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Opening the Government

Tools for FOI Work


Letter Supporting Waiver of FOIA Search Fee

February 14, 2005

Ms. Marie A. O’Rourke

Assistant Director

United States Department of Justice

Executive Office for United States Attorneys

Suite 7300, Bicentennial Building

600 E St., N.W.

Washington, DC 20530

Fax No.: (202) 616-6757


Re: Request No. 05-45 (Filed on November 25, 2003 by People for the American Way Foundation)

The Coalition of Journalists for Open Government (“CJOG”) is an alliance of journalism-related organizations that came together out of concern over the increasing secrecy at all levels of government. We believe this diminishing access to public records and meetings, which prevents the citizenry from being fully informed, is detrimental to public policy and is a principal factor in the public’s growing distrust of and disengagement from government.

Together with the undersigned journalism organizations who are members of CJOG, we write to ask that in both the spirit and the letter of the Freedom of Information Act (“FOIA”) that the Department of Justice withdraw its demand that People For the American Way Foundation (“PFAWF”) pay $372,799.00 in advance records search fees and instead grant it a public interest waiver in response to its request for:

All records that reflect, relate or refer to any request by the government to seal the proceedings of a case in any federal court arising from or relating to the detention of a post 9/11 immigrant detainee, including, without limitation, redacted copies of any pleadings filed in support of a request to seal.

The PFAWF request clearly meets the requirements for a fee waiver set out in 5 U.S.C. § 552(a)(4)(A)(iii): The “disclosure of the information is in the public interest” and “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 requestor.” Dissemination of the information will provide the public with an improved understanding of one of the most controversial government actions in the past decade.

We believe Congress’ intended fee waivers to be applied liberally, consistent with its stated intent that FOIA be a law that favors disclosure, not secrecy. In assessing whether a request is in the public interest, the Department of Justice has previously stated (1987) that one must determine whether:

The request concerns the operations or activities of the government;

Disclosure is likely to contribute to an understanding of government operations and activities;

Disclosure of the requested information will contribute to public understanding;

Disclosure is likely to contribute “significantly” to public understanding;

The requestor has a commercial interest which would be furthered by the requested disclosure; and

If so, the magnitude of the identified commercial interest of the requestor is sufficiently large that disclosure is primarily in the commercial interest of the requestor.

More to the point, a waiver is merited when the disclosable contents of the records are in fact informative on the issue found by the agency to be of public interest.” Common Cause v. IRS, 646 F.2d 656 (D.C. Cir. 1981).

The request may also fall within the scope of such court decisions as National Treasury Employees Union v. Griffin, 811 F.2d 644, 649 (D.C. Cir. 1987) and National Security Archive v. Department of Defense, 880 F.2d 1381, 1387 (D.C. Cir. 1989) which would entitle PFAWF to consideration under 5 U.S.C. § 552(a)(4)(A)(ii)(II) as a representative of the news media in that it is an 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.” Moreover, whatever their ideological differences, we see little functional difference between PFAWF and Judicial Watch, which has been found to qualify for this type of fee reduction. Judicial Watch v. DOJ, 133 F. Supp.2d 52 (D.D.C. 2000)

We also believe PFAWF’s request is disclosable in its entirety. The organization has not requested any specific names or case identifiers. Rather, it seeks only to determine the breadth of the government’s attempts to seal particular court cases from public view and the basis for the requested closure. The request will assist PFAWF in demonstrating, through the use of an objective and easily-understood numerical quantifier, the degree to which traditional civil liberties are now being compromised by concerns about terrorism.

This request is not about terrorism itself, or the identity of terrorists or the methods used to combat terrorism. It is about government accountability, citizen participation in the decision-making process, the public’s First Amendment right of access to the courts and the Sixth Amendment right to a public trial. These are rights that may have been denied on a nationwide basis, with no explanation to the public. Indeed, 88 of 93 U.S. Attorneys Offices have said they hold undisclosed records that would be responsive to this request. If the PFAWF request is granted, the public will have that explanation.

The fee waiver and the reduction provisions of the 1974 amendment to FOIA were the direct result of widespread attempts by some government agencies to deter FOIA users by charging excessive search and duplication fees. H. Rep. No. 1419, 92d Cong., 2d Sess. 10 (1972). We hope that is not the case here and that Justice will waive the fees and expedite the request.

Our newly-appointed Attorney General, Alberto Gonzales, stated during his confirmation process that “open government is an important part of a free society…[I]f confirmed, I would undertake an examination of the Departments practices and policies concerning FOIA disclosure.”

This case provides the perfect opportunity for the Department of Justice to reset its FOIA policies and put them back on the right path as Mr. Gonzales begins his tenure as Attorney General. We urge that you rescind or reduce your demand for the payment of 2,799.00 by PFAWF and grant that organization’s request in full.


Coalition of Journalists for Open Government

American Society of Newspaper Editors

Associated Press Managing Editors

Association of Health Care Journalists

Education Writers Association

Committee of Concerned Journalists

Freedom of Information Center, University of Missouri

Ratio-Television News Directors Assocaition

Reporters Committee for Freedom of the Press

Society of Environmental Journalists

cc: The Honorable Alberto Gonzales, Attorney General of the United States