Foia request 5 U.S.C.

552 Foia requres the requested agency to waive or reduce fees if disclosure of the information is in the public interest because it is likely to contribute significantyly to public understanding of the operations or activities of the governmetn and is not primarily in the commercial interest of the requester. Documents to be made available Exemption application form 1023 Annual tax return Form 990 Short form 990-EZ 501(c)(3) organization form 990-T. Returns must be made available for a three year period beginning with the due date of the return (including any extension of time for filing). For this purpose, the return includes any schedules, attachments or supporting documents that relate to the imposition of tax on the unrelated business income of the charity. See Public Inspection and Disclosure of Form 990-T for more information http://www.irs.gov/Charities-&-Non-Profits/CharitableOrganizations/Public-Inspection-of-Attachments-to-a-501%28c%29%283%29Organization%27s-Form-990-T,-Exempt-Organization-Business-Income-TaxReturn

Public Inspection of Attachments to a 501(c)(3) Organization's Form 990-T, Exempt Organization Business Income Tax Return
This article explains which forms, schedules and supporting documents an organization exempt from tax under section 501(c)(3) of the Internal Revenue Code is not required to make available for public inspection when attached to a Form 990-T, Exempt Organization Business Income Tax Return. Code section 6104(d)(1)(A)(ii) requires section 501(c)(3) organizations to make available for public inspection any annual return which is filed under section 6011 and which relates to any tax imposed by section 511, relating to unrelated business income. The IRS issued Notice 200849, 2008-20 I.R.B. 979, to provide guidance with respect to the public inspection of Forms 990-T for 501(c)(3) organizations. Notice 2008-49 provides that the definition of an annual return includes an exact copy of Form 990-T filed with the IRS after August 17, 2006, and includes any schedules, attachments, and supporting documents that relate to the imposition of tax on unrelated business income. Notice 2008-49 also states that the IRS would provide further guidance regarding forms, schedules and supporting documents that, when attached to a section 501(c)(3) organizations Form 990-T, are not required to be made available for public inspection.

The following documents, when attached to a section 501(c)(3) organizations Form 990-T filed after August 17, 2006, are not required to be made available for public inspection:

Form 926, Return by a U.S. Transferor of Property to a Foreign Corporation Form 5471, Information Return of U.S. Persons With Respect to Certain Foreign Corporations Form 8271, Investor Reporting of Tax Shelter Registration Number [obsolete after 9/2007] Form 8594, Asset Acquisition Statement under Section 1060 Form 8621, Return by a Shareholder of a Passive Foreign Investment Company or Qualified Electing Fund Form 8832, Entity Classification Election Form 8858, Information Return of U.S. Persons With Respect to Foreign Disregarded Entities Form 8865, Return of U.S. Person with Respect to Certain Foreign Partnerships Form 8886, Reportable Transaction Disclosure Statement Form 8913, Credit for Federal Telephone Excise Tax Paid Form 8925, Report of Employer-Owned Life Insurance Contracts

This information will be modified by forms and instructions regarding schedules or attachments that are not required to be made available when attached to Form 990-T, or by published guidance.
4. What does the disclosure law require a tax-exempt organization to do? An exempt organization must provide a copy of covered tax documents to an individual who makes a written or in person request at the organiza-tions principal office. If the organization regularly maintains any regional or district offices having three or more employees, it must also respond to request submitted to any such office. Covered tax documents include, in general, the organizations application for tax-exempt status and its annual returns for a period of three years beginning on the date the return is required to be filed. If the request is made in person, it will generally be honored on the day of the request; if it is written, then the organization generally has 30 days to respond. (A request that is faxed, e-mailed or sent by private courier is considered a written request.) 13. If a request for copies of exempt organizations documents is not ful-filled, to whom may the requester complain? The complaint should be addressed to: IRS EO Classification Mail Code 4910 1100 Commerce Street Dallas, TX 75242 See Where Do I Send Complaints About Exempt Organizations for more information.

17. How can I obtain a copy of an organization's annual return or exemp-tion application? You have the right to inspect, and obtain a copy of, a tax-exempt organi-zation's: ials; and

in person at the organization's principal office, or its regional or district of-fices, during regular business hours. Unrelated business income tax re-turns filed by organizations exempt under Code section 501(c)(3) are also available. You may also request copies of such materials in writing. The organization may charge a reasonable fee to cover copying and mailing costs. Note: An organization that filed its application before July 15, 1987, is required to make the application available only if it had a copy of the application on July 15, 1987. See Notice 88-120 for details. You are entitled to inspect, or receive a copy of, any annual return for three years from the date the return was required to be filed (or, for an amended return, from the date it was filed). For more information, see our frequently asked questions on public disclosure, the final regulations or Disclosure Requirements. For exemption application materials, you are entitled to inspect, or receive a copy of, the organization's exemption application (Form 1023, 1024, or other document required to be filed), any papers filed in support of the ap-plication and any determination letter issued by the IRS with respect to the application. 18. What should I do if an exempt organization will not let me see its Form 990 or 990T returns or exemption application materials? Write to IRS EO Classification, Mail Code 4910, 1100 Commerce Street, Dallas, TX 75242. Your letter should provide the name and address of the organization that refuses to allow public inspection or provide copies of its documents, and request that the documents be made available for public inspection. You may use Form 13909 to supply this information. The Tax Exempt/Government Entities Division of the IRS will contact the organization and arrange a time during which the documents may be in-spected. If the organization fails to provide the documents at the agreed upon time, statutory penalties may be assessed.
5 U.S.C. Section 552. Public information; agency rules, opinions, orders, records, and proceedings (a) Each agency shall make available to the public information as follows: (1) Each agency shall separately state and currently publish in the Federal Register for the guidance of the public-(A) descriptions of its central and field organization and the established places at which, the employees (and in the case of a uniformed service, the members) from whom, and the methods whereby, the public may obtain information, make submittals or requests, or obtain decisions;

(B) statements of the general course and method by which its functions are channeled and determined, including the nature and requirements of all formal and informal procedures available; (C) rules of procedure, descriptions of forms available or the places at which forms may be obtained, and instructions as to the scope and contents of all papers, reports, or examinations; (D) substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the agency; and (E) each amendment, revision, or repeal of the foregoing. Except to the extent that a person has actual and timely notice of the terms thereof, a person may not in any manner be required to resort to, or be adversely affected by, a matter required to be published in the Federal Register and not so published. For the purpose of this paragraph, matter reasonably available to the class of persons affected thereby is deemed published in the Federal Register when incorporated by reference therein with the approval of the Director of the Federal Register. (2) Each agency, in accordance with published rules, shall make available for public inspection and copying-(A) final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases; (B) those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register; (C) administrative staff manuals and instructions to staff that affect a member of the public; (D) copies of all records, regardless of form or format, which have been released to any person under paragraph (3) and which, because of the nature of their subject matter, the agency determines have become or are likely to become the subject of subsequent requests for substantially the same records; and (E) a general index of the records referred to under subparagraph (D); unless the materials are promptly published and copies offered for sale. For records created on or after November 1, 1996, within one year after such date, each agency shall make such records available, including by computer telecommunications or, if computer telecommunications means have not been established by the agency, by other electronic means. To the extent required to prevent a clearly unwarranted invasion of personal privacy, an agency may delete identifying details when it makes available or publishes an opinion, statement of policy, interpretation, staff manual, instruction, or copies of records referred to in subparagraph (D). However, in each case the justification for the deletion shall be explained fully

in writing, and the extent of such deletion shall be indicated on the portion of the record which is made available or published, unless including that indication would harm an interest protected by the exemption in subsection (b) under which the deletion is made. If technically feasible, the extent of the deletion shall be indicated at the place in the record where the deletion was made. Each agency shall also maintain and make available for public inspection and copying current indexes providing identifying information for the public as to any matter issued, adopted, or promulgated after July 4, 1967, and required by this paragraph to be made available or published. Each agency shall promptly publish, quarterly or more frequently, and distribute (by sale or otherwise) copies of each index or supplements thereto unless it determines by order published in the Federal Register that the publication would be unnecessary and impracticable, in which case the agency shall nonetheless provide copies of such index on request at a cost not to exceed the direct cost of duplication. Each agency shall make the index referred to in subparagraph (E) available by computer telecommunications by December 31, 1999. A final order, opinion, statement of policy, interpretation, or staff manual or instruction that affects a member of the public may be relied on, used, or cited as precedent by an agency against a party other than an agency only if-(i) it has been indexed and either made available or published as provided by this paragraph; or (ii) the party has actual and timely notice of the terms thereof. (3)(A) Except with respect to the records made available under paragraphs (1) and (2) of this subsection, and except as provided in subparagraph (E), each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records promptly available to any person. (B) In making any record available to a person under this paragraph, an agency shall provide the record in any form or format requested by the person if the record is readily reproducible by the agency in that form or format. Each agency shall make reasonable efforts to maintain its records in forms or formats that are reproducible for purposes of this section. (C) In responding under this paragraph to a request for records, an agency shall make reasonable efforts to search for the records in electronic form or format, except when such efforts would significantly interfere with the operation of the agency's automated information system. (D) For purposes of this paragraph, the term search means to review, manually or by automated means, agency records for the purpose of locating those records which are responsive to a request. (E) An agency, or part of an agency, that is an element of the intelligence community (as that term is defined in section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4))) shall not make any record available under this paragraph to--

(i) any government entity, other than a State, territory, commonwealth, or district of the United States, or any subdivision thereof; or (ii) a representative of a government entity described in clause (i). (4)(A)(i) In order to carry out the provisions of this section, each agency shall promulgate regulations, pursuant to notice and receipt of public comment, specifying the schedule of fees applicable to the processing of requests under this section and establishing procedures and guidelines for determining when such fees should be waived or reduced. Such schedule shall conform to the guidelines which shall be promulgated, pursuant to notice and receipt of public comment, by the Director of the Office of Management and Budget and which shall provide for a uniform schedule of fees for all agencies. (ii) Such agency regulations shall provide that-(I) fees shall be limited to reasonable standard charges for document search, duplication, and review, when records are requested for commercial use; (II) fees shall be limited to reasonable standard charges for document duplication when records are not sought for commercial use and the request is made by an educational or noncommercial scientific institution, whose purpose is scholarly or scientific research; or a representative of the news media; and (III) for any request not described in (I) or (II), fees shall be limited to reasonable standard charges for document search and duplication. In this clause, the term a representative of the news media means any person or 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. In this clause, the term news means information that is about current events or that would be of current interest to the public. Examples of news-media entities are television or radio stations broadcasting to the public at large and publishers of periodicals (but only if such entities qualify as disseminators of news) who make their products available for purchase by or subscription by or free distribution to the general public. These examples are not all-inclusive. Moreover, as methods of news delivery evolve (for example, the adoption of the electronic dissemination of newspapers through telecommunications services), such alternative media shall be considered to be news-media entities. A freelance journalist shall be regarded as working for a news-media entity if the journalist can demonstrate a solid basis for expecting publication through that entity, whether or not the journalist is actually employed by the entity. A publication contract would present a solid basis for such an expectation; the Government may also consider the past publication record of the requester in making such a determination.

**(iii) Documents shall be furnished without any charge or at a charge reduced below the fees established under clause (ii) 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. (iv) Fee schedules shall provide for the recovery of only the direct costs of search, duplication, or review. Review costs shall include only the direct costs incurred during the initial examination of a document for the purposes of determining whether the documents must be disclosed under this section and for the purposes of withholding any portions exempt from disclosure under this section. Review costs may not include any costs incurred in resolving issues of law or policy that may be raised in the course of processing a request under this section. No fee may be charged by any agency under this section-(I) if the costs of routine collection and processing of the fee are likely to equal or exceed the amount of the fee; or (II) for any request described in clause (ii)(II) or (III) of this subparagraph for the first two hours of search time or for the first one hundred pages of duplication. (v) No agency may require advance payment of any fee unless the requester has previously failed to pay fees in a timely fashion, or the agency has determined that the fee will exceed $250. (vi) Nothing in this subparagraph shall supersede fees chargeable under a statute specifically providing for setting the level of fees for particular types of records. (vii) In any action by a requester regarding the waiver of fees under this section, the court shall determine the matter de novo: Provided, That the court's review of the matter shall be limited to the record before the agency. (viii) An agency shall not assess search fees (or in the case of a requester described under clause (ii)(II), duplication fees) under this subparagraph if the agency fails to comply with any time limit under paragraph (6), if no unusual or exceptional circumstances (as those terms are defined for purposes of paragraphs (6)(B) and (C), respectively) apply to the processing of the request. (B) On complaint, the district court of the United States in the district in which the complainant resides, or has his principal place of business, or in which the agency records are situated, or in the District of Columbia, has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant. In such a case the court shall determine the matter de novo, and may examine the contents of such agency records in camera to determine whether such records or any part thereof shall be withheld under any of the exemptions set forth in subsection (b) of this

section, and the burden is on the agency to sustain its action. In addition to any other matters to which a court accords substantial weight, a court shall accord substantial weight to an affidavit of an agency concerning the agency's determination as to technical feasibility under paragraph (2)(C) and subsection (b) and reproducibility under paragraph (3)(B). (C) Notwithstanding any other provision of law, the defendant shall serve an answer or otherwise plead to any complaint made under this subsection within thirty days after service upon the defendant of the pleading in which such complaint is made, unless the court otherwise directs for good cause shown. [(D) Repealed. Pub.L. 98-620, Title IV, 402(2), Nov. 8, 1984, 98 Stat. 3357] (E)(i) The court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed. (ii) For purposes of this subparagraph, a complainant has substantially prevailed if the complainant has obtained relief through either-(I) a judicial order, or an enforceable written agreement or consent decree; or (II) a voluntary or unilateral change in position by the agency, if the complainant's claim is not insubstantial. (F)(i) Whenever the court orders the production of any agency records improperly withheld from the complainant and assesses against the United States reasonable attorney fees and other litigation costs, and the court additionally issues a written finding that the circumstances surrounding the withholding raise questions whether agency personnel acted arbitrarily or capriciously with respect to the withholding, the Special Counsel shall promptly initiate a proceeding to determine whether disciplinary action is warranted against the officer or employee who was primarily responsible for the withholding. The Special Counsel, after investigation and consideration of the evidence submitted, shall submit his findings and recommendations to the administrative authority of the agency concerned and shall send copies of the findings and recommendations to the officer or employee or his representative. The administrative authority shall take the corrective action that the Special Counsel recommends. (ii) The Attorney General shall-(I) notify the Special Counsel of each civil action described under the first sentence of clause (i); and (II) annually submit a report to Congress on the number of such civil actions in the preceding year.

(iii) The Special Counsel shall annually submit a report to Congress on the actions taken by the Special Counsel under clause (i). (G) In the event of noncompliance with the order of the court, the district court may punish for contempt the responsible employee, and in the case of a uniformed service, the responsible member. (5) Each agency having more than one member shall maintain and make available for public inspection a record of the final votes of each member in every agency proceeding. (6)(A) Each agency, upon any request for records made under paragraph (1), (2), or (3) of this subsection, shall-(i) determine within 20 days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of any such request whether to comply with such request and shall immediately notify the person making such request of such determination and the reasons therefor, and of the right of such person to appeal to the head of the agency any adverse determination; and (ii) make a determination with respect to any appeal within twenty days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of such appeal. If on appeal the denial of the request for records is in whole or in part upheld, the agency shall notify the person making such request of the provisions for judicial review of that determination under paragraph (4) of this subsection. The 20-day period under clause (i) shall commence on the date on which the request is first received by the appropriate component of the agency, but in any event not later than ten days after the request is first received by any component of the agency that is designated in the agency's regulations under this section to receive requests under this section. The 20-day period shall not be tolled by the agency except-(I) that the agency may make one request to the requester for information and toll the 20-day period while it is awaiting such information that it has reasonably requested from the requester under this section; or (II) if necessary to clarify with the requester issues regarding fee assessment. In either case, the agency's receipt of the requester's response to the agency's request for information or clarification ends the tolling period. (B)(i) In unusual circumstances as specified in this subparagraph, the time limits prescribed in either clause (i) or clause (ii) of subparagraph (A) may be extended by written notice to the person making such request setting forth the unusual circumstances for such extension and the date on which a determination is expected to be dispatched. No such notice shall specify a date that would result in an extension for more than ten working days, except as provided in clause (ii) of this subparagraph.

(ii) With respect to a request for which a written notice under clause (i) extends the time limits prescribed under clause (i) of subparagraph (A), the agency shall notify the person making the request if the request cannot be processed within the time limit specified in that clause and shall provide the person an opportunity to limit the scope of the request so that it may be processed within that time limit or an opportunity to arrange with the agency an alternative time frame for processing the request or a modified request. To aid the requester, each agency shall make available its FOIA Public Liaison, who shall assist in the resolution of any disputes between the requester and the agency. Refusal by the person to reasonably modify the request or arrange such an alternative time frame shall be considered as a factor in determining whether exceptional circumstances exist for purposes of subparagraph (C). (iii) As used in this subparagraph, unusual circumstances means, but only to the extent reasonably necessary to the proper processing of the particular requests-(I) the need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request; (II) the need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request; or (III) the need for consultation, which shall be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request or among two or more components of the agency having substantial subject-matter interest therein. (iv) Each agency may promulgate regulations, pursuant to notice and receipt of public comment, providing for the aggregation of certain requests by the same requestor, or by a group of requestors acting in concert, if the agency reasonably believes that such requests actually constitute a single request, which would otherwise satisfy the unusual circumstances specified in this subparagraph, and the requests involve clearly related matters. Multiple requests involving unrelated matters shall not be aggregated. (C)(i) Any person making a request to any agency for records under paragraph (1), (2), or (3) of this subsection shall be deemed to have exhausted his administrative remedies with respect to such request if the agency fails to comply with the applicable time limit provisions of this paragraph. If the Government can show exceptional circumstances exist and that the agency is exercising due diligence in responding to the request, the court may retain jurisdiction and allow the agency additional time to complete its review of the records. Upon any determination by an agency to comply with a request for records, the records shall be made promptly available to such person making such request. Any notification of denial of any request for records under this subsection shall set forth the names and titles or positions of each person responsible for the denial of such request.

(ii) For purposes of this subparagraph, the term exceptional circumstances does not include a delay that results from a predictable agency workload of requests under this section, unless the agency demonstrates reasonable progress in reducing its backlog of pending requests. (iii) Refusal by a person to reasonably modify the scope of a request or arrange an alternative time frame for processing a request (or a modified request) under clause (ii) after being given an opportunity to do so by the agency to whom the person made the request shall be considered as a factor in determining whether exceptional circumstances exist for purposes of this subparagraph. (D)(i) Each agency may promulgate regulations, pursuant to notice and receipt of public comment, providing for multitrack processing of requests for records based on the amount of work or time (or both) involved in processing requests. (ii) Regulations under this subparagraph may provide a person making a request that does not qualify for the fastest multitrack processing an opportunity to limit the scope of the request in order to qualify for faster processing. (iii) This subparagraph shall not be considered to affect the requirement under subparagraph (C) to exercise due diligence. (E)(i) Each agency shall promulgate regulations, pursuant to notice and receipt of public comment, providing for expedited processing of requests for records-(I) in cases in which the person requesting the records demonstrates a compelling need; and (II) in other cases determined by the agency. (ii) Notwithstanding clause (i), regulations under this subparagraph must ensure-(I) that a determination of whether to provide expedited processing shall be made, and notice of the determination shall be provided to the person making the request, within 10 days after the date of the request; and (II) expeditious consideration of administrative appeals of such determinations of whether to provide expedited processing. (iii) An agency shall process as soon as practicable any request for records to which the agency has granted expedited processing under this subparagraph. Agency action to deny or affirm denial of a request for expedited processing pursuant to this subparagraph, and failure by an agency to respond in a timely manner to such a request shall be subject to

judicial review under paragraph (4), except that the judicial review shall be based on the record before the agency at the time of the determination. (iv) A district court of the United States shall not have jurisdiction to review an agency denial of expedited processing of a request for records after the agency has provided a complete response to the request. (v) For purposes of this subparagraph, the term compelling need means-**(I) that a failure to obtain requested records on an expedited basis under this paragraph could reasonably be expected to pose an imminent threat to the life or physical safety of an individual; or (II) with respect to a request made by a person primarily engaged in disseminating information, urgency to inform the public concerning actual or alleged Federal Government activity. (vi) A demonstration of a compelling need by a person making a request for expedited processing shall be made by a statement certified by such person to be true and correct to the best of such person's knowledge and belief. (F) In denying a request for records, in whole or in part, an agency shall make a reasonable effort to estimate the volume of any requested matter the provision of which is denied, and shall provide any such estimate to the person making the request, unless providing such estimate would harm an interest protected by the exemption in subsection (b) pursuant to which the denial is made. (7) Each agency shall-(A) establish a system to assign an individualized tracking number for each request received that will take longer than ten days to process and provide to each person making a request the tracking number assigned to the request; and (B) establish a telephone line or Internet service that provides information about the status of a request to the person making the request using the assigned tracking number, including-(i) the date on which the agency originally received the request; and (ii) an estimated date on which the agency will complete action on the request. **(b) This section does not apply to matters that are-(1) (A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order;

(2) related solely to the internal personnel rules and practices of an agency; (3) specifically exempted from disclosure by statute (other than section 552b of this title), if that statute-(A)(i) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or (ii) establishes particular criteria for withholding or refers to particular types of matters to be withheld; and (B) if enacted after the date of enactment of the OPEN FOIA Act of 2009, specifically cites to this paragraph. (4) trade secrets and commercial or financial information obtained from a person and privileged or confidential; (5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency; (6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy; (7) records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source, (E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or (F) could reasonably be expected to endanger the life or physical safety of any individual; (8) contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; or (9) geological and geophysical information and data, including maps, concerning wells.

Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection. The amount of information deleted, and the exemption under which the deletion is made, shall be indicated on the released portion of the record, unless including that indication would harm an interest protected by the exemption in this subsection under which the deletion is made. If technically feasible, the amount of the information deleted, and the exemption under which the deletion is made, shall be indicated at the place in the record where such deletion is made. (c)(1) Whenever a request is made which involves access to records described in subsection (b)(7)(A) and-(A) the investigation or proceeding involves a possible violation of criminal law; and (B) there is reason to believe that (i) the subject of the investigation or proceeding is not aware of its pendency, and (ii) disclosure of the existence of the records could reasonably be expected to interfere with enforcement proceedings, the agency may, during only such time as that circumstance continues, treat the records as not subject to the requirements of this section. (2) Whenever informant records maintained by a criminal law enforcement agency under an informant's name or personal identifier are requested by a third party according to the informant's name or personal identifier, the agency may treat the records as not subject to the requirements of this section unless the informant's status as an informant has been officially confirmed. (3) Whenever a request is made which involves access to records maintained by the Federal Bureau of Investigation pertaining to foreign intelligence or counterintelligence, or international terrorism, and the existence of the records is classified information as provided in subsection (b)(1), the Bureau may, as long as the existence of the records remains classified information, treat the records as not subject to the requirements of this section. (d) This section does not authorize withholding of information or limit the availability of records to the public, except as specifically stated in this section. This section is not authority to withhold information from Congress. (e)(1) On or before February 1 of each year, each agency shall submit to the Attorney General of the United States a report which shall cover the preceding fiscal year and which shall include-(A) the number of determinations made by the agency not to comply with requests for records made to such agency under subsection (a) and the reasons for each such determination;

(B)(i) the number of appeals made by persons under subsection (a)(6), the result of such appeals, and the reason for the action upon each appeal that results in a denial of information; and (ii) a complete list of all statutes that the agency relies upon to authorize the agency to withhold information under subsection (b)(3), the number of occasions on which each statute was relied upon, a description of whether a court has upheld the decision of the agency to withhold information under each such statute, and a concise description of the scope of any information withheld; (C) the number of requests for records pending before the agency as of September 30 of the preceding year, and the median and average number of days that such requests had been pending before the agency as of that date; (D) the number of requests for records received by the agency and the number of requests which the agency processed; (E) the median number of days taken by the agency to process different types of requests, based on the date on which the requests were received by the agency; (F) the average number of days for the agency to respond to a request beginning on the date on which the request was received by the agency, the median number of days for the agency to respond to such requests, and the range in number of days for the agency to respond to such requests; (G) based on the number of business days that have elapsed since each request was originally received by the agency-(i) the number of requests for records to which the agency has responded with a determination within a period up to and including 20 days, and in 20-day increments up to and including 200 days; (ii) the number of requests for records to which the agency has responded with a determination within a period greater than 200 days and less than 301 days; (iii) the number of requests for records to which the agency has responded with a determination within a period greater than 300 days and less than 401 days; and (iv) the number of requests for records to which the agency has responded with a determination within a period greater than 400 days; (H) the average number of days for the agency to provide the granted information beginning on the date on which the request was originally filed, the median number of days for the agency to provide the granted information, and the range in number of days for the agency to provide the granted information;

(I) the median and average number of days for the agency to respond to administrative appeals based on the date on which the appeals originally were received by the agency, the highest number of business days taken by the agency to respond to an administrative appeal, and the lowest number of business days taken by the agency to respond to an administrative appeal; (J) data on the 10 active requests with the earliest filing dates pending at each agency, including the amount of time that has elapsed since each request was originally received by the agency; (K) data on the 10 active administrative appeals with the earliest filing dates pending before the agency as of September 30 of the preceding year, including the number of business days that have elapsed since the requests were originally received by the agency; (L) the number of expedited review requests that are granted and denied, the average and median number of days for adjudicating expedited review requests, and the number adjudicated within the required 10 days; (M) the number of fee waiver requests that are granted and denied, and the average and median number of days for adjudicating fee waiver determinations; (N) the total amount of fees collected by the agency for processing requests; and (O) the number of full-time staff of the agency devoted to processing requests for records under this section, and the total amount expended by the agency for processing such requests. (2) Information in each report submitted under paragraph (1) shall be expressed in terms of each principal component of the agency and for the agency overall. (3) Each agency shall make each such report available to the public including by computer telecommunications, or if computer telecommunications means have not been established by the agency, by other electronic means. In addition, each agency shall make the raw statistical data used in its reports available electronically to the public upon request. (4) The Attorney General of the United States shall make each report which has been made available by electronic means available at a single electronic access point. The Attorney General of the United States shall notify the Chairman and ranking minority member of the Committee on Government Reform and Oversight of the House of Representatives and the Chairman and ranking minority member of the Committees on Governmental Affairs and the Judiciary of the Senate, no later than April 1 of the year in which each such report is issued, that such reports are available by electronic means.

(5) The Attorney General of the United States, in consultation with the Director of the Office of Management and Budget, shall develop reporting and performance guidelines in connection with reports required by this subsection by October 1, 1997, and may establish additional requirements for such reports as the Attorney General determines may be useful. (6) The Attorney General of the United States shall submit an annual report on or before April 1 of each calendar year which shall include for the prior calendar year a listing of the number of cases arising under this section, the exemption involved in each case, the disposition of such case, and the cost, fees, and penalties assessed under subparagraphs (E), (F), and (G) of subsection (a)(4). Such report shall also include a description of the efforts undertaken by the Department of Justice to encourage agency compliance with this section. (f) For purposes of this section, the term-(1) agency as defined in section 551(1) of this title includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency; and (2) record and any other term used in this section in reference to information includes-(A) any information that would be an agency record subject to the requirements of this section when maintained by an agency in any format, including an electronic format; and (B) any information described under subparagraph (A) that is maintained for an agency by an entity under Government contract, for the purposes of records management. (g) The head of each agency shall prepare and make publicly available upon request, reference material or a guide for requesting records or information from the agency, subject to the exemptions in subsection (b), including-(1) an index of all major information systems of the agency; (2) a description of major information and record locator systems maintained by the agency; and (3) a handbook for obtaining various types and categories of public information from the agency pursuant to chapter 35 of title 44, and under this section. (h)(1) There is established the Office of Government Information Services within the National Archives and Records Administration. (2) The Office of Government Information Services shall--

(A) review policies and procedures of administrative agencies under this section; (B) review compliance with this section by administrative agencies; and (C) recommend policy changes to Congress and the President to improve the administration of this section. (3) The Office of Government Information Services shall offer mediation services to resolve disputes between persons making requests under this section and administrative agencies as a non-exclusive alternative to litigation and, at the discretion of the Office, may issue advisory opinions if mediation has not resolved the dispute. (i) The Government Accountability Office shall conduct audits of administrative agencies on the implementation of this section and issue reports detailing the results of such audits. (j) Each agency shall designate a Chief FOIA Officer who shall be a senior official of such agency (at the Assistant Secretary or equivalent level). (k) The Chief FOIA Officer of each agency shall, subject to the authority of the head of the agency-(1) have agency-wide responsibility for efficient and appropriate compliance with this section; (2) monitor implementation of this section throughout the agency and keep the head of the agency, the chief legal officer of the agency, and the Attorney General appropriately informed of the agency's performance in implementing this section; (3) recommend to the head of the agency such adjustments to agency practices, policies, personnel, and funding as may be necessary to improve its implementation of this section; (4) review and report to the Attorney General, through the head of the agency, at such times and in such formats as the Attorney General may direct, on the agency's performance in implementing this section; (5) facilitate public understanding of the purposes of the statutory exemptions of this section by including concise descriptions of the exemptions in both the agency's handbook issued under subsection (g), and the agency's annual report on this section, and by providing an overview, where appropriate, of certain general categories of agency records to which those exemptions apply; and (6) designate one or more FOIA Public Liaisons. (l) FOIA Public Liaisons shall report to the agency Chief FOIA Officer and shall serve as supervisory officials to whom a requester under this

section can raise concerns about the service the requester has received from the FOIA Requester Center, following an initial response from the FOIA Requester Center Staff. FOIA Public Liaisons shall be responsible for assisting in reducing delays, increasing transparency and understanding of the status of requests, and assisting in the resolution of disputes.

198. ---- Public interest, fees

**Contribute to public understanding criterion for Freedom of Information Act (FOIA) fee waiver was met, in nonprofit organization's request to Bureau of Land Management (BLM) seeking information as to lenders' use of ranchers' BLM grazing permits as collateral for loans to ranchers; use of public funds to facilitate collateralization of grazing permits on public land, and understanding of how BLM made policy decisions including influence of any outside groups on facilitation process, was important to public's understanding of BLM. Forest Guardians v. U.S. Dept. of Interior, C.A.10 (N.M.) 2005, 416 F.3d 1173. Records 68 **Non-profit organization's Freedom of Information Act (FOIA) request in letter to Internal Revenue Service (IRS) demonstrated with reasonable specificity that disclosure of information sought would serve public interest, as required for FOIA fee waiver; request sought conflict-ofinterest waiver executed by the Deputy Treasury Secretary for Commissioner of the IRS, Commissioner's relationship with private company doing business with IRS, and IRS decisions involving the company, listed nine ways in which organization communicated collected information to public, and, although based on magazine article about the waiver, sought other information not available to general public. Judicial Watch, Inc. v. Rossotti, C.A.D.C.2003, 326 F.3d 1309, 356 U.S.App.D.C. 54. Records 62 **Requester of information under Freedom of Information Act seeking fee waiver must not have commercial interest in disclosure of information sought and must show that disclosure of information would be likely to contribute significantly to public understanding of government operations or activities. Larson v. C.I.A., C.A.D.C.1988, 843 F.2d 1481, 269 U.S.App.D.C. 153. Records 68 **Private interest group seeking to discover information about water pollution at United States Air Force base was not entitled to complete waiver of fees under the Freedom of Information Act, notwithstanding group's conclusory allegations that disclosure would be in public interest; 25% reduction of fees was all that was appropriate, given evidence that group may have filed request solely to aid in prosecution of private tort claims. McClellan Ecological Seepage Situation v. Carlucci, C.A.9 (Cal.) 1987, 835 F.2d 1282. Records 68 **Public understanding of Federal Bureau of Investigation (FBI) activities relating to very high profile informant would have been improved by disclosure of documents on informant as requested by citizen under Freedom of Information Act (FOIA), as required for waiver of fees, where, among

other things, informant had led stunning double life as a hit man for the Colombo crime family and a top echelon informant for the [FBI], as described by newspaper article, and FBI handler of informant had been prosecuted for murders committed by informant. Clemente v. F.B.I., D.D.C.2010, 741 F.Supp.2d 64. Records 68 **Watchdog group's Freedom of Information Act (FOIA) request for production of documents related to communications between Department of Education and commercial educational publishers regarding publishers' involvement in Department's administration of reading research initiative of the No Child Left Behind Act would significantly contribute to public's understanding of Department's operation of initiative, as required for group to be entitled to waiver of fees for production of documents in the public interest; group described the role of commercial publishers in the Department's operation of initiative that the group **intended to research, analyze and disseminate to the public, and the documents that group planned to make publicly available, coupled with its analysis thereof, would allow public to make a more informed assessment of ethical propriety and wisdom of the actions of the Department officials who administered initiative. Citizens for Responsibility and Ethics in Washington v. U.S. Dept. of Educ., D.D.C.2009, 593 F.Supp.2d 261. Records 68 **Non-profit animal advocacy organization was entitled to waiver of fees in connection with its request for National Institutes of Health (NIH) documents relating to government-owned and contractor-operated chimpanzee research facility, even if some requested information was already available to public upon request; records related to NIH's operation of facility and its activities relating to chimpanzees' maintenance and care, documents **would help public understand degree to which NIH was fulfilling its duties under Animal Welfare Act, **organization intended to disseminate requested information to public though its web sites, alerts, newsletters, and its network of other national and international media contacts, and contribution of requested documents to public's understanding of NIH's operations or activities was likely to be significant. In Defense of Animals v. National Institutes of Health, D.D.C.2008, 543 F.Supp.2d 83. Records 68 Fee waiver under public interest exception was warranted with respect to request, pursuant to Freedom of Information Act (FOIA), for Federal Emergency Management Agency (FEMA) documents relating to deliberations of an interagency task force on national energy policy; requester explained how it would publicize information obtained, specified it was seeking FEMA's communications with and involvement in the deliberations, explained that requested documents would contribute to public understanding of the substance of deliberations and the development of energy policy, and stated that information would contribute to public understanding because the documents were not already available. Judicial Watch, Inc. v. U.S. Dept. of Energy, D.D.C.2004, 310 F.Supp.2d 271, reconsideration denied , stay granted 319 F.Supp.2d 32, affirmed in part, reversed in part and remanded 412 F.3d 125, 366 U.S.App.D.C. 343. Records 68 **In seeking fee waiver from Department of Justice (DOJ) for its broad Freedom of Information Act (FOIA) request concerning United States senator

and particular bank, requester's general assertion that it sought information concerning the operations and activities of the government failed to satisfy public-interest prong of fee waiver test; statement did not specify link between information requested and public interest. Judicial Watch, Inc. v. U.S. Dept. of Justice, D.D.C.2000, 122 F.Supp.2d 13. Records 15 **Former Resolution Trust Corporation (RTC) employees' appeal letter, informing RTC that further information about RTC legal division's attempt to streamline its operations was inherent to better understanding of RTC's activities, **asserting that they had clear intent to disseminate information sought, and discussing media attention given to former employees' testimony about RTC waste, was sufficient to meet requirements for Freedom of Information Act (FOIA) fee waiver that requesters provide information that addresses whether subject of request concerns operations or activities of government, disclosures be likely to contribute to understanding of government operations or activities, disclosure would contribute to public understanding, and disclosure be likely to contribute significantly to public understanding of government operations or activities. Pederson v. Resolution Trust Corp., D.Colo.1994, 847 F.Supp. 851. Records 68 **In respect to this section, Congress intended that the public interest standard be liberally construed and that fees for document search and duplication not be used as an obstacle to disclosure of requested information. Eudey v. Central Intelligence Agency, D.C.D.C.1979, 478 F.Supp. 1175. Records 62 Considerations relating to the public interest did not preclude the United States from intervening as a defendant in a suit under this section for the primary purpose of filing a counterclaim which the named defendant lacked statutory authority to pursue where the United States claimed that plaintiff, a former Central Intelligence Agency agent, had demonstrated complete disregard for his contract obligations with the government and was pursuing the action so that he could further flout his asserted obligations under an agreement which restricted his right to publish certain information relating to the Agency. Agee v. Central Intelligence Agency, D.C.D.C.1980, 87 F.R.D. 350. Records 62 245. Expedited procedure Granting of expedited motion for release of responsive records and Vaughn index was warranted with respect to request, under Freedom of Information Act (FOIA), for records related to composition, activities, and operation of energy task force chaired by Vice-President when Department of Energy did little of substance for approximately six months after making virtually meaningless release of form letters in response to request, requester was not only party seeking disclosure of information at issue, material sought was of extraordinary public interest, and timetable proposed by Department could result in disclosure of relevant documents after need for them in formulation of national energy policy was overtaken by events. Natural Resources Defense Council v. Department of Energy, D.D.C.2002, 191 F.Supp.2d 41. Records 62

260. ---- Failure to take administrative appeal, exhaustion of remedies **Federal prisoner failed to exhaust administrative remedies, as required for his claim that Department of Justice (DOJ) violated Freedom of Information Act (FOIA) by not releasing documents relating to his criminal proceedings, where prisoner had not agreed without multiple conditions and district court order to pay search fees, had not administratively appealed DOJ's decision to aggregate his document requests, and had never applied for let alone administratively appealed adverse decision regarding public interest waiver of search and processing fees. Jones v. U.S. Dep't of Justice, D.D.C.2009, 653 F.Supp.2d 46. Records 63; Records 68 6. Balancing of interests **Freedom of Information Act request could not be categorically denied on privacy grounds under either Exemption 7(C) or Exemption 6 (5 USCS 552(b)(6) and (b)(C)(7)) because balancing of privacy interests of thirdparty, congressman, against public interest in releasing requested documents tipped strongly in favor of public interest; congressman's private interest was minimal, albeit not de minimis, given that Department of Justice's investigation was not secret and that he had publicly discussed his involvement, but above all, because release of information would have contributed significantly to public understanding of operations or activities of government, public interest in releasing this information was very strong. Citizens for Responsibility & Ethics v United States DOJ (2012, DC Dist Col) 840 F Supp 2d 226. **Public had clear interest in documents concerning Department of Justice's handling of investigation of Congressman because such records could contribute significantly to public understanding of operations or activities of government, pursuant to 5 USCS 552(a)(4)(A)(iii). Citizens for Responsibility & Ethics in Wash. v United States DOJ (2012, DC Dist Col) 846 F Supp 2d 63. Lexis annotated 2.Waiver or Reduction of Fees Plaintiff's request demonstrated with reasonable specificity that disclosure was in public interest and not for commercial interest of plaintiff, 5 USCS 552(a)(4)(A)(iii), so plaintiff was entitled to fee waiver. Ctr. for Medicare Advocacy, Inc. v United States HHS (2008, DC Dist Col) 577 F Supp 2d 221. Where plaintiff nonprofit institute had stated in reasonably detailed and non-conclusory terms exactly how and to whom it would disseminate information requested under Freedom of Information Act (FOIA) from defendant Department of Interior, fee waiver request under 5 USCS 552(a)(4)(A)(iii) was ordered; institute was not required to show how it used prior FOIA responses. Edmonds Inst. v United States DOI (2006, DC Dist Col) 460 F Supp 2d 63.

**In Freedom of Information Act (FOIA) case, advocacy group's motion for partial summary judgment was granted because, in its request for documents from U.S. Department of Health and Human Services, it fulfilled its burdens under 45 C.F.R. 5.45(b)(1)-(4) and had shown that it was entitled to its requested FOIA public interest fee waiver; among other things; (1) group stated with reasonable specificity that its request pertained to operations of government; (2) group had adequately demonstrated its intent and capacity to disseminate information gained through its request to reasonably broad segment of interested persons; and (3) group's statement comparing its treatment of issues with media accounts served to demonstrate how its request fulfilled 45 C.F.R. 5.45(b)(4). Citizens for Responsibility & Ethics v United States HHS (2006, DC Dist Col) 481 F Supp 2d 99. **Plaintiff citizens group had satisfied its burden for its fee waiver request under 5 USCS 552(a)(4)(A)(iii) against defendant United States Department of Education because it had specifically described identifiable subject--role of commercial publishers in certain educational initiatives-it intended to research, analyze, and disseminate to public. Citizens for Responsibility & Ethics in Wash. v United States Dep't of Educ. (2009, DC Dist Col) 593 F Supp 2d 261. 237. Public interest groups or organizations Public interest group, as well as individuals, must satisfy two-part test for establishing if disclosure requires agency to waive or reduce search and copying fees: i.e., that disclosure **must be likely to contribute significantly to public understanding of operations or activities of government and **must not be primarily in commercial interest of requester; claims for damages do not constitute commercial interest, at least when claims are grounded in tort but requirement that disclosure of information be likely to contribute significantly to public understanding of operations or activities of government is not satisfied by mere conclusory statement that information may be used in litigation to insure that agencies comply with federal law and that information ultimately will be donated to public institution; legislative history and agency regulations imply that agency may seek additional information when evaluating requester's justification for waiver and agency may require more detail from some requesters than from others; where requesters make only modest showing as to significant contribution to public understanding, they do not deserve complete waiver of fees, partial waiver being appropriate. McClellan Ecological Seepage Situation v Carlucci (1987, CA9 Cal) 835 F2d 1282. **Animal rights group's submission fulfilled requirements under fee waiver statute where (i) group described specific statutory mandate that allegedly had not been satisfied by Interagency Coordinating Committee on Validation of Alternative Methods (ICCVAM) and explained how and why information it requested would shed light on alleged lack of progress, that is, by supposedly revealing that ICCVAM had selected representatives who did not fully endorse ICCVAM's goals, (ii) group's description of specific problem, composition of ICCVAM's membership, and its impact on ICCVAM's ability to fulfill specific statutory mandate to "reduce, refine,

or replace use of animals in testing" satisfied "reasonably specific" standard, which was all that Freedom of Information Act required, and (iii) group sufficiently demonstrated its ability to disseminate requested information among public. Physicians Comm. for Responsible Med. v HHS (2007, DC Dist Col) 480 F Supp 2d 119. **Public interest organization was entitled to fee waiver under 5 USCS 552(a)(4)(A)(iii) because its request for documents relating to Department of Justice's racketeering litigation against tobacco industry had both informative value and public significance, thus meeting public-interest requirements necessary for fee waiver. Citizens for Responsibility & Ethics in Wash. v United States DOJ (2009, DC Dist Col) 602 F Supp 2d 121. 238. Scholarly or scientific research **Plaintiff conducting scholarly research into work of United States House Select Committee on Assassinations, requesting correspondence or records of communications between committee and Federal Bureau of Investigation relating to committee's investigation into Kennedy assassination, is entitled to waiver of search fees and copying costs under 5 USCS 552, where FBI failed to respond to plaintiff's requests for fee waiver within time limits specified in 552(a)(6)(A), (C) and subsequent denial of fee waiver was arbitrary and capricious, in view of clear public benefit demonstrated by plaintiff. Allen v FBI (1982, DC Dist Col) 551 F Supp 694. 241. Miscellaneous **Organization's Freedom of Information Act (FOIA), 5 USCS 552, fee waiver requests to Internal Revenue Service (IRS) and Department of Treasury concerning organization's requests for information about conflict of interest for former IRS commissioner specifically identified operations or activities to which request pertained, contributed to public's understanding of agencies' operations, and explained, in detailed and nonconclusory terms, exactly how and to whom organization planned to disseminate information it received; therefore district court's grant of summary judgment to IRS and district court's dismissal of organization's complaint against Department of Treasury were both reversed. Judicial Watch, Inc. v Rossotti (2003, App DC) 356 US App DC 54, 326 F3d 1309, 2003-1 USTC P 50433, 91 AFTR 2d 2125. 54. Hronek v. Drug Enforcement Agency
United States District Court, D. Oregon. August 20, 1998 16 F.Supp.2d 1260 1998 WL 554284 CIV. 97-1146-JO

Individual sued the Drug Enforcement Administration (DEA) and the United States Attorneys Office under the Freedom of Information Act (FOIA), alleging that these agencies were wrongfully withholding certain records and information in response to his FOIA request. On cross-motions for summary judgment, the District Court, Robert E. Jones, J., held...
...Second, the only relevant public interest in disclosure to be weighed in this balance is the extent to which disclosure would serve the core purpose of the FOIA, which is contributi[ing] significantly to public understanding of the operations or activities of the government. ... ... Exemption 5 is to be applied as narrowly as consistent with efficient Government operation, in light of the strong policy of the FOIA that the public is entitled to know what its government is doing and why. Maricopa II, 108

F.3d at 1093 (internal quotations and citations omitted).... ...[19]In Wiener, the Ninth Circuit clarified that there is no presumption that privacy interests normally outweigh the public interest; instead, [t]he privacy interests of third persons ***, the public interest in disclosure, and a proper balancing of the two, will vary depending upon the content of the information and the nature of the attending circumstances. ... ...Government bears the burden of establishing that privacy interests outweigh the publics interest in disclosure so as to trigger the Freedom of Information Acts (FOIAs) disclosure exemption for law enf orcement information that could invade personal privacy. 5 U.S.C.A. 552(b)(7)(C)....

Hronek v. Drug Enforcement Agency, 16 F.Supp.2d 1260, 1273, (D.Or., Aug 20, 1998)
[19] In Wiener, the Ninth Circuit clarified that there is no presumption that privacy interests normally outweigh the public interest; instead, [t]he privacy interests of third persons * * *, the public interest in disclosure, and a proper balancing of the two, will vary depending upon the content of the information and the nature of the attending circumstances. Wiener, 943 F.2d at 985. Thus, the agency must initially allege a privacy interest of the sort Congress intended section 552(b)(7)(C) to protect. Schiffer, 78 F.3d at 1410. The privacy interest need not rise to the level of constitutionally protected interests. Schiffer, 78 F.3d at 1410 (citing *1274 United States Dep't of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 762 n. 13, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989)). In Reporters Committee, the Supreme Court suggested that the privacy interest implicated by section 552(b)(7)(C) is a person's interest in avoiding disclosure of personal matters that are not freely available to the public. 489 U.S. at 762, 109 S.Ct. 1468. In contrast, **the sole cognizable public interest for FOIA is the interest to open agency action to the light of public scrutiny, to inform the citizenry about what their government is up to. Rosenfeld v. U.S. Dept. of Justice, 57 F.3d 803, 811 (9th Cir.1995)(quoting Reporters Committee, 489 U.S. at 772, 773, 109 S.Ct. 1468). 55. Yonemoto v. Department of Veterans Affairs
United States Court of Appeals, Ninth Circuit. August 17, 2011 686 F.3d 681 2012 WL 130339 10-15180

GOVERNMENT - Records. District court made improper finding that disclosure of information would constitute clearly unwarranted invasion of privacy.
... In assessing the public interest in disclosure, we examine whether the public interest sought to be advanced is a significant oneone more specific than having the information for its own sakeand whether the requested information is likely to advance that interest. ... ... But the public interest to be considered in this balance is circumscribed: the only relevant public interest in the FOIA balancing analysis is the extent to which disclosure of the information sought would she[d] light on an agencys performance of its statutory duties or otherwise let citizens know what their government is up to.... ...After taking account of the relevant privacy and public interests, the ultimate issue with regard to the application of Exemption 6 is whether, in light of the public interest that would be served by disclosure, the accompanying invasion of privacy would be clearly unwarranted. ... ... This principle derives from the understanding that FOIA provides every member of the public with equal access to public documents and, as such, information released in response to one FOIA request must be released to the public at large. ...

** 61. Dobronski v. F.C.C.

United States Court of Appeals, Ninth Circuit. February 17, 1994 17 F.3d 275 1994 WL 45439 92-16509

Publisher of trade journal brought Freedom of Information Act (FOIA) action seeking work attendance and sick leave records for assistant bureau chief of Federal Communications Commission (FCC). The United States District Court, District of Arizona, Earl H. Carroll, J., denied FCCs motion for summary judgment and ordered disclosure of...
...Disclosure of Federal Communications Commission (FCC) assistant bureau chiefs sick leave records did not qualify for exemption from Freedom of Information Act (FOIA) for personnel and medical files and similar files disclosure of which would constitute clearly unwarranted invasion of personal privacy, given **that public interest in uncovering alleged abuse of public monies and public office outweighed the minimal privacy interests involved; citizen and public had right to investigate alleged payroll abuse by public official, significant public... ... The Court of Appeals, Goodwin, Circuit Judge, held that: (1) sick leave records qualified as similar file under exempti on from FOIA for personnel and medical files and similar files disclosure of which would constitute clearly unwarranted invasion of personal privacy, but (2) sick leave records did not qualify for exemption from FOIA, given that public interest in uncovering alleged abuse of public monies and public office outweighed minimal privacy interests involved.... ... While we agree that government employees may have some privacy interest in the dates and times they took sick leave, for Privacy Act purposes, this nominal privacy interest, in a FOIA case, does not overcome the public interest in disclosure of official misconduct.... ...To determine whether invasion of privacy is clearly unwarranted, thereby qualifying for Freedom of Information Act (FOIA) exemption for personnel and medical files and similar files disclosure of which would constitute clearly unwarranted invasion of personal privacy, court balances factors of plaintiffs interest in disclosure, public interest in disclosure, degree of invasion of personal privacy, and availability of any alternate means of obtaining requested information. 5 U.S.C.A. 552(b)(6)....

62. Church of Scientology of California v. U.S. Dept. of Army

United States Court of Appeals, Ninth Circuit. November 07, 1979 611 F.2d 738 78-1168, 78-1169

Religious association brought action under Freedom of Information Act seeking to compel disclosure of certain documents of the Department of Defense and the Department of Army. The United States District Court for the Central District of California, Warren J. Ferguson, J., entered judgment releasing certain documents with details excised and...
...See Pacific Molasses Co. v. N. L. R. B., 577 F.2d 1172 (5th Cir. 1978) (union preference cards signed by employees exempt); Committee on Masonic Homes, etc. v. N. L. R. B., 556 F.2d 214 (3d Cir. 1977) (union preference cards exempt since little public interest in disclosure and great potential for chilling effect in exercise of union privileges if disclosure takes place); Columbia Packing Co., Inc. v. U. S. Dept. of Agriculture, 563 F.2d 495 (1st Cir. 1977) (privacy interest in personnel files outweighed by public interest in performance of government meat inspectors suspected of accepting bribes); Campbell v. United States Civil Service Commission, 539 F.2d 58 (10th Cir. 1976)... ...In Freedom of Information Act case, burden is on government agency to establish that given document is exempt from disclosure; in meeting its burden of proof, government may not rely upon conclusory and generalized allegations of exemptions, but, on the other hand, government need not specify its objections in such detail as to compromise the secrecy of information. 5 U.S.C.A. 552.... ...Case law identifies four factors to be balanced in weighing a claim of Freedom of Information Act exemption for a clearly unwarranted invasion of personal privacy: plaintiffs interest in disclosure, public interest in disclosure, degree of invasion of personal privacy, and availability of any alternative means of obtaining requested information; in weighing the factors, courts keep in mind that the invasion of privacy must be clearly unwarranted. 5 U.S.C.A. 552(b)(6).... ...[5] If, however, the court finds the affidavits or testimony submitted too generalized to establish eligibility for an exemption, it may, in its discretion, proceed to examine the disputed documents In camera for a first-hand determination of their exempt status. 5 U.S.C. s 552(a)(4)(B)....

67. Lahr v. National Transp. Safety Bd.

United States Court of Appeals, Ninth Circuit. June 22, 2009 569 F.3d 964 2009 WL 1740752 06-56717, 06-6732, 07-55709

GOVERNMENT - Records. Eyewitnesses to airline disaster had cognizable privacy interest for purposes of FOIAs law enforcement/privacy exemption.
...Although both Freedom of Information Act (FOIA)s personnel and medical files exemption and Acts law enforcement/privacy exemption require court to engage in similar balancing of privacy interest protected by

exemption against public interest in government openness served by disclosure, greater magnitude of public interest is required to override privacy interests protected by law enforcement/privacy exemption. 5 U.S.C.A. 552(b)(6), (b)(7)(C).... ...As a threshold matter, Lahr contends that evidence of government misconduct, crime, and fraud bars the application of Exemption 5. See **In re Sealed Case, 121 F.3d 729, 738 (D.C.Cir.1997) ([W]here there is reason to believe the documents sought may shed light on government misconduct, the privilege is routinely denied, on the grounds that shielding internal government deliberations in this context does not serve the publics interest in honest, effective government.... ...In light of the strong policy of the FOIA that the public is entitled to know what its government is doing and why, [E]xemption 5 is to be applied as narrowly as consistent with efficient Government operation. ... ... We have previously expressed skepticism at the notion that such derivative use of information can justify disclosure under Exemption 6. 524 F.3d at 1027; see also Ray, 502 U.S. at 178, 112 S.Ct. 541 (questioning, but not deciding, whether a cognizable public interest is presented where [t]he asserted public interest stems not from the disclosure of the redacted information itself, but rather from the hope that respondents [who made the FOIA requests], or others, may be able to use that information to obtain additional information outside the Government files)....

70. John Doe Agency v. John Doe Corp.

Supreme Court of the United States December 11, 1989 493 U.S. 146 110 S.Ct. 471 88-1083

Defense contractor which had received subpoena from grand jury for certain records relating to a cost allocation which had been the subject of a prior government audit brought Freedom of Information Act action to obtain related records from the government. The United States District Court for the Eastern District of New York, Jacob Mishler, J.,...
... This reading of the statute recognizes the balance struck by Congress between the publics interest in greater access to information and the Governments need to protect certain kinds of information from disclosure and is supported by the FOIAs legislative history.... ... Recognizing past abuses, Congress sought to reach a workable balance between the right of the public to know and the need of the Government to keep information in confidence to the extent necessary without permitting indiscriminate secrecy. ... ... The Court asserts that we have consistently taken a practical approach to the interpretation of FOIA, by which it means achieving a workable balance between the interests of the public and the needs of the Government. ... ...Before it may invoke exception to disclosure under the Freedom of Information Act for records or information compiled for law enforcement purposes, the government has the burden of proving the existence of a compilation for that purpose. 5 U.S.C.A. 552(b)(7)....

72. Multnomah County Medical Soc. v. Scott

United States Court of Appeals, Ninth Circuit. August 26, 1987 825 F.2d 1410 Med & Med GD (CCH) P 36,611 86-3599

Nonprofit medical professional organizations request for disclosure of names and addresses of medicare beneficiaries was granted by the United States District for the District of Oregon, Helen J. Frye, J., and the deputy administrator of the Health Care Financing Administration appealed. The Court of Appeals, Goodwin, Circuit Judge, held that...
...Public interest did not support disclosure of names and addresses of medicare beneficiaries to nonprofit medical professional organization, in light of evidence that organization was primarily interested in including in list of physicians its members who were nonparticipating physicians so they would not fall from public notice in light of government directory listing only participating physicians. 5 U.S.C.A. 552(b)(6).... ...Kurzon v. Dept. of Health & Human Services, 649 F.2d 65 (1st Cir.1981) (disclosure of names and business addresses of unsuccessful applicants for National Cancer Institute research grants for a study to determine if innovative research proposals had been fairly evaluated); Getman v. NLRB, 450 F.2d 670 (D.C.Cir.1971) (bare lists of names and addresses of employees which employers were required to give to the NLRB were discloseable to law professors conducting NLRB voting study since invasion would be minimal in light of strong public interest in empirical results of voting study and where no alternative unbiased means of getting the information existed); Disabled Officers Assn v. Rumsfeld,... ...To determine whether invasion of privacy is clearly unwarranted so as to be exempt from disclosure under the Freedom of Information Act, court balances four factors: plaintiffs interest in disclosure, public interest in disclosure, degree of invasion of personal privacy, and availability of alternative means of obtaining requested information. 5

U.S.C.A. 552(b)(6).... ...Congress intended the public to use FOIA to open agency action to the light of public scrutiny, Rose, 425 U.S. at 361, 96 S.Ct. at 1599, and to ensure an informed citizenry needed to check against corruption and to hold the governors accountable to the governed. ...

Citizens for Responsibility and Ethics in Washington v. U.S. Dept. of Educ., 593 F.Supp.2d 261, 270, (D.D.C., Jan 23, 2009) [9] First, the defendant misinterprets the public interest prong of the FOIA fee waiver test as requiring the requester to describe with reasonable specificity the underlying substantive terms of its request instead of, or in addition to, the significant contribution that the request would have on the public understanding of government operations or activities. **The key inquiry with respect to a FOIA fee waiver request is whether dissemination of the requested information is likely to contribute significantly to citizens' understanding of the workings of their government. Judicial Watch, Inc. v. Gen. Servs. Admin., 2000 WL 35538030, at *11 (D.D.C. Sept. 25, 2000); see also McClellan, 835 F.2d at 1285. Thus, a requester satisfies its burden by describing with reasonable specificity the link between the request and the enhancement of public awareness and understanding of governmental activities. Id. Here, the plaintiff has satisfied its burden*271 by specifying, through reference to the administrative record alone, how disclosure of the requested documents will significantly contribute to the public's understanding of government operations. See Am. Compl., Ex. G at 6 (explaining that [t]he records CREW seeks in items 2 and 3 will likely contribute significantly to the public's understanding of the extent to which publishers were in contact with [the defendant] ... during the Reading First development and grant process); Id., Ex. A at 3 **(stating that the plaintiff intends to analyze the information responsive to [its] request, ... share its analysis with the public, either through memoranda, reports or press releases ... [and] disseminate any documents it acquires from this request to the public). Unlike the plaintiff in Jarvik, who failed to meet his burden by asserting generally that the requested CIA reports would help the public better evaluate the CIA, 495 F.Supp.2d at 73, the plaintiff here has specifically described an identifiable subject of the requested disclosures**the role of commercial publishers in the defendant's operation of Reading Firstthat it intends to research, analyze and disseminate to the public, see Am. Compl., Exs. A at 3, D, G at 6. In addition, the plaintiff's aim to elucidate the ties between the defendant and commercial publishers through its analysis and dissemination of the requested documents is particularly significant given Congress's intention to encourage open and accountable government under the FOIA fee waiver provision. Gen. Servs. Admin., 2000 WL 35538030, at *11; see also Physicians' Comm., 480 F.Supp.2d at 124 (explaining that the plaintiff's description of a specific problem ... and its impact on [the defendant's interagency group's] ability to fulfill a specific statutory mandate ... satisfies the reasonably specific standard, which is all that FOIA requires' ) (quoting Judicial Watch v. Rossotti, 326 F.3d 1309, 1313 (D.C.Cir.2003)). The documents that the plaintiff plans to make publicly available, coupled with the plaintiff's analysis thereof, will allow the public to make a more informed assessment of the ethical propriety and wisdom of the actions of the defendant's officials who administer the Reading First program. Cf. Gen. Servs. Admin., 2000 WL 35538030, at *11 (determining that [w]idespread dissemination will most likely illuminate in greater detail the relationships and interactions between high elected officials, their campaign staff and their donors, as they may relate to a decision to spend the taxpayers' money). Thus, as the

plaintiff correctly states, **the disclosures likely will result in the expansion of, and therefore a significant contribution to, the public's understanding of the potential conflicts of interest in the defendant's operation of Reading First. In light of Congress's intent that federal agencies liberally construe[ ] [FOIA] in favor of waivers for noncommercial requesters, the court determines that the plaintiff has squarely satisfied its burden with respect to the public interest prong. McClellan, 835 F.2d at 1284 (quoting 132 Cong. Rec. S14298 (Sept. 30, 1986) (statement of Sen. Leahy)).

Citizens for Responsibility and Ethics in Washington v. U.S. Dept. of Justice, 840 F.Supp.2d 226, 229, (D.D.C., Jan 10, 2012) the court stated, [3][4][5] The Act requires agencies to comply with requests to make their records available to the public, unless the requested records fit within one or more of nine categories of exempt material. Oglesby v. U.S. Dep't of the Army, 79 F.3d 1172, 1176 (D.C.Cir.1996). In narrowly construing the applicability of the FOIA exemptions, it is essential to remember that the Act's central purpose is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and hold the governors accountable to the governed. NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978). In order to further that purpose, federal agencies claiming applicability of any of FOIA's exemptions bear the burden of providing a relatively detailed justification for assertion of an exemption, and must demonstrate to a reviewing court that records withheld are clearly exempt. Birch v. U.S. Postal Service, 803 F.2d 1206, 1209 (D.C.Cir.1986) (quoting Vaughn v. Rosen (Vaughn ), 484 F.2d 820, 82728 (D.C.Cir.1973)) And the court stated at p. 234, 2. There Is a Substantial Public Interest in Disclosure of the Requested Records [12] The second step of the balancing test under Exemptions 6 and 7(C) is to determine whether there is a substantial public interest in releasing the requested documents. It is difficult to understand how there could not be a substantial public interest in disclosure of documents regarding the manner in which DoJ handled high profile allegations of public corruption about an elected official. **Clearly, the American public has a right to know about the manner in which its representatives are conducting themselves and whether the government agency responsible for investigating and, if warranted, prosecuting those representatives for alleged illegal conduct is doing its job. **The public interest that must be weighed in this balance is the extent to which disclosure advances the basic purpose of the Freedom of Information Act to open agency action to the light of public scrutiny. ACLU, 655 F.3d at 6 (quoting Reporters Comm., 489 U.S. at 772, 109 S.Ct. 1468). In particular, in these days of political turmoil, constant accusations and name calling, and concern about our economic and social future,FN6 there is, if anything, a heightened public interest in learning what the Government is up to. Id. at 12. As the Supreme Court pointed out early in FOIA's history, and constantly reiterates, **[o]fficial information

that sheds light on the agency's performance of its statutory duties falls squarely within [FOIA's] statutory purpose. Reporters Comm., 489 U.S. at 773, 109 S.Ct. 1468. In this case, disclosure of information concerning DoJ's investigation of Rep. Young would unquestionably shed light on the agency's performance of its statutory duties. Id. FN6. The Court is well aware that this is not the first, or second, time in American history that our political discourse has been polarized, that intemperate language has been used, and that allegations of serious misconduct by public officials have abounded. In addition to the widespread public interest in this country at this time in holding its Government accountable, we have the added, and decidedly uncommon fact in this case, that Congress passed a specific piece of legislation, P.L. 110244, 502 (June 6, 2008), directing DoJ to conduct an investigation of all allegations of impropriety regarding item 462 in Section 1934(c) of Public Law 10959 to ascertain if a violation of Federal criminal law has occurred. Item 462 in 1934(c) of P.L. 10959, which was enacted as Section 502 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEALU), Technical Corrections Act of 2008, P.L. 110244 (June 6, 2008), authorized an appropriation of $10 million for a project described as Coconut Rd. Interchange and I75/Lee County. Moreover, in a highly unusual, and unexplained, action, the original language in the Appropriations Bill was mysteriously changed after the House and Senate approved the Bill but before the President signed it, to more specifically indicate that Item 462 was for the benefit of the Coconut Road Interchange. *235 Given the fact that Rep. Young was at that time Chair of the House of Representatives Transportation Committee, and given the detailed remarks he made on the floor of the House of Representatives about this matter, there is a substantial public interest in examining the adequacy of DoJ's enforcement of other types of law governing the activities of federal officials, in addition to the explicit direction given by Congress to DoJ to investigate the Coconut Road matter.FN7 FN7. For example, see Common Cause v. Nat'l Archives and Records Serv., 628 F.2d 179, 183 n. 10 (D.C.Cir.1980) (regarding the Federal Corrupt Practices Act); Wash. Post Co. v. U.S. Dep't of Health and Human Servs., 690 F.2d 252, 265 (D.C.Cir.1982) (regarding conflict-of-interest information), and Dow Jones & Co. v. U.S. Dep't of Justice, 724 F.Supp. 985, 99091 (D.D.C.1989) (regarding disclosure statutes). The Government argues that Plaintiff has failed to establish any cognizable public interest because it is only the conduct of the agency holding the requested document that can implicate cognizable public interest under FOIA. Defendant's Opposition to Plaintiff's CrossMotion for Partial Summary Judgment and Reply to Plaintiff's Opposition to Defendant's Motion for Summary Judgment at 1314 (Def.'s Opp.) [Dkt. No. 13]. It then goes on to state that there is significant public interest only if there is compelling evidence that the agency is engaged in illegal activity. Id. at 14 (citing SafeCard Servs. v. S.E.C., 926 F.2d 1197, 120506 (D.C.Cir.1991) (emphasis not in original)).

Plaintiff has made it very clear in its papers that it is not arguing that DoJ is engaged in either illegal or negligent action. Therefore, it is not correct that Plaintiff must provide compelling evidence of any such conduct on the part of DoJ. It is only when a requester is making such allegations of illegal or otherwise improper conduct that compelling evidence must be offered demonstrating such behavior. ACLU, 655 F.3d at 14. In ACLU, the Court of Appeals explicitly distinguished situations in which that requirement is applicable from the situation presented in this case **where a FOIA requester is not (or at least not only) seeking to show that the government's ... policy is legally improper.... Id. at 14. The Court ruled that evidence of such misconduct is not required in that instance. ** [M]atters of substantive law enforcement policy ... are properly the subject of public concern, whether or not the policy in question is lawful. Id. (quoting Reporters Comm., 489 U.S. at 766, n. 18, 109 S.Ct. 1468). The Court explained that the fact that the ACLU did not suggest that the DoJ activity at issue was legally improper, distinguishes this case from cases like our recent decision in Blackwell v. FBI, 646 F.3d 37 (D.C.Cir.2011). Id. at 14 n. 22.FN8 See Judicial Watch, Inc. v. U.S. Dep't of Homeland Sec'y, 598 F.Supp.2d at 97. FN8. In Blackwell, a convicted felon sought information from the FBI that he believes would show misconduct by federal investigators and prosecutors handling his case. 646 F.3d at 39. [13] Finally, in Multi Ag Media, the Court of Appeals reiterated, referring to Reporters Comm. and U.S. Department of Defense v. FLRA (FLRA), 510 U.S. 487, 495, 114 S.Ct. 1006, 127 L.Ed.2d 325 (1994), that the relevant public interest under FOIA is the extent to which disclosure [of requested files] would serve the core purpose of the FOIA which is contribut [ing] significantly to public understanding of the operations and activities of the government. 515 F.3d at 123031 (quoting FLRA, 510 U.S. at 495, 114 S.Ct. 1006). **Thus, it is clear that there is no requirement that a FOIA requester must *236 always allege that the Government is acting illegally in order to establish the existence of a substantial public interest.
Citizens for Responsibility and Ethics in Washington v. U.S. Dept. of Justice, 602 F.Supp.2d 121, 122, (D.D.C., Mar 16, 2009) Background: Nonprofit organization seeking to inform public about activities of government officials sued Department of Justice (DOJ), under Freedom of Information Act (FOIA), seeking information concerning significant reduction monetary penalties sought by DOJ in tobacco industry litigation. Organization moved for summary judgment on entitlement to fee waiver. Holdings: The District Court, Emmet G. Sullivan, J., held that: (1) possibility of eventual exemption of some records from disclosure did not warrant denial of fee waiver, and (2) request satisfied informative value and public significance requirements for fee waiver. Motion granted.

[8] Records 326

68

326 Records 326II Public Access 326II(B) General Statutory Disclosure Requirements 326k61 Proceedings for Disclosure 326k68 k. Costs and Fees. Most Cited Cases **Freedom of Information Act (FOIA) requests based on nothing more than bare allegations of malfeasance, unsupported by the evidence, do not have enough informative value to merit a fee waiver. 5 U.S.C.A. 552(a)(4)(A)(iii). [10] Records 326 68

326 Records 326II Public Access 326II(B) General Statutory Disclosure Requirements 326k61 Proceedings for Disclosure 326k68 k. Costs and Fees. Most Cited Cases Where statements of the public value of requested information, under Freedom of Information Act (FOIA), are contained in the plaintiff's correspondence with the agency and are stated with reasonable specificity, they meet at least the threshold test for informative value required for fee waiver. 5 U.S.C.A. 552(a)(4)(A)(iii). [11] Records 326 68

326 Records 326II Public Access 326II(B) General Statutory Disclosure Requirements 326k61 Proceedings for Disclosure 326k68 k. Costs and Fees. Most Cited Cases Although Department of Justice (DOJ) denied as too ephemeral nonprofit organization's information request concerning reduced monetary penalties sought by DOJ in tobacco litigation, request stated with sufficient specificity both informative value and public significance of information to qualify for fee waiver, under Freedom of Information Act (FOIA) and regulations governing public interest requirements; request was limited to documents concerning particular agency action of tobacco litigation, was supported by referring to news reports casting doubt on propriety of penalty reduction, was framed as **informing public about circumstances surrounding penalties, rather than merely digging for inculpatory materials, so would not likely exceed purpose, and sought information not publicly available and likely highly significant due to scale and nature of tobacco litigation. 5 U.S.C.A. 552(a)(4)(A)(iii); 28 C.F.R. 16.11(k)(2)(iiv). MEMORANDUM OPINION EMMET G. SULLIVAN, District Judge. Plaintiff, Citizens for Responsibility and Ethics in Washington (CREW), commenced this action against the United States Department of Justice (the DOJ) pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. 552. CREW seeks information concerning the government's decision to reduce its monetary penalty request in its

ongoing litigation against the tobacco industry. Pending before the Court is Plaintiff's Motion for Summary Judgment on its entitlement to a fee waiver under FOIA. Upon consideration of the motion, the response and reply thereto, the applicable law, and the entire record, Plaintiff's Motion for Summary Judgment on its entitlement to a fee waiver under FOIA is GRANTED. Accordingly, the fees incurred by Defendant in response to Plaintiff's request for documents regarding the reduction in penalties at issue in this case shall be waived.

And the court stated at p. 123, B. Factual and Procedural Background CREW is a non-profit organization that strives to inform the public about the activities of government officials. Compl. 4. The FOIA request at issue came out of the litigation surrounding United States v. Philip Morris, Inc., a racketeering case brought on behalf of the United States against the tobacco industry.FN1 On June 7, 2005, DOJ attorneys requested that as a penalty for the tobacco industry's violations, the court order the industry to fund a $10 billion smoking cessation program, at a rate of $2 billion per year for five years. Compl. 16. As reported by the newspapers closely following the tobacco litigation, this proposed penalty represented a significant departure from the government's position in the case up to that point, which was a $130 billion smoking cessation program, at a rate of $5.2 billion per year for twenty-five years. Id. at 1618; Pl.'s Mem. P. & A. Supp. Mot. Summ. J. (Pl.'s Mem.) at 1. That reduction in penalties led CREW to believe there had been political pressure applied to career DOJ attorneys to protect the financial interest of tobacco companies that had provided generous campaign contributions. FN2 Pl.'s Mem. at 1. FN1. Defendants included Philip Morris, R.J. Reynolds, Brown & Williamson Tobacco Co., and British American Tobacco. Compl. 15; see also United States v. Philip Morris, Inc., No. 992496 (D.D.C.). FN2. This change in penalty also sparked concerns from several congressmen, which prompted a request of DOJ's Inspector General to investigate whether improper political interference led to the government's change in the penalty it was seeking from the court. Compl. 19, 20. In line with its belief that gaining access to documents concerning the reduction in penalties would reveal meaningful information about the operations and activities of the federal government, id. at 2, CREW made a FOIA request, by letter on *124 June 28, 2005, for all records relating in any way to the government's proposed penalty in United States of America v. Philip Morris, Inc. et. al. Letter from Anne Weismann to James Kovakas (June 28, 2005), attached as Ex. 1(A) to Def.'s Opp'n to Pl.'s Mot. Summ. J. (Def.'s Opp'n). Specifically, CREW requested all memoranda, communications and records of any kind and from any source, regardless of format, medium, or physical characteristics, from January 1, 2001, to the present, discussing or mentioning in any way any penalty that the U.S. Department of Justice, on behalf of the United States of America, can, may, should or will propose in the above-referenced litigation....

This request includes, but is not limited to, records discussing, mentioning, or referring in any way to the government's decision to reduce the penalties it is seeking against the tobacco industry from $130 billion to $10 billion ... [and] records relating in any way to any offer of settlement in the tobacco lawsuit from any source whatsoever. Id. In its letter, CREW also sought expedited processing of its request under 5 U.S.C. 552(a)(6)(E)(i) and a fee waiver under 5 U.S.C. 552(a)(4)(A)(iii). Id. The DOJ granted CREW's request for expedited processing, but denied the fee waiver on the grounds that responsive documents would be protected from disclosure under the deliberative-process and work-product privileges. Letter from James Kovakas to Anne Weismann (July 7, 2005), attached as Ex. 1(B) to Def.'s Opp'n. The DOJ then advised CREW of the likely costs associated with its request, asked if the organization would be willing to pay those fees, and suggested a narrowing of the scope of the request.FN3 Id. CREW's appeal from that determination was denied on the grounds that CREW's allegations were too ephemeral to support a fee-waiver request and that, therefore, the request was not likely to contribute to the public's understanding. Letter from Melanie Ann Pustay to Ann Weismann (Jan. 19, 2006), attached as Ex. 2(E) to Def.'s Opp'n. In addition, the DOJ notified CREW of its position that the fee-waiver provision of FOIA refers only to disclosable portions of the record. Id. As such, because the DOJ claimed that information requested by CREW was virtually inherently protected from disclosure by the attorney-client, deliberative-process, or workproduct privileges, it deemed much of CREW's request ineligible for a fee waiver. Id. The DOJ agreed to waive fees for releasable documents that otherwise satisfied the public-interest standard. Id. CREW's waiver ineligibility was confirmed on appeal. Letter from Daniel Metcalfe to Ann Weismann (Jan. 23, 2006), attached as Ex. 1(D) to Def.'s Opp'n. FN3. CREW did later narrow its request to documents dealing with the identification and selection of remedies sought by the Department and any changes to particular remedies sought by the Department from January 2005 onward, including records discussing, mentioning or referring in any way to the government's decision to reduce the penalties it is seeking against the tobacco industry from $130 billion to $10 billion or the government's decision to offer testimony from any witness during the remedies phase of trial in United States v. Philip Morris. Letter from James Kovakas to Anne Weismann (March 8, 2006), at 1, attached as Ex. 1(E) to Def.'s Opp'n. Following a full initial briefing and two hearings, the Court granted discovery on the issue of whether the DOJ acted in bad faith in delaying its processing of CREW's FOIA requests. After discovery was completed, the parties then filed cross-motions for summary judgment on that issue. The briefing on those motions was completed in late December 2006. The Court issued a *125 minute order on March 31, 2008, directing the parties to brief the issue of entitlement to a fee waiver. The cross-motions for summary judgment on bad faith were denied without prejudice to refiling pending resolution of the fee-waiver issue now before the Court. And the court stated at p. 125,

Had CREW's request been properly evaluated on its face, it would have fallen within the statutory requirements of FOIA and DOJ regulations. The DOJ contends that the claim was too ephemeral to be likely to contribute to public understanding. Letter from Melanie Ann Pustay to Ann Weismann (Jan. 19, 2006), attached as Ex. 2(E) to Def.'s Opp'n. However, **given the well-publicized nature of and interest in the reduction of fees in the tobacco litigation, an interest that formed the basis of CREW's request, the contention that *126 information on this issue would inform the public understanding is not such a bare allegation as to warrant rejection by this Court. Moreover, the information was not already publicly available, as made clear by the DOJ's claims of eligibility for exemption. Therefore, the request was in the public interest; and because the information is not in CREW's commercial interest, the request falls within FOIA's fee-waiver provision.

And the court stated at p. 128,

B. Because CREW is requesting information in the public interest that is not in the commercial interest of the requester, it meets the publicinterest requirement of FOIA and is eligible for a fee waiver. FOIA requires each agency to waive or reduce fees for information requested in the public interest that is not primarily in the commercial interest of the requester. 5 U.S.C. 552(a)(4)(A)(iii). DOJ regulations specify the following criteria for determining whether a particular request is in the public interest: **1) whether the subject concerns the operations and activities of the government; **2) the informative value of the requested information; **3) the contribution to a greater understanding by the public; and **4) the significance of that contribution. See 28 C.F.R. 16.11(k)(2)(i-iv). The DOJ has not contested that CREW's request concerns the operations and activities of the government, nor that CREW is capable of contributing to a greater understanding by the public. At issue, then, are the informative value of the requested information and its significance to the public. [8][9][10] Requests based on nothing more than [b]are allegations of malfeasance, unsupported by the evidence, do not have enough informative value to merit a fee waiver. Klein, 2006 WL 1442611, at *4; see also Van Fripp v. Parks, 2000 U.S. Dist. LEXIS 20158, at *17 (D.D.C. Mar. 15, 2000) (finding that [i]n the absence of independent evidence of misappropriation, the plaintiff's request [was] too ephemeral to compel the public to pay for his request). Moreover, requests for documents that are not limited to a particular agency action or matter may be overly broad. See generally Judicial Watch, Inc. v. Dep't of Justice, 122 F.Supp. 2d 13 ( D.D.C. 2000) (finding that a request for documents relating in any way to Senator Orrin Hatch and the Bank of Credit and Commerce International without any further narrowing of the request lacked necessary specificity). However, these rejections of unsupported or overbroad requests impose only a minimal bar on plaintiffs. Where statements of the public value of requested information are contained in the plaintiff's correspondence with the agency and are stated with reasonable specificity, they meet at least the threshold test for

informative value. See Rossotti, 326 F.3d at 131213; *129In Defense of Animals v. Nat'l Instits. of Health, 543 F.Supp.2d 83, 109 (D.D.C.2008). Calling CREW's request too ephemeral, the DOJ says that CREW failed to make a proper showing that the requested information would contribute to an understanding of the penalty reduction in the tobacco litigation. As argument, it notes that CREW failed to cite to United States v. Philip Morris, USA, Inc., a case limiting the DOJ's ability to seek certain remedies. 396 F.3d 1190 (D.C.Cir.2005); see Def.'s Opp'n at 1415. The DOJ contends that this case was the reason for the reduction in penalties, as stated by then-Associate Attorney General Robert McCallum, and that CREW's allegations of malfeasance derived from newspapers and individuals are insufficient. Def.'s Opp'n at 1415. As such, it alleges, CREW failed this prong of the public-interest analysis. [11] Contrary to the government's assertions, however, the Court finds that the public value of the information sought by CREW was stated with enough specificity to qualify for a fee waiver. First, unlike the plaintiffs in Judicial Watch, Inc. v. Department of Justice, CREW limited its request to documents surrounding the tobacco litigation, a particular agency action. See 122 F.Supp. 2d at 14 15. Moreover, CREW supported its specific request for information by reference to news reports casting doubts on the propriety of the reduction in penalties.FN7 See Letter to James Kovakas from Anne Weismann (June 28, 2005), at 3, attached as Ex. 1(A) to Def.'s Opp'n. By justifying its desire to know about the penalty reduction in that way, CREW did more than make bare allegations of malfeasance. Klein, 2006 WL 1442611, at *4. Finally, CREW framed the purpose of its request as informing the public about the circumstances surrounding the ... penalties. Because CREW is seeking explanatory information of any kind, not merely digging for inculpatory materials, it is unlikely that its request will exceed the purpose for which it is to be used. See Van Fripp, 2000 U.S. Dist. LEXIS 20158, at *17. There is no bright-line test for a sufficient showing of informative value. However, given CREW's specific motives and goals, the Court is satisfied that it has made its request with enough specificity to show informative value to the public. FN7. This reference to news reports was initially contained in the section of the letter referring to the expedited processing request rather than that for the fee waiver. However, because the entire document was before all those within the agency who reviewed it, there seems to be little reason to disregard this reference. See Letter to James Kovakas from Anne Weismann (June 28, 2005), at 3, attached as Ex. 2(E) to Def.'s Opp'n. The fourth factor, the significance of the information to the public, is influenced by whether the information is already available. See, e.g., Rossotti, 326 F.3d at 131415. Given that much of the government's case rests on the privileged nature of the requested documents, it is clear to the Court that this information is not publicly available. Moreover, given the scale and public nature of the tobacco litigation, the Court is persuaded that the significance of any additional information is likely to be high, regardless of whether the documents uncover any wrongdoing. See id. at 1314 (noting that the American people have as much interest in

knowing that key IRS decisions are free from the taint of conflict of interest as they have in discovering that they are not). Because CREW has made a valid showing of both informative value and public significance, the Court is persuaded that it has met the public-interest requirements necessary for a fee waiver. The DOJ does not contest that the information requested *130 is not in the commercial interest of CREW. As such, CREW met both elements of the FOIA fee-waiver provision, and is entitled to a waiver of its fees in the instant case.
In re Sealed Case, 121 F.3d 729, 735, (D.C.Cir., Jun 17, 1997)

In course of grand jury investigation of former Secretary of Agriculture, grand jury issued subpoena duces tecum seeking documents pertaining to White House Counsel's investigation of same official. White House produced certain documents but withheld others under deliberative process privilege and presidential communications privilege. Office of Independent Counsel (OIC) moved to compel production. After reviewing documents in camera, the United States District Court for the District of Columbia, John Garrett Penn, Chief Judge, upheld White House's claims of privilege. OIC appealed. The Court of Appeals, Wald, Circuit Judge, held that: (1) Court of Appeals would give no deference to district court's holding that presidential communications privilege permitted White House to withhold certain documents; (2) White House did not waive its right to assert privileges; (3) communications made by presidential advisers in course of preparing advice for President come under presidential communications privilege, even when these communications are not made directly to President; (4) presidential communications privilege applied to all withheld documents; and (5) although OIC's first asserted reason was insufficient to demonstrate need for those documents, OIC's second asserted reason was sufficient to obtain in camera review. Vacated and remanded. [8] Privileged Communications and Confidentiality 311H 361

311H Privileged Communications and Confidentiality 311HVI Public Officers and Records 311Hk361 k. Deliberative process privilege; mental process privilege. Most Cited Cases (Formerly 410k216(1)) **Where there is reason to believe documents sought may shed light on government misconduct, deliberative process privilege is routinely denied, on grounds that shielding internal government deliberations in this context does not serve public's interest in honest, effective government.
[6][7][8][9] The deliberative process privilege is a qualified privilege and can be overcome by a sufficient showing of need.FN5 This need determination is to be made flexibly on a case-by-case, ad hoc basis. [E]ach time [the deliberative process privilege] is asserted the district court must undertake a fresh balancing of the competing interests, taking into account factors such as the relevance of the *738 **285 evidence, the availability of

other evidence, the seriousness of the litigation, the role of the government, and the possibility of future timidity by government employees. In re Subpoena Served Upon the Comptroller of the Currency, 967 F.2d 630, 634 (D.C.Cir.1992) (internal quotations omitted) (quoting In re Franklin Nat'l Bank Securities Litig., 478 F.Supp. 577, 583 (E.D.N.Y.1979)); see also Tuite v. Henry, 98 F.3d 1411, 1417 (D.C.Cir.1996) (describing need in the context of the law enforcement investigatory privilege, which involves balancing similar factors, as an elastic concept); Developments in the LawPrivileged Communications, 98 HARV. L.REV.. 1450, 1621 (1985) (courts simply engage in an ad hoc balancing of the evidentiary need against the harm that may result from disclosure); LARKIN, supra, 5.03 at 589 to 592 (need for [privileged materials] may vary considerably, depending on the circumstances). For example, **where there is reason to believe the documents sought may shed light on government misconduct, the privilege is routinely denied, on the grounds that shielding internal government deliberations in this context does not serve the public's interest in honest, effective government. Texaco Puerto Rico, Inc. v. Department of Consumer Affairs, 60 F.3d 867, 885 (1st Cir.1995); see also In re Comptroller of the Currency, 967 F.2d at 634 (the privilege may be overridden where necessary ... to shed light on alleged government malfeasance ) (quoting Franklin Nat'l Bank, 478 F.Supp. at 582); Wetlaufer, supra, at 852 n. 25, 855 (listing cases). FN5. This characteristic of the deliberative process privilege is not an issue in FOIA cases because the courts have held that the particular purpose for which a FOIA plaintiff seeks information is not relevant in determining whether FOIA requires disclosure. See Sears, 421 U.S. at 149 n. 16, 95 S.Ct. at 1516 n. 16; Mink, 410 U.S. at 86, 93 S.Ct. at 835; see also Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 77172, 109 S.Ct. 1468, 148081, 103 L.Ed.2d 774 (1989) (determination of whether disclosure of information constitutes an unwarranted invasion of privacy under FOIA's exemption 7(c) turns on nature of document and what document reveals about operation of government and not on identity or purpose of requestor).

Edmonds Institute v. U.S. Dept. of Interior, 460 F.Supp.2d 63, 73, (D.D.C., Oct 30, 2006)

2. Is Edmonds entitled to a fee waiver for its August 2005 FOIA request? [12][13] DOI has the authority under FOIA to promulgate a schedule of fees covering the reasonable standard cost of processing document requests. 5 U.S.C. 552(a)(4)(A)(ii); 43 C.F.R. 2.16.18, App. C (2006) (DOI fee schedule). These fees must be waived or reduced 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. 552(a)(4)(A)(iii). By enacting this statutory language, Congress intended FOIA's fee-waiver provision to be liberally construed in favor of waivers for noncommercial requesters. Judicial Watch, Inc. v. Rossotti, 326 F.3d 1309, 1312 (D.C.Cir.2003) (quoting 132 Cong. Rec. 27,190 (1986) (statement of Sen. Leahy)). Nonetheless, the requester bears the burden of satisfying the public-interest standard. E.g., Larson v. CIA, 843 F.2d 1481, 1483 (D.C.Cir.1988) (per curiam). Fee-waiver requests therefore must be made with reasonable specificity, and must be based

on more than conclusory allegations. Rossotti, 326 F.3d at 1312 (internal quotation marks omitted). Edmonds initially supported its fee-waiver request solely with a reference to its October 2002 FOIA Request. See August 2005 FOIA Request. In the 2002 request, Edmonds offered the following justification for a fee waiver: The Edmonds Institute is a 501(c)(3) non-profit organization which provides educational information to the public concerning the use of microbiological resources, including the use of such materials*73 taken from public lands. In addition, the organization publishes information concerning recent developments in the area of **biodiversity, **the status of enforcement of federal laws concerning biodiversity, and provides the general public with information concerning all aspects of existing and new microbiological resource programs. Therefore, the data that will be supplied by this FOIA request is necessary to the group's organizational function. Furthermore, the response to this request will give the public substantial, new information concerning the functions undertaken by the DOI and its agency subdivisions. The use of this information will help the Edmonds Institute, a nonprofit organization, further its function as disseminators of information concerning the status of current biodiversity issues. October 2002 FOIA Request at 56. Edmonds expanded upon this justification in its September 2005 Waiver Request Letter. The letter stated that disclosure of the requested documents would assist the public in evaluating both DOI's compliance with the district court order in Edmonds Inst. v. Babbitt, 42 F.Supp.2d 1 (D.D.C.1999) (ordering NEPA review of benefits-sharing agreement between Yellowstone National Park and Diversa Corporation), and the status of NEPA review for benefits-sharing agreements more generally. September 2005 Waiver Request Letter at 1. Edmonds also stated that it had demonstrated its expertise in evaluating the types of records and documents requested on this subject by its active participation and involvement in numerous international Conventions on Biodiversity benefit sharing programs attended by staff from the National Park Service, and by its recent publication of a book entitled The Catch: Perspectives On Benefit Sharing, distributed at the Ad Hoc Open Ended Working Group on Access & Benefit Sharing held in Bangkok, Thailand earlier this year. Id. at 2. DOI subsequently denied the Institute's fee-waiver request because it determined that disclosure would not likely contribute significantly to public understanding of government operations and activities.FN5 Cooke Decl. 5; Waiver Denial Letter at 23. **As part of its determination, DOI considered whether Edmonds had the ability and intention to disseminate the information to the general public, including how and to whom the requester intends to disseminate the information and the method of using the information to contribute to public understanding. Waiver Denial

Letter at 2; see also 43 C.F.R. Pt. 2, App. D. (b)(2)(iv) (DOI regulations).FN6 In particular,*74 DOI reviewed the Institute's website and its book, The Catch. With respect to the website, DOI stated that the Institute's failure to post a copy of the district court opinion in Edmonds Inst. v. Babbitt granting defendants' motion for summary judgment, see 93 F.Supp.2d 63 (D.D.C.2000), was misleading to the public and also noted that the most recent material on the website was more than six years old. Waiver Denial Letter at 23. As for The Catch, DOI questioned the book's quality and availability, and observed that it did not demonstrate use of materials disclosed in response to the Institute's three previous FOIA requests. Waiver Denial Letter at 2. FN5. DOI did find that the request fulfilled the first and last fee-waiver factors specified by DOI regulations, i.e., that the documents concern the operations of government and disclosure would not further the Institute's commercial interests. See Waiver Denial Letter at 2; see also 43 C.F.R. Pt. 2, App. D (providing the following criteria for DOI fee-waiver determinations: whether **(1) records concern operations and activities of Government; **(2) disclosure will likely contribute to public understanding of those operations and activities; **(3) that contribution will be significant; and **(4) disclosure is primarily in requester's commercial interest).

And the court stated at p. 74, Edmonds administratively appealed the fee-waiver denial. See Letter Appealing Waiver Denial. On appeal, Edmonds disagreed with DOI's description of its website, stating that it had made a number of very recent publications and postings available. Id. at 3. The Institute also explained that The Catch is provided free of charge at conferences and on the Institute's website. Id. Finally, Edmonds submitted ten letters of support from other non-profit organizations that laud Edmonds as a source of valuable information with respect to benefits-sharing agreements.FN7 See id. at 12. Many of these letters refer to the Institute's **e-mail alerts, publications, webpage, and workshop and conference participation as sources of this information. See Letter Appealing Waiver Denial at 12 & Exs. F through K.
FN7. DOI argues that the meaning of public for purposes of the feewaiver provision does not include members of the international community. Def.'s Reply Supp. Renewed Mot. Summ. J. at 16 n. 5. The Court need not address this issue because DOI does not dispute that the public does include organizations based in the United States, such as the three U.S.based organizations whose letters were presented to the agency. See Letter Appealing Waiver Denial Exs. D, F & G. [14] The information Edmonds submitted to DOI in support of its request is sufficient to entitle the Institute to a fee waiver. The Institute's statement in the October 2002 FOIA request, reprinted in its entirety above, represents the type of overly general, conclusory justification that does not support a fee waiver. See Larson, 843 F.2d at 1483. Edmonds did, however, provide DOI with reasonably specific information in its September 2005 waiver request letter and in its administrative appeal concerning the various means by which it disseminates information to the

public. See September 2005 Waiver Request Letter; Letter Appealing Waiver Denial. Such reasonable specificity is all that FOIA requires. Rossotti, 326 F.3d at 1313. Compare id. at 1314 **(finding public-interest requirement satisfied by description of nine ways in which Judicial Watch communicates information to public), with Larson, 843 F.2d at 1483 (denying waiver request that **failed to identify the newspaper company to which [the requester] intended to release the requested information, **his purpose for seeking the requested material, or his professional or personal contacts with any major newspaper companies). Furthermore, the Institute's failure to state affirmatively that it intended to use the above-described means to disseminate the newly requested information is not fatal to its fee-waiver request. See Rossotti, 326 F.3d at 1314 (Judicial Watch might have added that it will use these methods to publicize any information it obtains from this request, but the government points to nothing in FOIA, the [agency] regulation, or our case law requiring such pointless specificity.). The Court finds unpersuasive DOI's arguments on summary judgment as to why *75 Edmonds has not shown an ability and intent to distribute the requested information. DOI notes that Edmonds failed to demonstrate that is possesses the necessary qualifications or expertise to analyze, synthesize, and effectively convey the requested information to the public in any way. Def.'s Mem. Supp. Renewed Mot. Summ. J. at 25. The Court declines to evaluate the quality of Edmonds's scholarship or to specify a minimum level of expertise required to obtain a fee waiver. Doing so is unnecessary because Edmonds has demonstrated its ability to convey the information to the public by stating in reasonably detailed and nonconclusory terms-again, **all that FOIA requires-exactly how and to whom it will disseminate the information it receives. Rossotti, 326 F.3d at 1314. Citizens for Responsibility and Ethics in Washington v. U.S. Dept. of Justice, 602 F.Supp.2d 121, 123, (D.D.C., Mar 16, 2009) Background: Nonprofit organization seeking to inform public about activities of government officials sued Department of Justice (DOJ), under Freedom of Information Act (FOIA), seeking information concerning significant reduction monetary penalties sought by DOJ in tobacco industry litigation. Organization moved for summary judgment on entitlement to fee waiver. Holdings: The District Court, Emmet G. Sullivan, J., held that: (1) possibility of eventual exemption of some records from disclosure did not warrant denial of fee waiver, and (2) request satisfied informative value and public significance requirements for fee waiver. Motion granted. [8] Records 326 68

326 Records 326II Public Access

326II(B) General Statutory Disclosure Requirements 326k61 Proceedings for Disclosure 326k68 k. Costs and Fees. Most Cited Cases **Freedom of Information Act (FOIA) requests based on nothing more than bare allegations of malfeasance, unsupported by the evidence, do not have enough informative value to merit a fee waiver. 5 U.S.C.A. 552(a)(4)(A)(iii). [10] Records 326 68

326 Records 326II Public Access 326II(B) General Statutory Disclosure Requirements 326k61 Proceedings for Disclosure 326k68 k. Costs and Fees. Most Cited Cases Where statements of the public value of requested information, under Freedom of Information Act (FOIA), are contained in the plaintiff's correspondence with the agency and are stated with reasonable specificity, they meet at least the threshold test for informative value required for fee waiver. 5 U.S.C.A. 552(a)(4)(A)(iii). [11] Records 326 68

326 Records 326II Public Access 326II(B) General Statutory Disclosure Requirements 326k61 Proceedings for Disclosure 326k68 k. Costs and Fees. Most Cited Cases Although Department of Justice (DOJ) denied as too ephemeral nonprofit organization's information request concerning reduced monetary penalties sought by DOJ in tobacco litigation, request stated with sufficient specificity both informative value and public significance of information to qualify for fee waiver, under Freedom of Information Act (FOIA) and regulations governing public interest requirements; request was limited to documents concerning particular agency action of tobacco litigation, was supported by referring to news reports casting doubt on propriety of penalty reduction, was framed as **informing public about circumstances surrounding penalties, rather than merely digging for inculpatory materials, so would not likely exceed purpose, and sought information not publicly available and likely highly significant due to scale and nature of tobacco litigation. 5 U.S.C.A. 552(a)(4)(A)(iii); 28 C.F.R. 16.11(k)(2)(iiv). B. Factual and Procedural Background CREW is a non-profit organization that strives to inform the public about the activities of government officials. Compl. 4. The FOIA request at issue came out of the litigation surrounding United States v. Philip Morris, Inc., a racketeering case brought on behalf of the United States against the tobacco industry.FN1 On June 7, 2005, DOJ attorneys requested that as a penalty for the tobacco industry's violations, the court order

the industry to fund a $10 billion smoking cessation program, at a rate of $2 billion per year for five years. Compl. 16. As reported by the newspapers closely following the tobacco litigation, this proposed penalty represented a significant departure from the government's position in the case up to that point, which was a $130 billion smoking cessation program, at a rate of $5.2 billion per year for twenty-five years. Id. at 1618; Pl.'s Mem. P. & A. Supp. Mot. Summ. J. (Pl.'s Mem.) at 1. That reduction in penalties led CREW to believe there had been political pressure applied to career DOJ attorneys to protect the financial interest of tobacco companies that had provided generous campaign contributions. FN2 Pl.'s Mem. at 1. FN1. Defendants included Philip Morris, R.J. Reynolds, Brown & Williamson Tobacco Co., and British American Tobacco. Compl. 15; see also United States v. Philip Morris, Inc., No. 992496 (D.D.C.). FN2. This change in penalty also sparked concerns from several congressmen, which prompted a request of DOJ's Inspector General to investigate whether improper political interference led to the government's change in the penalty it was seeking from the court. Compl. 19, 20. In line with its belief that gaining access to documents concerning the reduction in penalties would reveal meaningful information about the operations and activities of the federal government, id. at 2, CREW made a FOIA request, by letter on *124 June 28, 2005, for all records relating in any way to the government's proposed penalty in United States of America v. Philip Morris, Inc. et. al. Letter from Anne Weismann to James Kovakas (June 28, 2005), attached as Ex. 1(A) to Def.'s Opp'n to Pl.'s Mot. Summ. J. (Def.'s Opp'n). Specifically, CREW requested all memoranda, communications and records of any kind and from any source, regardless of format, medium, or physical characteristics, from January 1, 2001, to the present, discussing or mentioning in any way any penalty that the U.S. Department of Justice, on behalf of the United States of America, can, may, should or will propose in the above-referenced litigation.... This request includes, but is not limited to, records discussing, mentioning, or referring in any way to the government's decision to reduce the penalties it is seeking against the tobacco industry from $130 billion to $10 billion ... [and] records relating in any way to any offer of settlement in the tobacco lawsuit from any source whatsoever. Id. In its letter, CREW also sought expedited processing of its request under 5 U.S.C. 552(a)(6)(E)(i) and a fee waiver under 5 U.S.C. 552(a)(4)(A)(iii). Id And the court stated at p. 125, III. Discussion [5] With the aforementioned principles surrounding FOIA in mind, the Court turns to the fee-waiver request at issue, and determines that CREW's FOIA request meets the fee-waiver requirements under both FOIA and the DOJ's internal regulations. Fee-waiver requests are evaluated based on the face of the request, not on the possibility of eventual exemption from

disclosure. Ctr. for Medicare Advocacy, Inc. v. Dep't of Health & Human Servs., 577 F.Supp.2d 221, 241 (D.D.C.2008); see also Carney v. Dep't of Justice, 19 F.3d 807, 815 (2d Cir.1994); Judicial Watch, Inc. v. Dep't of Energy, 310 F.Supp.2d 271, 295 (D.D.C.2004), rev'd in part on other grounds, 412 F.3d 125 (D.C.Cir.2005). Exceptions to this standard of review are made only where information is patently exempt on the face of the request. S. Utah Wilderness Alliance v. Bureau of Land Mgmt., 402 F.Supp.2d 82, 8990 (D.D.C.2005). Because the requested information was not patently exempt from disclosure, CREW's request should have been evaluated on its face. The DOJ's failure to do so was improper, as it based its rejection of CREW's request on the likelihood of later exemptions, a factor not controlling under the terms of FOIA. See Eudey v. CIA, 478 F.Supp. 1175, 1177 (D.D.C.1979) (concluding that the agency's refusal to waive fees was arbitrary and capricious because it was based on an improper consideration of how many documents would ultimately be released). Had CREW's request been properly evaluated on its face, it would have fallen within the statutory requirements of FOIA and DOJ regulations. The DOJ contends that the claim was too ephemeral to be likely to contribute to public understanding. Letter from Melanie Ann Pustay to Ann Weismann (Jan. 19, 2006), attached as Ex. 2(E) to Def.'s Opp'n. However, **given the well-publicized nature of and interest in the reduction of fees in the tobacco litigation, an interest that formed the basis of CREW's request, the contention that *126 information on this issue would inform the public understanding is not such a bare allegation as to warrant rejection by this Court. Moreover, the information was not already publicly available, as made clear by the DOJ's claims of eligibility for exemption. Therefore, the request was in the public interest; and because the information is not in CREW's commercial interest, the request falls within FOIA's fee-waiver provision. And the court stated at p.128, B. Because CREW is requesting information in the public interest that is not in the commercial interest of the requester, it meets the publicinterest requirement of FOIA and is eligible for a fee waiver. FOIA requires each agency to waive or reduce fees for information requested in the public interest that is not primarily in the commercial interest of the requester. 5 U.S.C. 552(a)(4)(A)(iii). DOJ regulations specify the following criteria for determining whether a particular request is in the public interest: **1) whether the subject concerns the operations and activities of the government; **2) the informative value of the requested information; **3) the contribution to a greater understanding by the public; and **4) the significance of that contribution. See 28 C.F.R. 16.11(k)(2)(i-iv). The DOJ has not contested that CREW's request concerns the operations and activities of the government, nor that CREW is capable of contributing to a greater understanding by the public. At issue, then, are the informative value of the requested information and its significance to the public. [8][9][10] Requests based on nothing more than [b]are allegations of malfeasance, unsupported by the evidence, do not have enough informative value to merit a fee waiver. Klein, 2006 WL 1442611, at *4; see also Van

Fripp v. Parks, 2000 U.S. Dist. LEXIS 20158, at *17 (D.D.C. Mar. 15, 2000) (finding that [i]n the absence of independent evidence of misappropriation, the plaintiff's request [was] too ephemeral to compel the public to pay for his request). Actions to be taken by elected officials in the discharge of their , [official writ of possession duties, official asset seizure duties, eviction duties, purchasing duties] official duties, public duties
It is clearly the general rule that a banker or broker may not refuse to answer questions or to produce letters or documents relating to transactions between himself and a customer, where the testimony as to such transactions is material to the issues involved in the pending proceeding, on the ground that communications between him and his customers are confidential and privileged

Interstate Commerce Commission v. Harriman (1908, C. C.) 157 F. 432 (affirmed in part and reversed in part on other grounds in (1908) 211 U.S. 407, 53 L. ed. 253, 29 S. Ct. 115) CUMULATIVE SUPPLEMENT Although Cayman Islands had vital national interest in preserving privacy of its banking customers, Cayman law did not provide blanket guaranty of privacy of those records and Cayman had no strong national policy interests which would be affected by disclosure of defendant bank records in course of prosecution for alleged kickback scheme and, therefore, district court properly ordered defendant to direct Cayman bank to comply with trial subpoena for his bank records. U.S. v. Davis, 767 F.2d 1025, 18 Fed. R. Evid. Serv. 53 (2d Cir. 1985). Financial institutions customers who did not honor Internal Revenue Service tax levy did not have expectation of privacy in their bank records sufficient to warrant protection under Fourth Amendment nor did they have privilege against disclosures under Fifth Amendment. U.S.C.A.Const.Amends. 4, 5. U.S. v. Equitable Trust Co., 524 F. Supp. 1133, 81-2 U.S. Tax Cas. (CCH) P 9759, 49 A.F.T.R.2d 82-484 (D. Md. 1981). **Bank customers could not assert their Fifth Amendment privilege to preclude the bank production of records pertaining to their personal account pursuant to subpoena duces tecum, considering that customers had neither actual nor constructive possession of the records. U.S.C.A. Const.Amend. 5. Rodriguez v. Federal Sav. and Loan Ins. Corp., 712 F. Supp. 159 (N.D. Cal. 1989) N.L.R.B. v. Robbins Tire & Rubber Co., 437 U.S. 214, 242, 98 S.Ct. 2311, (U.S.Ala., Jun 15, 1978) **[5] The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed. 1974 Source Book 38; see also NLRB v. Sears, Roebuck & Co., 421 U.S., at 152, 95 S.Ct., at 1517.

Invasion and undeclared against the People of the United States by the illegal Federal Reserve and its kingpins and associate rackauckas
Judicial Watch, Inc. v. U.S. Dept. of Justice, 122 F.Supp.2d 13, 14, (D.D.C., Oct 02, 2000) Public interest law firm sued **Department of Justice (DOJ) under **Freedom of Information Act (FOIA), challenging DOJ's denial of fee waiver for request concerning United States senator and particular bank. DOJ moved for summary judgment. The District Court, Kennedy, J., held that: (1) firm failed to provide enough specifics about information sought, or how it would contribute to public's understanding, to meet public interest requirement for fee waiver; **(2) generalized pledge to make information available to public failed to meet broad audience of persons component of public interest requirement; and (3) DOJ did not act arbitrarily in categorizing firm as a nonrepresentative of the news media for purposes of fee reduction. Motion granted. [4] Records 326 15

326 Records 326I In General 326k15 k. Making and Use of Copies. Most Cited Cases In seeking fee waiver from Department of Justice (DOJ) for its broad Freedom of Information Act (FOIA) request for materials concerning United States senator, requester's generalized and unsupported assertion that it would allow reporters to inspect documents obtained, produce press releases, and appear on electronic media was insufficiently specific to satisfy DOJ's broad audience of persons component of public -interest prong of fee waiver test. 5 U.S.C.A. 552(a)(4)(A)(iii); 28 C.F.R. 16.11(k)(2)(iii). [5] Records 326 15

326 Records 326I In General 326k15 k. Making and Use of Copies. Most Cited Cases Department of Justice (DOJ) did not act arbitrarily and capriciously in categorizing information requester under Freedom of Information Act (FOIA) as not a representative of the news media for fee reduction purposes; requester identified itself as public interest law firm, rather than entity organized and operated to disseminate news, and simply promised to make information available to public rather than detailing plans for articles, reports, or books. 5 U.S.C.A. 552(a)(4)(A)(ii)(II); 28 C.F.R. 1611(b)(6).

Before the court is DOJ's motion for summary judgment regarding fee issues relative to Judicial Watch's FOIA request including the fee-waiver and fee-categorization determinations. Upon consideration of DOJ's motion, the opposition thereto, and the case record, the court grants the motion. I. FACTUAL BACKGROUND Judicial Watch is a nonprofit, public-interest organization that studies, investigates, and exposes government

corruption via FOIA requests and other legal remedies. On October 19, 1998, Judicial Watch submitted to DOJ a FOIA request seeking: all correspondence, memoranda, documents, records, lists of names, applications, diskettes, letters, expense logs, and receipts, calendar or diary logs, facsimile logs, telephone records, tape recordings, notes, electronic mail, and other documents and things, that refer or relate to the following in any way: ... Senator Orrin Hatch and the Bank of Credit and Commerce International (BCCI).FN2 FN2. Letter of 10/19/1998 (Pl.'s Req.) at 1, Ex. 1 to Def.'s Mot. for Summ. J. (Def.'s Mot.). For purposes of evaluating defendant's motion, the parties' respective statements of material facts are supplemented, where necessary, by information from correspondence between the parties, as submitted to the court. *15 In its request, Judicial Watch also requested a fee waiver or, alternatively, argued for reduced fees as a representative of the news media.

And the court stated at p. 16,

*16 III. ANALYSIS Under FOIA, agencies must charge a reasonable fee for searching, duplicating, and reviewing files.FN10 However, FOIA provides for exceptions which reduce fees for several categories of requesters. FN11 Additionally, FOIA requires agencies to waive the fee if disclosure of the requested information will be in the public interest.FN12 At issue in this summary-judgment motion is: 1) whether the DOJ components properly denied plaintiff's request for a fee waiver, and 2) whether plaintiff qualifies for a fee reduction under the representative of the news media fee category. From its review of the papers, the court concludes there are no genuine issues of material fact, and proceeds to analyze each issue. As a decision in Judicial Watch's favor on the fee-waiver decision would obviate the need to review the fee-category decision, the court first evaluates the former.

And the court stated at p. 16,

2. Fee Waiver Requirements [1] The agency must waive fees if disclosure of the requested information is **1) in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of *17 the government and **2) not primarily in the commercial interest of the requester . FN18 Plaintiff bears the burden to make this showing. FN19 In 1987, DOJ promulgated a six-factor analysis to structure its consideration of the statutory twoprong test.FN20 The first four factors address the public-interest prong, and the latter two factors the commercialinterest prong. FN18. 5 U.S.C.A. 522(a)(4)(A)(iii) (West 1996). FN19. Id.; see also Schrecker v. U.S. Dept. of Justice, 970 F.Supp. 49, 50 (D.D.C.1997) (Lamberth, J.). FN20. See 28 C.F.R. 16.11(k)(2) (1999). (A) Public Interest Prong of the Fee Waiver Test

(1) Operations or Activities of the Government The first factor of the public-interest prong mandates that the subject of the requested records must concern identifiable operations or activities of the federal government, with a connection that is direct and clear, not remote or attenuated. FN21 The requester bears the initial burden of identifying, with reasonable specificity, the public interest to be served. FN22 FN21. See 28 C.F.R. 16.11(k)(2)(i) (1999). FN22. Fitzgibbon v. Agency for Intern. Development, 724 F.Supp. 1048, 1050 (D.D.C.1989). [2] Judicial Watch fails to identify with reasonable specificity which of **the government's operations or **activities its request concerns. It posits two statements that arguably bear on this point. First, it states that it is a non-profit, non-partisan, tax-exempt 501(c)(3) organization which as a public interest law firm specializes in deterring, monitoring, uncovering, and addressing public corruption in government . FN23 Second, it states that [t]he subject of [its] request is information concerning the operations and activities of the government. FN24 FN23. Pl.'s Req. at 3. FN24. Id. at 4. Neither statement proffered by Judicial Watch sufficiently specifies the link between the information requested and the public interest. The first is merely a description of Judicial Watch's organizational mission, and does not remotely identify the public interest served by the specific FOIA request at issue here. The second statement is a conclusory assertion: Judicial Watch inadequately describes the public interest that disclosure of the information would serve. Under FOIA and applicable DOJ regulations, a requester seeking a fee waiver must do more than simply assert that its request somehow relates to government operations.FN25 Thus, Judicial Watch fails to make the required showing under this first factor. FN25. See, e.g., McClellan Ecological Seepage Situation v. Carlucci, 835 F.2d 1282 (9th Cir.1987) (holding that conclusory statements are insufficient to support FOIA fee waiver). (2) Information Likely to Contribute to Public Understanding [3] The second factor requires requested information to be meaningfully informative about government operations or activities in order to be likely to contribute to an increas ed public understanding of those operations or activities. FN26 Courts usually find that information already in the public domain is not likely to contribute to public understanding.FN27 *18 The Schrecker court opined that what is and what is not public domain is not clear. FN28 However, Judicial Watch points to no evidence in the administrative record to clarify what information it seeks. Its request for information about Senator Hatch and [BCCI] is so broad as to make the court's task of determining whether the requested information is already in the public domain impossible. **Though Judicial Watch asserts that the request is likely to contribute significantly to the public's understanding of the operations of the[ ] government, FN29 as discussed supra, such statementswhen unsupported by factsdo not meet the burden placed on fee-waiver requesters. FN26. See 28 C.F.R. 16.11(k)(2)(ii) (1999).

FN27. See McClellan, 835 F.2d at 1286 **(stating that information not previously released has more potential to contribute to the public understanding of government operations); Campbell v. U.S. Dept. of Justice, 164 F.3d 20, 36 (D.C.Cir.1998) (finding only material that has met a threshold level of public dissemination will not further public understanding ); Carney v. U.S. Dept. of Justice, 19 F.3d 807, 814 15 (2d Cir.1994) (stating that the mere fact that particular records have been released to other requesters does not mean that the information contained in the records is readily available to the public, but ** that the relevant inquiry is whether the requester will disseminate the information to a reasonably broad audience of persons interested in the subject). FN28. 970 F.Supp. at 50. FN29. Pl.'s Req. at 4. Judicial Watch further argues that its past success ... in uncovering important facts about government activities, integrity and operations indicates that its present request meets this factor.FN30 Judge Kotelly's reaction to this argument in a recent case rings true here: Judicial Watch's past record in uncovering information is simply irrelevant. FN31 Accordingly, the court finds that Judicial Watch has failed to carry its burden under this factor. FN30. Id. FN31. Judicial Watch v. United States Dept. of Justice, No. 992315, slip op. at 9 (D.D.C. Aug. 17, 2000). (3) Public Understanding

**[4] The third fee-waiver factor requires that disclosure of the requested information contribute to public
understanding. FN32 **Under this factor, [t]he disclosure must contribute to the understanding of a reasonably broad audience of persons interested in the subject, as opposed to the individual understanding of the requester. FN33 **There is a presumption that a member of the news media meets this factor; however, other requesters must substantiate their ability to disseminate information.FN34 Because the court affirms the decision not to classify Judicial Watch as a representative of the news media,FN35 Judicial Watch must affirmatively establish its ability to disseminate requested information. FN32. 28 C.F.R. 16.11(k)(2)(iii) (1999). FN33. Id. FN34. See id. FN35. See infra Section III.B.2. Judicial Watch states in its request letters that it disseminates information by allowing reporters to inspect its documents, producing several press releases per week which are blast faxed to various media outlets, posting press releases, responsive documents, deposition transcripts, and court opinions on its website, and having its employees appear on radio and television programs.FN36

FN36. Pl.'s Req. at 34. These conclusory statementsagain unsupported by specific factsdo not meet Judicial Watch's burden here. Courts have determined that conclusory statements about contributions to public understanding are not enough to satisfy this factor. In Oglesby v. U.S. Dept. of Army, the court of appeals for this circuit found conclusory and insufficient the plaintiff's statement that the information requested is beneficial to the public interest[,] I am a writer and lecturer who has disseminated such information in the past, and I intend to do so in the future . FN37 Similarly, in *19 McClellan, the Court of Appeals for the Ninth Circuit found no reason to conclude that disclosure would contribute to public understanding.FN38 In McClellan, the requesters, a nonprofit association and two of its individual members, asked for broad categories of technical information about water pollution at McClellan Air Force Base.FN39 The court stated: FN37. 920 F.2d 57, 66 (D.C.Cir.1990) (finding that this statement alone was not likely enough to meet his burden, but **a second, more specific statement of particular journals in which the plaintiff had published in the past and which may be forums for his present work may meet the burden). FN38. McClellan, 835 F.2d at 1286. FN39. See id. Even if requesters have the ability to convey information to the public, they give no details about their intention to do so ... requesters do not name a public institution to which they might donate information from the FOIA request. Without more specific information, which was not on the record before the agency, we have no reason to conclude that disclosure of the information will have much significance. FN40 FN40. Id. Taken together, **Oglesby and McClellan indicate that a requester who does not give specifics regarding a method of disseminating requested information will not meet this factor, even if the requester has the ability to disseminate information. Judicial Watch's statements have inadequate factual support in the administrative record and do not satisfy this factor. In Landmark, this court noted that, in addition to disseminating information through blast-faxing, **posting it on the Internet, and **broadcasting it on radio and television stations, the plaintiff intended to use the information to author an op-ed article.FN41 The Landmark plaintiff evidenced its intent to submit the article to news organizations by proffering past newspaper articles which it authored, firmly establishing the plaintiff's contacts to news organizations, and specifying the reason for which it sought information. FN42 In this case, Judicial Watch does not specify in the administrative record any news organization with which it has a relationship, nor does it specify any particular work product for which it requests the information. Judicial Watch's conclusory statement that it has corresponded with members of the media in the past and intends to share information with the media without specifying particular media contacts is not sufficient. Thus, the court concludes that Judicial Watch fails to meet its burden to establish that dissemination of the requested information contributes to public understanding. FN41. Landmark, Civ. No. 971474 at 9.

FN42. See id. (4) Significant Contribution The fourth factor of the fee-waiver analysis requires that the information significantly contribute to public understanding of government operations. FN43 Disclosure of the information should enhance the public's understanding on the subject in question as compared to public understanding prior to disclosure.FN44 FN43. See 28 C.F.R. 16.11(k)(2)(iv) (1999). FN44. See id. Judicial Watch asserts that the information requested here will contribute significantly to the public's understanding of government operations because its past activities have uncovered important facts about the government. Again, Judicial Watch fails to support a bald assertion with factual support. Hence it has not met its burden to establish how information about Senator Hatch and [BCCI] will significantly contribute to the public understanding of government operations.

Citizens for Responsibility and Ethics in Washington v. U.S. Dept. of Justice, 846 F.Supp.2d 63, 67, (D.D.C., Mar 02, 2012) Information that shed light on agency action justifies release of information of bribery investigation against Representative Jerry Lewis Background: Requester brought Freedom of Information Act (FOIA) suit against Department of Justice (DOJ) seeking records relating to the criminal investigation of Congressman for improperly providing earmarks and government contracts to donors. The parties cross-moved for summary judgment. Holdings: The District Court, James E. Boasberg, J., held that: (1) congressman and third parties had cognizable privacy interests in the requested records; (2) there was a significant public interest in the public disclosure of the records; and (3) the balance of interests did not support categorical policy of withholding records. Ordered accordingly. [8] Records 326 58

326 Records 326II Public Access 326II(B) General Statutory Disclosure Requirements 326k53 Matters Subject to Disclosure; Exemptions 326k58 k. Personal privacy considerations in general; personnel matters. Most Cited Cases Records 326 60

326 Records 326II Public Access 326II(B) General Statutory Disclosure Requirements 326k53 Matters Subject to Disclosure; Exemptions 326k60 k. Investigatory or law enforcement records. Most Cited Cases Records 326 64

326 Records 326II Public Access 326II(B) General Statutory Disclosure Requirements 326k61 Proceedings for Disclosure 326k64 k. Discretion and equitable considerations; balancing interests. Most Cited Cases Both Freedom of Information Act (FOIA) exemption for personnel and medical files and similar files if their disclosure would constitute a clearly unwarranted invasion of personal privacy and the FOIA exemption for records compiled for law enforcement purposes to the extent that their disclosure could reasonably be expected to constitute an unwarranted invasion of personal privacy require agencies and reviewing courts to balance the privacy interests that would be compromised by disclosure against the public interest in the release of the requested information. 5 U.S.C.A. 552(b)(6), (b)(7)(C). [15] Records 326 60

326 Records 326II Public Access 326II(B) General Statutory Disclosure Requirements 326k53 Matters Subject to Disclosure; Exemptions 326k60 k. Investigatory or law enforcement records. Most Cited Cases The public's interest in disclosure, for purposes applying Freedom of Information Act (FOIA) exemption for records compiled for law enforcement purposes to the extent that their disclosure could reasonably be expected to constitute an unwarranted invasion of personal privacy, must be assessed in light of FOIA's central purpose, which is to open agency action to the light of public scrutiny. 5 U.S.C.A. 552(b)(7)(C). [16] Records 326 50

326 Records 326II Public Access 326II(B) General Statutory Disclosure Requirements 326k50 k. In general; freedom of information laws in general. Most Cited Cases **Freedom of Information Act (FOIA) is concerned with promoting the citizens' right to be informed about what their government is up to, but the citizen must show that the public interest sought to be advanced is a significant one, an interest more specific than having the information for its own sake. 5 U.S.C.A. 552. [17] Records 326 54

326 Records 326II Public Access 326II(B) General Statutory Disclosure Requirements 326k53 Matters Subject to Disclosure; Exemptions 326k54 k. In general. Most Cited Cases Freedom of Information Act (FOIA) extends only to those records which reveal something about agency action, not to those that concern only the actions of private individuals. 5 U.S.C.A. 552. [18] Records 326 60

326 Records 326II Public Access 326II(B) General Statutory Disclosure Requirements 326k53 Matters Subject to Disclosure; Exemptions 326k60 k. Investigatory or law enforcement records. Most Cited Cases Records 326 64

326 Records 326II Public Access 326II(B) General Statutory Disclosure Requirements 326k61 Proceedings for Disclosure 326k64 k. Discretion and equitable considerations; balancing interests. Most Cited Cases There was a significant public interest in the public disclosure of Department of Justice's (DOJ) criminal investigation into whether congressman improperly provided earmarks and government contracts to donors, for purposes of applying Freedom of Information Act (FOIA) exemption for records compiled for law enforcement purposes to the extent that their disclosure could reasonably be expected to constitute an unwarranted invasion of personal privacy, since disclosure would shed light on the conduct of DOJ and the FBI in conducting the investigation and DOJ's decision to close the investigation without bringing charges. 5 U.S.C.A. 552(a)(4)(A)(iii), (b)(7)(C). [19] Records 326 64

326 Records 326II Public Access 326II(B) General Statutory Disclosure Requirements 326k61 Proceedings for Disclosure 326k64 k. Discretion and equitable considerations; balancing interests. Most Cited Cases The mere fact that records pertain to an individual's activities does not necessarily entail that there is no cognizable public interest in their disclosure and thereby qualify them for an exemption from disclosure under Freedom of Information Act (FOIA); such records may still be cloaked with the public interest if the information would shed light on agency action. 5 U.S.C.A. 552. [20] Records 326 60

326 Records 326II Public Access 326II(B) General Statutory Disclosure Requirements 326k53 Matters Subject to Disclosure; Exemptions 326k60 k. Investigatory or law enforcement records. Most Cited Cases Records 326 64

326 Records 326II Public Access 326II(B) General Statutory Disclosure Requirements 326k61 Proceedings for Disclosure 326k64 k. Discretion and equitable considerations; balancing interests. Most Cited Cases The balance of privacy and public interests did not so characteristically tip in favor of privacy as to justify Department of Justice's (DOJ) categorical policy of withholding records of its criminal investigation into whether Congressman improperly provided earmarks and government contracts to donors, pursuant to Freedom of Information Act (FOIA) exemption for records compiled for law enforcement purposes to the extent that their disclosure could reasonably be expected to constitute an unwarranted invasion of personal privacy, and thus DOJ was required to submit a Vaughn Index to requester; as the investigation into the congressman's activities had been publicly acknowledged, his privacy interests would not be meaningfully impacted by an accounting of the records the DOJ possessed, and the public had a strong interest in the requested records. 5 U.S.C.A. 552(b)(7)(C). MEMORANDUM OPINION JAMES E. BOASBERG, District Judge. On January 24, 2011, Plaintiff **Citizens for Responsibility and Ethics in Washington (CREW) submitted requests under the Freedom of Information Act to the Department of Justice's Criminal Division, Federal Bureau of Investigation, and Executive Office of U.S. Attorneys. CREW sought any records relating to the criminal investigation of Representative Jerry Lewis, a California Congressman who had been investigated in connection with allegations that he had improperly provided earmarks and government contracts to donors. All three DOJ components categorically denied CREW's requests. CREW appealed their denials, but filed a Complaint initiating the instant suit before a decision was rendered. DOJ has now moved for Summary Judgment, asking the Court to uphold its determination that the requested materials are categorically exempt from disclosure under FOIA Exemptions 6 and 7(C). CREW has filed a CrossMotion for Partial Summary Judgment, claiming that, in light of the public interest in how the agency has handled high-profile allegations of public corruption, a categorical denial is not appropriate. After comparing the privacy interests and the public interest at stake in the records at issue, the Court finds that the balance does not so characteristically tip in favor of privacy as to justify DOJ's categorical denial. Although the Government may ultimately be entitled to withhold the majorityor even the entiretyof the requested files, it must provide a legal basis for withholding each responsive document or group of documents.

The Court will, accordingly, deny Defendant's Motion for Summary Judgment, grant Plaintiff's Motion for Partial Summary Judgment, and order that the Government submit a Vaughn Index identifying the documents it has withheld and the legal justifications for having done so. I. Background In mid2006 the media began to report that Representative Jerry Lewis, former chairman and ranking member of the House Appropriations Committee, was the subject of a criminal investigation regarding earmarks and government contracts allegedly provided in exchange for financial contributions. See, e.g., Pl.'s Statement of Undisputed Mat. Facts (SUMF), 2; Pl.'s Mot., Exh. C (Charles Babcock, House Appropriation Chairman Is Facing *68 Federal Investigation, Washington Post, May 12, 2006). Four years later, in December 2010, DOJ announced it had closed its investigation without bringing any charges. See Pl.'s SUMF, 4; Pl.'s Mot., Exh. G (Associated Press, Justice Dep. Ends Inquiry on Politician, N.Y. Times, Dec. 4, 2010). By letters dated January 24, 2011, CREW submitted FOIA requests to three components of DOJthe Criminal Division, the FBI, and EOUSA**for all records related to investigation of Rep. Jerry Lewis (RCA) ... that are not covered by grand jury secrecy pursuant to Rule 6(e) of the Federal Rules of Criminal Procedure, including but not limited to DOJ's decision not to bring criminal charges against him. Def.'s Mot., Exh. A to Decl. of Vinay Jolly (Letter 1 from Adam Rappaport, Jan. 24, 2011) at 1; Pl.'s Mot., Exh. 1 (Letter 2 from Adam Rappaport, Jan. 24, 2011) at 1; Def.'s Mot., Exh. A to Decl. of David Hardy (Letter 3 from Adam Rappaport, Jan. 24, 2011) at 1. CREW contended that it sought those records in order to contribute to greater public awareness of alleged malfeasance and possible criminal behavior by Rep. Lewis and why, despite this apparent malfeasance, DOJ refused to prosecute Rep. Lewis. Rappaport Letter 2, Jan. 24, 2011, at 2. The requested documents, it suggested, would shed light on the conduct of DOJ and the FBI in conducting the investigation of Rep. Lewis, and DOJ's decision to close the investigation without bringing charges against him. Id.qaw2 And the court stated at p. 73, B. The Public's Interest in Disclosure [15][16] Because both Rep. Lewis and other third parties have cognizable privacy interests in DOJ's withholding of the requested documents, the Court will turn to the counterweight: the public's interest in disclosure. This interest must be assessed in light of FOIA's central purpose, which is to open agency action to the light of public scrutiny. Nation Magazine, 71 F.3d at 894 (quoting Rose, 425 U.S. at 372, 96 S.Ct. 1592). The statute is concerned with promoting the citizens' right to be informed about what their government is up to, Reporters Comm., 489 U.S. at 773, 109 S.Ct. 1468, but the citizen must show that the public interest sought to be advanced is a significant one, an interest more specific than having the information for its own sake. Nat'l Archives & Records Admin. v. Favish, 541 U.S. 157, 172, 124 S.Ct. 1570, 158 L.Ed.2d 319 (2004). [17] In Reporters Committee, the Supreme Court explained how this purpose connects to Exemption 7(C):

Official information that sheds light on an agency's performance of its statutory duties falls squarely within that statutory purpose. **That purpose, however, is not fostered by disclosure of information about private citizens that is accumulated in various governmental files but that reveals little or nothing about an agency's own conduct. 489 U.S. at 773, 109 S.Ct. 1468. In other words, **FOIA extends only to those records which reveal something about agency action, not to those that concern only the actions of private individuals. Nation Magazine, 71 F.3d at 894 (emphasis in original). [18][19] [T]he mere fact that records pertain to an individual's activities, however, does not necessarily entail that there is no cognizable public interest in their disclosure and thereby qualify them for an exemption. Id. Such records may still be cloaked with the public interest if the information would shed light on agency action. Id. CREW claims just such a purpose in seeking these records. In its FOIA request CREW maintained that disclosure of the files in question would shed light on the conduct of DOJ and the FBI in conducting the investigation of Rep. Lewis, and DOJ's decision to close the investigation without bringing charges against him. Rappaport Letter 2, Jan. 24, 2011 at 2. Though CREW also noted that it intended the records to contribute to greater public awareness of alleged malfeasance and possible criminal behavior by Rep. Lewis, id., its focus was and remains on the agency's decision not to prosecute him. **[M]atters of substantive law enforcement policy, moreover, are properly the *74 subject of public concern. ACLU, 655 F.3d at 14 (quoting Reporters Comm., 489 U.S. at 766 n. 18, 109 S.Ct. 1468) (internal quotation marks omitted). Rep. Lewis holds public office, and the allegations of corruption against him were significant. Against the backdrop of broader public concerns about the agency's handling of allegations of corruption leveled against high-ranking public officials (especially in the wake of its failure to successfully prosecute Senator Ted Stevens), see, e.g., Pl.'s Reply, Exh. A (Charlie Savage, Justice Dept. Is Criticized as Corruption Cases Close, N.Y. Times, Dec. 20, 2010), **the public has a clear interest in documents concerning DOJ's handling of the Lewis investigation. Such records may contribute significantly to public understanding of the operations or activities of the government. 5 U.S.C. 552(a)(4)(A)(iii). In a very similar case, another court in this District found that the public's interest in disclosure of information concerning DOJ's investigation of a congressman who had been accused of bribery and other illegal conduct was very strong, CREW, 840 F.Supp.2d at 236, 2012 WL 45499, at *9: It is difficult to understand how there could not be a substantial public interest in disclosure of documents regarding the manner in which DOJ handled high profile allegations of public corruption about an elected official. **Clearly, the American public has a right to know about the manner in which its representatives are conducting themselves and whether the government agency responsible for investigating and, if warranted, prosecuting those representatives for alleged illegal conduct is doing its job.

Id. at 234, at *7. The Court thus determined that disclosure of the details of the investigation would unquestionably serve the public's interest. See id. Finally, it is worth clarifying that CREW does not contend that these records will demonstrate agency misconduct. 541 U.S. 157, 124 S.Ct. 1570, 158 L.Ed.2d 319 (2004). In Favish, the Supreme Court suggested that the justification most likely to satisfy Exemption 7(C)'s public interest requirement is that the information is necessary to show the investigative agency or other responsible officials acted negligently or otherwise improperly in the performance of their duties. 541 U.S. at 173, 124 S.Ct. 1570. When this is the public interest being asserted, the Court held that the requester must produce evidence that would warrant a belief by a reasonable person that alleged Government impropriety might have occurred. Id. at 174, 124 S.Ct. 1570. The Court, however, emphasized that it d[id] not in th[at] single decision attempt to define the reasons that will suffice to justify disclosure when the privacy concerns addressed by Exemption 7(C) are present. Id. at 172, 124 S.Ct. 1570. Because CREW has not attempted to justify its request on the ground of agency misconduct (indeed, the decision not to prosecute is a discretionary one), it need not produce the compelling evidence of illegal activity that would be required if it had done so. See Showing Animals Respect & Kindness, 730 F.Supp.2d 180, 195 n. 17 (D.D.C.2010) (Favish evidentiary production not required when Plaintiff does not argue that there was any negligence or misfeasance on the part of government officials); ACLU, 655 F.3d at 14 (evidence of misconduct not required when requester is not (or at least only) seeking to show government policy is legally improper). At the end of the analysis, the Court finds that CREW has articulated a specific and significant public interest in the records in question. *75 C. Balancing the Interests [20] Having found significant interests on both sides of the scale, the Court now steps back to consider, in light of the particular concerns implicated by Exemption 7(C), which way the balance tilts with respect to the documents CREW has requested. Citing a policy of categorically withholding law-enforcement files concerning a third party absent his consent, proof of his death, or a demonstration of an overriding public interest, DOJ has withheld in full the documents CREW seeks. CREW does not challenge that policy per se; indeed, it was recently upheld by another court in this district. See Graff v. FBI, 822 F.Supp.2d 23, 3537 (D.D.C.2011). Instead, it contests the application of that policy to its request here, arguing that it has demonstrated a sufficiently significant public interest in disclosure such that a blanket denial is not appropriate. Even if the balance may favor privacy with respect to some documents or portions of documents in the responsive file, CREW maintains that the Government must provide a Vaughn Index identifying the documents that have been withheld and providing legal justifications for each withholding. [21][22][23] Because the myriad ... considerations involved in the Exemption 7(C) balance defy rigid compartmentalization, per se rules of nondisclosure based upon the type of document requested, the type of individual involved, or the type of activity inquired into, are generally disfavored. Stern, 737 F.2d at 91. In some circumstances, however, [r]ules exempting certain categories of records from disclosure are permitted, even encouraged, as a workable manner of meeting FOIA

obligations. Nation Magazine, 71 F.3d at 893 (citing Reporters Comm., 489 U.S. at 779, 109 S.Ct. 1468). Only when the range of circumstances included in the category characteristically supports an inference that the statutory requirements for exemption are satisfied is such a rule appropriate. Id. (quoting United States v. Landano, 508 U.S. 165, 177, 113 S.Ct. 2014, 124 L.Ed.2d 84 (1993)). To uphold DOJ's categorical denial, therefore, the Court must find that privacy interests in the documents related to Lewis's investigation characteristically outweigh the public's interests in those documents. **They do not. In light of the strong public interest at stake in the requested records, the Court is not persuaded that the balance will favor privacy with respect to each document that concerns the Lewis investigation. In some, perhaps many, instances where a third party asks if an agency has information regarding a named individual in its law enforcement files, the cognizable public interest in that information will be negligible; the requester will be seeking records about a private citizen, not agency conduct. Nation Magazine, 71 F.3d at 895. In such cases and in cases where, conversely, there is only a de minimis privacy interest, it is simple for a court to determine that the records fit a genus in which the balance characteristically tips in one direction. Reporters Comm., 489 U.S. at 776, 109 S.Ct. 1468. Indeed, for this reason the agency's general policy of categorical withholding absent the requester's identification of a significant public interest makes sense. In this case, however, appellants have identified a public interest cognizable under FOIA in disclosure, Nation Magazine, 71 F.3d at 895, and a significant one at that. Where, as here, there are significant interests on both sides of the scale, discerning whether the balance favors privacy with respect to a set of documents the contents of which remain unidentified becomes more difficult. The weights of those interests, furthermore, may vary *76 with respect to each document within the responsive file. Determining whether withholding is justified, therefore, requires a more nuanced analysis than can be undertaken without an account of the records in the Government's possession. The Court is simply not able to come to a conclusion as to the balance between the privacy and public interests at this level of generality. Notably, moreover, this is not a case in which requiring the Government to submit a Vaughn Index might itself adversely affect an individual's interest in not being associated with an investigation in the first place. Because the investigation into Lewis's activities has been publicly acknowledged, his privacy interests would not be meaningfully affected by an accounting of the records the agency possesses. Indeed, the Government has already acknowledged that responsive records exist. See Letter from Rena Kim, Mar. 3, 2011. The Court, therefore, will grant Plaintiff's Partial Motion for Summary Judgment and order that the agency submit a Vaughn Index that identifies each document or group of documents it seeks to withhold, along with a relatively detailed justification for doing so. Mead Data Central, Inc. v. Dep't of the Air Force, 566 F.2d 242, 251 (D.C.Cir.1977) (citing Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir.1972)). [24] It is important, however, to emphasize the limited nature of CREW's success here. The Court does not decide whether the Government need turn over anything at all in response to CREW's request. It may well turn out

that it need not. Indeed, any portions of the requested documents that reveal the names and addresses of private individuals are categorically exempt from disclosure. SafeCard, 926 F.2d at 1205; see also Nation Magazine, 71 F.3d at 896. On the other hand, documents simply assessing, for example, whether or not to seek an indictment may not be covered by Exemptions 6 or 7(C). In sum, the Court at this juncture simply finds that it cannot resolve this dispute at the altitude DOJ desires. The Government must identify the documents in its possession, provide specific justifications for its withholdings, and, consistent with FOIA's mandate that [a]ny reasonably segregable portion of a record shall be provided ... after deletion of the portions which are exempt, 5 U.S.C. 552(b), disclose any non-exempt portions of the requested documents that are not inextricably intertwined with exempt portions. Mead, 566 F.2d at 260. An assessment of the Government's justifications for particular withholdings and CREW's challenges thereto will be for another day.

**27 ALR 4th 742, What Constitutes an Agency Subject to Application of State Freedom of Information Act.
A nongovernmental auxiliary organization is not a "state agency" for purposes of California Public Records Act (CPRA). West's Ann. Cal. Gov. Code 6252(a). California State University v. Superior Court, 90 Cal. App. 4th 810, 108 Cal. Rptr. 2d 870 (5th Dist. 2001).
**Confidentiality of medical information, patient's right to access, see Civil Code 56.28. **Failure to produce medical records, order to show cause, see Code of Civil Procedure 1985.7.

Evidence Code 1158. Inspection and copying of patient's records; authorization; failure to comply; costs Whenever, prior to the filing of any action or the appearance of a defendant in an action, an attorney at law or his or her representative presents a written authorization therefor signed by an adult patient, by the guardian or conservator of his or her person or estate, or, in the case of a minor, by a parent or guardian of the minor, or by the personal representative or an heir of a deceased patient, or a copy thereof, a physician and surgeon, dentist, registered nurse, dispensing optician, registered physical therapist, podiatrist, licensed psychologist, osteopathic physician and surgeon, chiropractor, clinical laboratory bioanalyst, clinical laboratory technologist, or pharmacist or pharmacy, duly licensed as such under the laws of the state, or a licensed hospital, shall make all of the patient's records under his, hers or its custody or control available for inspection and copying by the attorney at law or his, or her, representative, promptly upon the presentation of the written authorization. No copying may be performed by any medical provider or employer enumerated above, or by an agent thereof, when the requesting attorney has employed a professional photocopier or anyone identified in Section 22451 of the Business and Professions Code as his or her representative to obtain or review the records on his or her behalf. The presentation of the authorization by the agent on behalf of the attorney shall be sufficient proof that the agent is the attorney's representative.

Failure to make the records available, during business hours, within five days after the presentation of the written authorization, may subject the person or entity having custody or control of the records to liability for all reasonable expenses, including attorney's fees, incurred in any proceeding to enforce this section. All reasonable costs incurred by any person or entity enumerated above in making patient records available pursuant to this section may be charged against the person whose written authorization required the availability of the records. Reasonable cost, as used in this section, shall include, but not be limited to, the following specific costs: ten cents ($0.10) per page for standard reproduction of documents of a size 8 1/2 by 14 inches or less; twenty cents ($0.20) per page for copying of documents from microfilm; actual costs for the reproduction of oversize documents or the reproduction of documents requiring special processing which are made in response to an authorization; reasonable clerical costs incurred in locating and making the records available to be billed at the maximum rate of sixteen dollars ($16) per hour per person, computed on the basis of four dollars ($4) per quarter hour or fraction thereof; actual postage charges; and actual costs, if any, charged to the witness by a third person for the retrieval and return of records held by that third person. Where the records are delivered to the attorney or the attorney's representative for inspection or photocopying at the record custodian's place of business, the only fee for complying with the authorization shall not exceed fifteen dollars ($15), plus actual costs, if any, charged to the record custodian by a third person for retrieval and return of records held offsite by the third person. 5. Private right of action **Statute providing that medical care providers may charge patients no more than 10 cents per page for copies of patients' medical records was enforceable by way of a private right of action; statute appeared to expressly contemplate direct enforcement by patients, subjecting health care providers to liability for the reasonable expenses, including attorney fees, in any proceeding to enforce the statute. Thornburg v. El Centro Regional Medical Center (App. 4 Dist. 2006) 48 Cal.Rptr.3d 840, 143 Cal.App.4th 198, review denied. Action 3; Health 951
8. Enforcement The remedy for a violation of the statute governing a patient's attorney's request for the patient's records is to bring a proceeding to enforce its requirements. Maher v. County of Alameda (App. 1 Dist. 2014) 168 Cal.Rptr.3d 56, 223 Cal.App.4th 1340. Pretrial Procedure 434

**169 ALR 653, Enforceability by Mandamus of Right to Inspect Public Records.

Government Code Section 6254. Exemption of particular records

Except as provided in Sections 6254.7 and 6254.13, nothing in this chapter shall be construed to require disclosure of records that are any of the following: (a) Preliminary drafts, notes, or interagency or intra-agency memoranda that are not retained by the public agency in the ordinary course of business, if the public interest in withholding those records clearly outweighs the public interest in disclosure. (b) Records pertaining to pending litigation to which the public agency is a party, or to claims made pursuant to Division 3.6 (commencing with Section 810), until the pending litigation or claim has been finally adjudicated or otherwise settled. (c) Personnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy. (d) Contained in or related to any of the following: (1) Applications filed with any state agency responsible for the regulation or supervision of the issuance of securities or of financial institutions, including, but not limited to, banks, savings and loan associations, industrial loan companies, credit unions, and insurance companies. (2) Examination, operating, or condition reports prepared by, on behalf of, or for the use of, any state agency referred to in paragraph (1). (3) Preliminary drafts, notes, or interagency or intra-agency communications prepared by, on behalf of, or for the use of, any state agency referred to in paragraph (1). (4) Information received in confidence by any state agency referred to in paragraph (1). (e) Geological and geophysical data, plant production data, and similar information relating to utility systems development, or market or crop reports, that are obtained in confidence from any person. (f) Records of complaints to, or investigations conducted by, or records of intelligence information or security procedures of, the office of the Attorney General and the Department of Justice, the Office of Emergency Services and any state or local police agency, or any investigatory or security files compiled by any other state or local police agency, or any investigatory or security files compiled by any other state or local agency for correctional, law enforcement, or licensing purposes. However, state and local law enforcement agencies shall disclose the names and addresses of persons involved in, or witnesses other than confidential informants to, the incident, the description of any property involved, the date, time, and location of the incident, all diagrams, statements of the parties involved in the incident, the statements of all witnesses, other than confidential informants, to the victims of an incident, or an authorized representative thereof, an insurance carrier against which a claim has been or might be made, and any person suffering bodily injury or property damage or loss, as the result of the incident caused by arson, burglary, fire, explosion, larceny, robbery, carjacking, vandalism, vehicle theft, or a crime as defined by subdivision (b) of Section 13951, unless the disclosure would endanger the safety of a witness or other person involved in the investigation, or

unless disclosure would endanger the successful completion of the investigation or a related investigation. However, nothing in this division shall require the disclosure of that portion of those investigative files that reflects the analysis or conclusions of the investigating officer. Customer lists provided to a state or local police agency by an alarm or security company at the request of the agency shall be construed to be records subject to this subdivision. Notwithstanding any other provision of this subdivision, state and local law enforcement agencies shall make public the following information, except to the extent that disclosure of a particular item of information would endanger the safety of a person involved in an investigation or would endanger the successful completion of the investigation or a related investigation: (1) The full name and occupation of every individual arrested by the agency, the individual's physical description including date of birth, color of eyes and hair, sex, height and weight, the time and date of arrest, the time and date of booking, the location of the arrest, the factual circumstances surrounding the arrest, the amount of bail set, the time and manner of release or the location where the individual is currently being held, and all charges the individual is being held upon, including any outstanding warrants from other jurisdictions and parole or probation holds. (2) Subject to the restrictions imposed by Section 841.5 of the Penal Code, the time, substance, and location of all complaints or requests for assistance received by the agency and the time and nature of the response thereto, including, to the extent the information regarding crimes alleged or committed or any other incident investigated is recorded, the time, date, and location of occurrence, the time and date of the report, the name and age of the victim, the factual circumstances surrounding the crime or incident, and a general description of any injuries, property, or weapons involved. The name of a victim of any crime defined by Section 220, 236.1, 261, 261.5, 262, 264, 264.1, 265, 266, 266a, 266b, 266c, 266e, 266f, 266j, 267, 269, 273a, 273d, 273.5, 285, 286, 288, 288a, 288.2, 288.3 (as added by Chapter 337 of the Statutes of 2006), 288.3 (as added by Section 6 of Proposition 83 of the November 7, 2006, statewide general election), 288.5, 288.7, 289, 422.6, 422.7, 422.75, 646.9, or 647.6 of the Penal Code may be withheld at the victim's request, or at the request of the victim's parent or guardian if the victim is a minor. When a person is the victim of more than one crime, information disclosing that the person is a victim of a crime defined in any of the sections of the Penal Code set forth in this subdivision may be deleted at the request of the victim, or the victim's parent or guardian if the victim is a minor, in making the report of the crime, or of any crime or incident accompanying the crime, available to the public in compliance with the requirements of this paragraph. (3) Subject to the restrictions of Section 841.5 of the Penal Code and this subdivision, the current address of every individual arrested by the agency and the current address of the victim of a crime, where the requester declares under penalty of perjury that the request is made for a scholarly, journalistic, political, or governmental purpose, or that the request is made for investigation purposes by a licensed private investigator as described in Chapter 11.3 (commencing with Section 7512) of Division 3 of the Business and Professions Code. However, the address of the victim of any crime defined by Section 220, 236.1, 261, 261.5, 262, 264, 264.1, 265, 266, 266a, 266b, 266c, 266e, 266f, 266j, 267, 269, 273a, 273d, 273.5, 285, 286, 288, 288a, 288.2, 288.3 (as added by Chapter 337 of the Statutes of 2006), 288.3 (as added by Section 6 of Proposition 83 of the November 7, 2006, statewide general election), 288.5, 288.7, 289, 422.6, 422.7, 422.75, 646.9, or 647.6 of the Penal Code shall remain confidential. Address information obtained pursuant to this paragraph may not be used directly or indirectly, or furnished to another, to sell a product or service to any individual or group of individuals, and the requester shall execute a declaration to that effect under penalty of perjury. Nothing in this paragraph shall be construed to prohibit or limit a scholarly,

journalistic, political, or government use of address information obtained pursuant to this paragraph. (g) Test questions, scoring keys, and other examination data used to administer a licensing examination, examination for employment, or academic examination, except as provided for in Chapter 3 (commencing with Section 99150) of Part 65 of Division 14 of Title 3 of the Education Code. (h) The contents of real estate appraisals or engineering or feasibility estimates and evaluations made for or by the state or local agency relative to the acquisition of property, or to prospective public supply and construction contracts, until all of the property has been acquired or all of the contract agreement obtained. However, the law of eminent domain shall not be affected by this provision. (i) Information required from any taxpayer in connection with the collection of local taxes that is received in confidence and the disclosure of the information to other persons would result in unfair competitive disadvantage to the person supplying the information. (j) Library circulation records kept for the purpose of identifying the borrower of items available in libraries, and library and museum materials made or acquired and presented solely for reference or exhibition purposes. The exemption in this subdivision shall not apply to records of fines imposed on the borrowers. (k) Records, the disclosure of which is exempted or prohibited pursuant to federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege. (l) Correspondence of and to the Governor or employees of the Governor's office or in the custody of or maintained by the Governor's Legal Affairs Secretary. However, public records shall not be transferred to the custody of the Governor's Legal Affairs Secretary to evade the disclosure provisions of this chapter. (m) In the custody of or maintained by the Legislative Counsel, except those records in the public database maintained by the Legislative Counsel that are described in Section 10248. (n) Statements of personal worth or personal financial data required by a licensing agency and filed by an applicant with the licensing agency to establish his or her personal qualification for the license, certificate, or permit applied for. (o) Financial data contained in applications for financing under Division 27 (commencing with Section 44500) of the Health and Safety Code, where an authorized officer of the California Pollution Control Financing Authority determines that disclosure of the financial data would be competitively injurious to the applicant and the data is required in order to obtain guarantees from the United States Small Business Administration. The California Pollution Control Financing Authority shall adopt rules for review of individual requests for confidentiality under this section and for making available to the public those portions of an application that are subject to disclosure under this chapter. (p) Records of state agencies related to activities governed by Chapter 10.3 (commencing with Section 3512), Chapter 10.5 (commencing with Section 3525), and Chapter 12 (commencing with Section 3560) of Division 4, that reveal a state agency's deliberative processes, impressions, evaluations, opinions, recommendations, meeting minutes, research, work products, theories, or strategy, or that provide instruction, advice, or training to employees

who do not have full collective bargaining and representation rights under these chapters. Nothing in this subdivision shall be construed to limit the disclosure duties of a state agency with respect to any other records relating to the activities governed by the employee relations acts referred to in this subdivision. (q)(1) Records of state agencies related to activities governed by Article 2.6 (commencing with Section 14081), Article 2.8 (commencing with Section 14087.5), and Article 2.91 (commencing with Section 14089) of Chapter 7 of Part 3 of Division 9 of the Welfare and Institutions Code, that reveal the special negotiator's deliberative processes, discussions, communications, or any other portion of the negotiations with providers of health care services, impressions, opinions, recommendations, meeting minutes, research, work product, theories, or strategy, or that provide instruction, advice, or training to employees. (2) Except for the portion of a contract containing the rates of payment, contracts for inpatient services entered into pursuant to these articles, on or after April 1, 1984, shall be open to inspection one year after they are fully executed. If a contract for inpatient services that is entered into prior to April 1, 1984, is amended on or after April 1, 1984, the amendment, except for any portion containing the rates of payment, shall be open to inspection one year after it is fully executed. If the California Medical Assistance Commission enters into contracts with health care providers for other than inpatient hospital services, those contracts shall be open to inspection one year after they are fully executed. (3) Three years after a contract or amendment is open to inspection under this subdivision, the portion of the contract or amendment containing the rates of payment shall be open to inspection. (4) Notwithstanding any other provision of [FN1] law, the entire contract or amendment shall be open to inspection by the Joint Legislative Audit Committee and the Legislative Analyst's Office. The committee and that office shall maintain the confidentiality of the contracts and amendments until the time a contract or amendment is fully open to inspection by the public. (r) Records of Native American graves, cemeteries, and sacred places and records of Native American places, features, and objects described in Sections 5097.9 and 5097.993 of the Public Resources Code maintained by, or in the possession of, the Native American Heritage Commission, another state agency, or a local agency. (s) A final accreditation report of the Joint Commission on Accreditation of Hospitals that has been transmitted to the State Department of Health Care Services pursuant to subdivision (b) of Section 1282 of the Health and Safety Code. (t) Records of a local hospital district, formed pursuant to Division 23 (commencing with Section 32000) of the Health and Safety Code, or the records of a municipal hospital, formed pursuant to Article 7 (commencing with Section 37600) or Article 8 (commencing with Section 37650) of Chapter 5 of Part 2 of Division 3 of Title 4 of this code, that relate to any contract with an insurer or nonprofit hospital service plan for inpatient or outpatient services for alternative rates pursuant to Section 10133 of the Insurance Code. However, the record shall be open to inspection within one year after the contract is fully executed. (u)(1) Information contained in applications for licenses to carry firearms issued pursuant to Section 26150, 26155, 26170, or 26215 of the Penal Code by the sheriff of a county or the chief or other head of a municipal police department that indicates when or where the applicant is vulnerable to attack or that concerns the applicant's medical

or psychological history or that of members of his or her family. (2) The home address and telephone number of prosecutors, public defenders, peace officers, judges, court commissioners, and magistrates that are set forth in applications for licenses to carry firearms issued pursuant to Section 26150, 26155, 26170, or 26215 of the Penal Code by the sheriff of a county or the chief or other head of a municipal police department. (3) The home address and telephone number of prosecutors, public defenders, peace officers, judges, court commissioners, and magistrates that are set forth in licenses to carry firearms issued pursuant to Section 26150, 26155, 26170, or 26215 of the Penal Code by the sheriff of a county or the chief or other head of a municipal police department. (v)(1) Records of the Managed Risk Medical Insurance Board and the State Department of Health Care Services related to activities governed by Part 6.3 (commencing with Section 12695), Part 6.5 (commencing with Section 12700), Part 6.6 (commencing with Section 12739.5), and Part 6.7 (commencing with Section 12739.70) of Division 2 of the Insurance Code, and Chapter 2 (commencing with Section 15850) of Part 3.3 of Division 9 of the Welfare and Institutions Code, and that reveal any of the following: (A) The deliberative processes, discussions, communications, or any other portion of the negotiations with entities contracting or seeking to contract with the board or the department, entities with which the board or the department is considering a contract, or entities with which the board is considering or enters into any other arrangement under which the board or the department provides, receives, or arranges services or reimbursement. (B) The impressions, opinions, recommendations, meeting minutes, research, work product, theories, or strategy of the board or its staff or the department or its staff, or records that provide instructions, advice, or training to their employees. (2)(A) Except for the portion of a contract that contains the rates of payment, contracts entered into pursuant to Part 6.3 (commencing with Section 12695), Part 6.5 (commencing with Section 12700), Part 6.6 (commencing with Section 12739.5), or Part 6.7 (commencing with Section 12739.70) of Division 2 of the Insurance Code, or Chapter 2.2 (commencing with Section 15850) of Part 3.3 of Division 9 of the Welfare and Institutions Code, on or after July 1, 1991, shall be open to inspection one year after their effective dates. (B) If a contract that is entered into prior to July 1, 1991, is amended on or after July 1, 1991, the amendment, except for any portion containing the rates of payment, shall be open to inspection one year after the effective date of the amendment. (3) Three years after a contract or amendment is open to inspection pursuant to this subdivision, the portion of the contract or amendment containing the rates of payment shall be open to inspection. (4) Notwithstanding any other law, the entire contract or amendments to a contract shall be open to inspection by the Joint Legislative Audit Committee. The committee shall maintain the confidentiality of the contracts and amendments thereto, until the contracts or amendments to the contracts are open to inspection pursuant to paragraph (3).

(w)(1) Records of the Managed Risk Medical Insurance Board related to activities governed by Chapter 8 (commencing with Section 10700) of Part 2 of Division 2 of the Insurance Code, and that reveal the deliberative processes, discussions, communications, or any other portion of the negotiations with health plans, or the impressions, opinions, recommendations, meeting minutes, research, work product, theories, or strategy of the board or its staff, or records that provide instructions, advice, or training to employees. (2) Except for the portion of a contract that contains the rates of payment, contracts for health coverage entered into pursuant to Chapter 8 (commencing with Section 10700) of Part 2 of Division 2 of the Insurance Code, on or after January 1, 1993, shall be open to inspection one year after they have been fully executed. (3) Notwithstanding any other law, the entire contract or amendments to a contract shall be open to inspection by the Joint Legislative Audit Committee. The committee shall maintain the confidentiality of the contracts and amendments thereto, until the contracts or amendments to the contracts are open to inspection pursuant to paragraph (2). (x) Financial data contained in applications for registration, or registration renewal, as a service contractor filed with the Director of Consumer Affairs pursuant to Chapter 20 (commencing with Section 9800) of Division 3 of the Business and Professions Code, for the purpose of establishing the service contractor's net worth, or financial data regarding the funded accounts held in escrow for service contracts held in force in this state by a service contractor. (y)(1) Records of the Managed Risk Medical Insurance Board related to activities governed by Part 6.2 (commencing with Section 12693) or Part 6.4 (commencing with Section 12699.50) of Division 2 of the Insurance Code, and that reveal any of the following: (A) The deliberative processes, discussions, communications, or any other portion of the negotiations with entities contracting or seeking to contract with the board, entities with which the board is considering a contract, or entities with which the board is considering or enters into any other arrangement under which the board provides, receives, or arranges services or reimbursement. (B) The impressions, opinions, recommendations, meeting minutes, research, work product, theories, or strategy of the board or its staff, or records that provide instructions, advice, or training to employees. (2)(A) Except for the portion of a contract that contains the rates of payment, contracts entered into pursuant to Part 6.2 (commencing with Section 12693) or Part 6.4 (commencing with Section 12699.50) of Division 2 of the Insurance Code, on or after January 1, 1998, shall be open to inspection one year after their effective dates. (B) If a contract entered into pursuant to Part 6.2 (commencing with Section 12693) or Part 6.4 (commencing with Section 12699.50) of Division 2 of the Insurance Code is amended, the amendment shall be open to inspection one year after the effective date of the amendment. (3) Three years after a contract or amendment is open to inspection pursuant to this subdivision, the portion of the contract or amendment containing the rates of payment shall be open to inspection. (4) Notwithstanding any other law, the entire contract or amendments to a contract shall be open to inspection by the Joint Legislative Audit Committee. The committee shall maintain the confidentiality of the contracts and

amendments thereto until the contract or amendments to a contract are open to inspection pursuant to paragraph (2) or (3). (5) The exemption from disclosure provided pursuant to this subdivision for the contracts, deliberative processes, discussions, communications, negotiations, impressions, opinions, recommendations, meeting minutes, research, work product, theories, or strategy of the board or its staff shall also apply to the contracts, deliberative processes, discussions, communications, negotiations, impressions, opinions, recommendations, meeting minutes, research, work product, theories, or strategy of applicants pursuant to Part 6.4 (commencing with Section 12699.50) of Division 2 of the Insurance Code. (z) Records obtained pursuant to paragraph (2) of subdivision (f) of Section 2891.1 of the Public Utilities Code. (aa) A document prepared by or for a state or local agency that assesses its vulnerability to terrorist attack or other criminal acts intended to disrupt the public agency's operations and that is for distribution or consideration in a closed session. (ab) Critical infrastructure information, as defined in Section 131(3) of Title 6 of the United States Code, that is voluntarily submitted to the California Emergency Management Agency [FN2] for use by that office, including the identity of the person who or entity that voluntarily submitted the information. As used in this subdivision, voluntarily submitted means submitted in the absence of the office exercising any legal authority to compel access to or submission of critical infrastructure information. This subdivision shall not affect the status of information in the possession of any other state or local governmental agency. (ac) All information provided to the Secretary of State by a person for the purpose of registration in the Advance Health Care Directive Registry, except that those records shall be released at the request of a health care provider, a public guardian, or the registrant's legal representative. (ad) The following records of the State Compensation Insurance Fund: (1) Records related to claims pursuant to Chapter 1 (commencing with Section 3200) of Division 4 of the Labor Code, to the extent that confidential medical information or other individually identifiable information would be disclosed. (2) Records related to the discussions, communications, or any other portion of the negotiations with entities contracting or seeking to contract with the fund, and any related deliberations. (3) Records related to the impressions, opinions, recommendations, meeting minutes of meetings or sessions that are lawfully closed to the public, research, work product, theories, or strategy of the fund or its staff, on the development of rates, contracting strategy, underwriting, or competitive strategy pursuant to the powers granted to the fund in Chapter 4 (commencing with Section 11770) of Part 3 of Division 2 of the Insurance Code. (4) Records obtained to provide workers' compensation insurance under Chapter 4 (commencing with Section 11770) of Part 3 of Division 2 of the Insurance Code, including, but not limited to, any medical claims information, policyholder information provided that nothing in this paragraph shall be interpreted to prevent an insurance agent or broker from obtaining proprietary information or other information authorized by law to be obtained by the agent

or broker, and information on rates, pricing, and claims handling received from brokers. (5)(A) Records that are trade secrets pursuant to Section 6276.44, or Article 11 (commencing with Section 1060) of Chapter 4 of Division 8 of the Evidence Code, including without limitation, instructions, advice, or training provided by the State Compensation Insurance Fund to its board members, officers, and employees regarding the fund's special investigation unit, internal audit unit, and informational security, marketing, rating, pricing, underwriting, claims handling, audits, and collections. (B) Notwithstanding subparagraph (A), the portions of records containing trade secrets shall be available for review by the Joint Legislative Audit Committee, the Bureau of State Audits, Division of Workers' Compensation, and the Department of Insurance to ensure compliance with applicable law. (6)(A) Internal audits containing proprietary information and the following records that are related to an internal audit: (i) Personal papers and correspondence of any person providing assistance to the fund when that person has requested in writing that his or her papers and correspondence be kept private and confidential. Those papers and correspondence shall become public records if the written request is withdrawn, or upon order of the fund. (ii) Papers, correspondence, memoranda, or any substantive information pertaining to any audit not completed or an internal audit that contains proprietary information. (B) Notwithstanding subparagraph (A), the portions of records containing proprietary information, or any information specified in subparagraph (A) shall be available for review by the Joint Legislative Audit Committee, the Bureau of State Audits, Division of Workers' Compensation, and the Department of Insurance to ensure compliance with applicable law. (7)(A) Except as provided in subparagraph (C), contracts entered into pursuant to Chapter 4 (commencing with Section 11770) of Part 3 of Division 2 of the Insurance Code shall be open to inspection one year after the contract has been fully executed. (B) If a contract entered into pursuant to Chapter 4 (commencing with Section 11770) of Part 3 of Division 2 of the Insurance Code is amended, the amendment shall be open to inspection one year after the amendment has been fully executed. (C) Three years after a contract or amendment is open to inspection pursuant to this subdivision, the portion of the contract or amendment containing the rates of payment shall be open to inspection. (D) Notwithstanding any other law, the entire contract or amendments to a contract shall be open to inspection by the Joint Legislative Audit Committee. The committee shall maintain the confidentiality of the contracts and amendments thereto until the contract or amendments to a contract are open to inspection pursuant to this paragraph. (E) This paragraph is not intended to apply to documents related to contracts with public entities that are not otherwise expressly confidential as to that public entity.

(F) For purposes of this paragraph, fully executed means the point in time when all of the necessary parties to the contract have signed the contract. This section shall not prevent any agency from opening its records concerning the administration of the agency to public inspection, unless disclosure is otherwise prohibited by law. This section shall not prevent any health facility from disclosing to a certified bargaining agent relevant financing information pursuant to Section 8 of the National Labor Relations Act (29 U.S.C. Sec. 158). 29. Arrest records or complaint reports--In general

**Provisions of Public Records Act requiring disclosure of arrest information cannot be construed to require disclosure of sensitive information contained in records relating to allegations of police misconduct, since detailed and careful procedures set out in other statutes for disclosure of such information only upon showing of manifest necessity would be nullified. County of Los Angeles v. Superior Court (App. 2 Dist. 1993) 22 Cal.Rptr.2d 409, 18 Cal.App.4th 588. Records 60

**Where discovery of names and addresses of persons who had lodged complaints against police officers and witnesses to such events had proved inadequate the defendant, who was charged with battery of such officers and whose defense was that he had been assaulted by the officers, was entitled to discovery of the complaints. People v. Matos (App. 2 Dist. 1979) 155 Cal.Rptr. 293, 92 Cal.App.3d 862. Criminal Law 627.6(1)

Pen.C. 11120 to 11127 dealing with access of private individuals to their state arrest records constituted special legislation and took precedence over any general legislation such as Public Records Act ( 6250 et seq.). Younger v. Berkeley City Council (App. 1 Dist. 1975) 119 Cal.Rptr. 830, 45 Cal.App.3d 825. Criminal Law 1226(2)

Records_public_access_gen_stat_discl_requirem_agencies_custodians_affected _ca_all_digest.doc
[Cited 2 times for this legal issue]

**California State University v. Superior Court, 108 Cal.Rptr.2d 870

Cal.App.5.Dist.,2001 Non-governmental association, which was a nonprofit auxiliary corporation affiliated with state university, and which operated multi-purpose arena being built on university campus, was not a state agency, for purposes of California Public Records Act (CPRA), and thus could not be compelled under CPRA to disclose documents revealing identities of individuals and/or companies that had purchased luxury suites in arena. West's Ann.Cal.Gov.Code 6252(a) .See publication Words and Phrases for other judicial constructions and definitions.