Summary of a Recent
Judicial Development in
Administrative Law

Fee Waivers for Production of Records Pursuant
to the Freedom of Information Act

Walt McCarter
National AgLaw Center Research Associate

Summary of Decision

In Natural Resources Defense Council, Inc. v. United States Environmental Protection Agency, 581 F. Supp. 2d 491, 2008 WL 3861328 (S.D.N.Y. 2008), the United States District Court for the Southern District of New York held that a non-profit environmental organization's request for records pursuant to the Freedom of Information Act was overly broad, so the organization was only entitled to a fee waiver for production of certain records which specifically related to the subject matter of the request.

Background

Natural Resources Defense Council, Inc. (NRDC), a non-profit environmental organization, requested certain records concerning pesticides from the Environmental Protection Agency (EPA) pursuant to the Freedom of Information Act (FOIA). Id. at *1. The EPA denied NRDC's request for a fee waiver, and after exhausting its administrative appeals, NRDC appealed to the district court. Id.

Arguments

NRDC argued that it was entitled to a fee waiver pursuant to 5 U.S.C. § 552(a)(4)(A)(iii), because the requested information would contribute "to public understanding of the legal basis, policy justifications, and public health implications of governmental agency risk assessments and potential regulatory action or inaction." Id. at *2.

The EPA argued that the material requested was not in the public interest because it was not likely to contribute significantly to public understanding of government operations or activities, and therefore NRDC was not entitled to a fee waiver. Id. at *6. The EPA also argued that NRDC's request was overly broad and encompassed potentially thousands of documents, many of which were routine and had nothing to do with EPA operations. Id.

Analysis and Holdings

A provision in FOIA, 5 U.S.C. § 552(a)(4)(A)(iii), provides for fee waivers for the information requested "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." Id. at *2. The EPA regulations for determining whether a requester is entitled to a fee waiver considered the following factors: (1) the subject of the request (whether it concerns governmental operations); (2) the informative value of the information to be disclosed (whether the disclosure is "likely to contribute" to an understanding of government operations or activities); (3) whether the contribution to an understanding of the subject by the public is likely to result from disclosure; and (4) the significance of the contribution to public understanding. Id. at *4. The court found that the public did have an interest in the subject matter of the requested records, and in how the government made policy decisions regarding that subject matter. Id. at *7. However, the court agreed that NRDC's FOIA request was far broader that its justification for a fee waiver, and ordered that NRDC be awarded a fee waiver only for the EPA's production of records specifically pertaining to the pesticide which was the subject of the request. Id. at *9.

The case was decided on August 19, 2008.