Summary of a Recent
Judicial Development in
Administrative Law

FOIA Exemptions and Fee Waivers

Walt McCarter
National AgLaw Center Research Associate

Summary of Decision

In Stewart v. U.S. Department of the Interior, 554 F.3d 1236 (10th Cir. 2009), the Tenth Circuit Court of Appeals found that the district court had properly upheld the Bureau of Land Management's (BLM) denial of a Freedom of Information Act (FOIA) fee waiver because the production of the requested documents likely would not contribute to the public's understanding and because the request was unduly burdensome, but held that the district court had erred in ordering the BLM to produce certain documents authored by a paid government consultant because those documents were exempted from disclosure under FOIA Exception 5, 5 U.S.C. § 552(b)(5).

Background

Kane and Garfield Counties submitted FOIA requests seeking access to BLM and Department of the Interior records concerning the granting and retiring of grazing permits. Id. at 1239. The BLM concluded that production of the materials on backup tape e-mail records requested by the counties would cost $280,430, and advised the counties that it would not begin processing the request without a fee waiver. Id. at 1240. The counties requested a fee waiver pursuant to 5 U.S.C. § 552(a)(4)(A)(iii), which was denied on the grounds that copies of some of the e-mails had been previously provided and that any remaining e-mails on the backup tapes would not make a significant contribution to public understanding of government operations as required for a fee waiver under the statute. Id. In response to a subsequent request for records, the agencies withheld certain records pursuant to FOIA Exemptions 5 and 6. Id. The counties then petitioned the district court to order production of all requested documents. Id. at 1241. The court upheld the BLM's denial of the fee waiver, reasoning that the production of the additional documents likely would not contribute to the public's understanding and that the request was unduly burdensome, but held that the BLM erred in withholding certain records pursuant to FOIA Exemption 5, and both parties appealed. Id.

Arguments

The counties argued that the district court improperly upheld the BLM's denial of their fee waiver request; they argued that the court incorrectly found that the information from the backup tapes had already been provided to the counties, and that the court improperly relied on the "unduly burdensome" justification because the BLM had not relied on such justification in its denial, and also claimed that such a justification should be unavailable because "agency records must be maintained in such a manner as to be readily reproducible." Id. at 1242.

The defendants claimed that certain documents were exempt from disclosure pursuant to FOIA Exemption 5, 5 U.S.C. § 552(b)(5), which exempts "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than the agency in litigation with the agency." Id. at 1244.

Analysis and Holdings

FOIA fee waiver
The court noted that there was evidence that the BLM had already provided some of the requested information, and in light of the fact that the BLM would have had to search hundreds of backup tapes for information that may not have even existed, the court found that the evidence supported the district court's conclusion that "the costs and resources required were exorbitant in relation to the speculative nature of the whole endeavor." Id. at 1243. In sum, the court held that "the district court was correct in upholding the denial of the fee waiver because the underlying search would be unduly burdensome given the speculative nature of the records requested." Id.

FOIA exemptions
The court explained that to qualify under the § 552(b)(5) exemption, a document must be the product of a government agency and must "fall within the ambit of a privilege against discovery under judicial standards that would govern litigation against the agency that holds it." Id. at 1239. Relying on precedent, the district court had found that the author of the withheld documents, who was a paid consultant to the government, had "deep-seated views" and was not a disinterested expert, so his documents were not exempted from disclosure. Id. at 1244-45. However, the appellate court, noting that the expert had no personal or financial stake in the outcome, found no basis for a limitation on paid consultants that they must lack "deep-seated views" and reversed, concluding that his reports to the BLM had been properly withheld pursuant to Exemption 5. Id. at 1245.

The case was decided on February 2, 2009.