (citations omitted); Starkey v, U.S. Dept. of the Interior, 238 F. Supp.2d 1188, 1193-94 (C.D. Cal. 2002). At oral argument, defendants admitted the documents requested by TPS may have already been released. Therefore, the Army must produce to TPS all material that has already been made generally available to the public.
Both the defendants and the court were in the dark about the specific requests at issue, as neither the requests nor the documents provided were included in the record on this issue.
TPS admits that its requested files contain some information properly withheld from FOIA production, and states that it will accept redacted versions of the information requested. January 2003 Snyder Decl. ¶ 17 (at 6:6). The Army thus may properly redact or withhold any information in the requested files that has not already been made publicly available from any production made to TPS.
C. Air Force Requests
TPS requested from the Air Force one file from the J041 procurement computer system, and four files from the J091 procurement computer system. First Amended Complaint ("FAC") ¶¶ 11, 25; see also TPS Clarifying Statement. After receiving the file from the J041 procurement computer, TPS made a second request for the same file. FAC ¶ 11. The Air Force granted all of TPS's requests, produced all documents to TPS, and billed TPS a total of $3450.00. TPS Clarifying Statement; FAC ¶ 12, 26. TPS now complains that the Air Force conducted inefficient searches for those files and that TPS was thus overbilled.
TPS claimed in its Nov. 27, 2002 Clarifying Statement that it had also requested files from the Air Force's ACPS computer system, which it had not received. TPS did not raise this claim in its complaint, and does not address it in its motion for summary judgment. Accordingly, the claim for the ACPS computer system files is waived.
Since TPS admits that it has all the files it requested from the Air Force, see TPS Clarifying Statement, the FOIA claim is moot. See. e.g., Carter v. Veterans Admin., 780 F.2d 1479, 1481 (9th Cir. 1986). Furthermore, to the extent that TPS's complaint is based on excessive fees charged by the Air Force, this claim fails for the same reason as the excessive fees claim against the Army. Summary judgment is granted in favor of the Air Force.
D. Navy Requests
TPS requested five files from the Navy's AAM/ILSMIS computer system. FAC ¶ 54; TPS Clarifying Statement. The Navy refused to produce these files until TPS paid $300 in past due invoices. FAC ¶ 55; Exh. Q. TPS admits that it received a letter explaining the nature of the $300 charge, but claims it is not required to pay the fee because the Navy has never produced an "invoice" for the fee.
The court reviews the Navy's bill calculations de novo. 5 U.S.C. § 552(a)(4)(A)(vii); see also Oct. 2 Order at 5. The Navy has demonstrated that TPS owes $300 to the Mare Island Naval Shipyard for the human resources time expended for FOIA searches conducted in 1995. FAC Exh. U; see also Wise Decl. ¶¶ 17, 18. The Navy has also shown that It conducted this FOIA search at TPS's request and with TPS's agreement to pay all applicable fees. Wise Decl. 1 3; see also, e.g., Wise Decl. Exh. Q ("The tact that you did not receive any records from the shipyard in response to your FOIA request does not negate your responsibility to pay for programming services provided to you in good faith, at your request with you[r] agreement to pay applicable fees.") (emphasis added).
The DoD regulations cited by TPS as requiring an "invoice" for services require only that the requesting party agree to pay for "special services" before they are performed, and that a detailed invoice of services be provided. Both of these requirements were met. See Wise Decl. ¶ 18; Exh. Q (explaining that work was done at TPS's request); FAC Exh. U (detailing work done and hourly rate of computer consultant).
Thus, not only may the Navy properly charge TPS for the $300 of services provided, but the Navy may also properly refuse to process any further FOIA requests from TPS until this, and all other outstanding bills, are paid. 32 C.F.R. § 701.45(f). Summary judgment in favor of the Navy is appropriate.
E. Attorneys' Fees
Finally, TPS has requested attorneys' fees. FOIA permits a fee award, in the court's discretion, for a party that has "substantially prevailed" on their claims. 5 U.S.C. § 552(a)(4)(E). Under the criteria set forth in Long v. IRS, 932 F.2d 1309, 1313 (9th Cir. 1991), attorneys' fees here are not warranted.
Summary judgment is thus GRANTED in favor of the Air Force and the Navy, and DENIED on those claims as to TPS. Summary judgment is GRANTED in favor of the Army and DENIED as to TPS concerning the PADDS files, and summary judgment is GRANTED in favor of TPS and DENIED as to the Army concerning the CCSS files. TPS's request for attorneys' fees is DENIED. This order fully adjudicates the matters listed at nos. 53, 55, 56, and 74 on the clerk's docket for this case, and all other pending matters. The clerk is ordered to close the file.