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Prison Legal News v. Lappin, Freedom of Information Act BOP lawsuit ruling ordering fee waiver. 2006.

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As of: Jan 04, 2007
Civil Action No. 05-1812 (RBW)
436 F. Supp. 2d 17; 2006 U.S. Dist. LEXIS 42738
June 26, 2006, Decided
thorities in Support of Defendant's Motion for
Summary Judgment ("Def.'s Mem."); (2) the
Plaintiff's Opposition to Defendant's Motion for
Summary Judgment and Cross Motion for Summary Judgment ("Pl.'s Opp'n"); (3) the Defendant's Reply to Plaintiff's Opposition to Defendant's Motion for Summary Judgment and Opposition to Plaintiff's Cross Motion for Summary
Judgment ("Def.'s Reply"); and (4) the Plaintiff's
Reply to Defendant's Opposition to Plaintiff's
Cross Motion for Summary Judgment ("Pl.'s Reply").

P.C., Washington, DC.
For HARLEY G. LAPPIN, Director FEDERAL BUREAU OF PRISONS, Defendant: Wyneva Johnson, U.S.
JUDGES: REGGIE B. WALTON, United States District Judge.
The plaintiff, Prison Legal News ("PLN"), brings
this action challenging the [*19] Federal Bureau of
Prison's ("BOP") refusal to grant a waiver of all search
and duplication fees associated with a document request
made under the Freedom of Information Act ("FOIA"), 5
U.S.C. § 552 (2000). Complaint for Declaratory and
Injunctive Relief ("Compl.") P P B, C. Currently before
the Court are the parties' cross-motions for summary
judgment directed to the propriety of the BOP's waiver
denial. n1 For the reasons set forth below, this Court will
grant the plaintiff's motion for summary judgment and
deny the defendant's motion for summary judgment.

n1 The following papers have been submitted in connection with these motions: (1) Defendant's Motion for Summary Judgment ("Def.'s
Mot.") and its Memorandum of Points and Au-

I. Background
PLN is a legal journal devoted to reporting news and
litigation concerning detention facilities. Compl. P 5. On
August 6, 2003, PLN submitted a FOIA request to the
BOP seeking "a copy of all documents showing all
money paid by the [BOP] for lawsuits and claims against
it" between January 1, 1996 and July 31, 2003. Pl.'s Opp'n, Ex. 1. Specifically, PLN sought "a copy of the verdict, settlement or claim in each case showing the dollar
amount paid, the identity of the plaintiff/claimant and the
legal identifying information for each lawsuit or claim or
attorney fee award" and "a copy of the complaint . . . or
the claim . . . in each incident which describes the facts
underlying each lawsuit and claim." Id. Additionally,
PLN requested a waiver of all fees associated with processing the request and providing it with copies of the
responsive documents. Id.
Under the FOIA, fees will be waived if "disclosure
of the information is in the public interest because it is
likely to contribute significantly to public understanding

Page 2
436 F. Supp. 2d 17, *; 2006 U.S. Dist. LEXIS 42738, **

of the operations or activities of the government and is
not primarily in the commercial interest of the requester."
5 U.S.C. § 552(a)(4)(A)(iii) [**3] . To support its request for a fee waiver, PLN provided the following information in its letter to the BOP:

PLN is a § 501[c](3) non-profit organization. We are a serious legal and political
journal that reports on news and litigation
involving detention facilities. We have
published monthly since 1990 and currently have around 3,400 subscribers in all
50 states. We [e] stimate our actual readership to [be] in the range of 18,000 people. We believe that the requested documents will shed light on the operations of
the BOP and help provide the public with
a better understanding of how the nation's
prison system is run and managed since
damage verdicts and settlements are an
important means of measuring respect for
constitutional rights within penal facilities. Moreover, the payout of government
money is a strong indicator to tax payers
of how government facilities are operated.
The information requested is plainly related to the operations and activities of the

the intent and the ability to disseminate the requested
records to the general public. [**5] " Id. To support this
conclusion, the OIP noted that posting information on a
website does not, by itself, demonstrate that information
will be communicated to the public. Id. Moreover, the
OIP concluded that the PLN newsletter was also an insufficient vehicle for distributing information because
the PLN website did not contain current copies of the
publication. Id. Second, the OIP noted that some of the
requested documents, namely complaints and verdicts,
were publicly available. Id. Thus, the OIP concluded that
"the level of the public's understanding would not be
enhanced" by the release of information to which it already had access. Id.

n2 In its rejection letter to PLN, Pl.'s Opp'n,
Ex. 2, the BOP informed PLN that they could appeal the decision to the OIP pursuant to 28 C.F.R.
§ 16.9. However, the regulation cited in this
opinion is the correct provision.
On September 13, 2005, PLN filed this action seeking declaratory and injunctive relief and an order compelling [**6] the defendants to provide it with all documents responsive to its FOIA requests without any cost.
Compl. at 1. Both parties have now filed motions for
summary judgment. These motions are the subject of this
II. Standard of Review

Pl.'s Opp'n, Ex. 1. PLN also made clear that, once produced, it would analyze and publish the requested information both in its magazine and on its website. Id. In a
[*20] letter dated September 9, 2003, the [**4] BOP
denied the fee waiver request because in the BOP's view
the PLN request did not "explain how [the requested
documents] would be of public interest." Pl.'s Opp'n, Ex.
2. That same letter notified PLN that the estimated cost
of accommodating the request was $ 6,944.00 plus copying fees, but this fee could likely be reduced if PLN reformulated its request. Id.
PLN appealed the BOP's decision to the United
States Department of Justice's Office of Information and
Privacy ("OIP") pursuant to 28 C.F.R. § 701.16(a)
(2000). n2 Pl.'s Opp'n, Ex. 3. In a letter to the OIP dated
October 20, 2003, PLN reasserted that the "public is
greatly interested in the amount and manner in which
their tax money is spent" and that "[m] edia review of
government agency pay outs in litigation is a standard
journalistic practice." Pl.'s Opp'n, Ex. 3. Nevertheless, on
May 23, 2005, the OIP concluded that PLN's request for
a fee waiver had been properly denied. Pl.'s Opp'n, Ex. 4.
The OIP based its denial on two factors. First, the OIP
found that PLN had not "demonstrated that it has both

A motion for summary judgment under Rule 56(c)
will be granted if "the pleadings, depositions, answers to
interrogatories and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as
to any material fact and that the moving party is entitled
to judgment as a matter of law." Fed. R. Civ. P. 56(c).
When ruling on a motion for summary judgment, courts
must view the evidence in the light most favorable to the
non-moving party. Bayer v. Dep't of Treasury, 294 U.S.
App. D.C. 44, 956 F.2d 330, 333 (D.C. Cir. 1992). However, the non-moving party cannot rely on "mere allegations or denials ...but ...must set forth specific facts
showing that there are genuine issues for trial." Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct.
2505, 91 L. Ed. 2d 202 (1986) (citation and internal quotation marks omitted).
III. Legal Analysis [**7]
The Court is presented with two issues in resolving
the motions before it. First, the Court must determine
who is the proper defendant in this action. Def.'s Mem. at
5. And, second, the Court must address whether the OIP
properly denied the PLN [*21] request for a fee waiver.
The Court will address each question in turn.

Page 3
436 F. Supp. 2d 17, *; 2006 U.S. Dist. LEXIS 42738, **

(A) Who is the Proper Defendant?
The defendant claims that the Department of Justice
("DOJ") is the only proper defendant in this FOIA action.
Def.'s Mem. at 5. Specifically, the defendant argues that
because the BOP is a component of the DOJ it does not
qualify as an "agency" under 5 U.S.C. § 552(f), and
therefore, because the DOJ was not named as a defendant, this case should be dismissed. Id. Before confronting that question, the Court must first determine who the
plaintiff has named as the defendant. The caption of the
plaintiff's complaint lists as the defendant "Harley G.
Compl. at 1. The caption would seem to indicate that
Harley Lappin is being sued in his official capacity. The
text of the complaint, however, asserts a claim against
the BOP. Compl. PP 3, A-C. On the other hand, [**8]
the plaintiff's pleadings filed in connection with the motions currently before the Court identify Director Lappin
as the intended defendant. Pl.'s Opp'n at 9. The plaintiff
does not appear to recognize that the two are not interchangeable and that only an agency can be a defendant in
a FOIA action. See Jefferson v. Reno, 123 F. Supp. 2d 1,
3 (D.D.C. 2000) (stating that under the FOIA, it is the
agency's responsibility to produce the requested documents, and not the responsibility of an individual employee); Astley v. Lawson, 1991 U.S. Dist. LEXIS
21611, No. 89-2806, 1991 WL 7162, at *9 (D.D.C. Jan.
11, 1991) ("[T] he only proper defendants in a FOIA
action are the agencies that allegedly improperly withheld documents."); Whittle v. Moschelle, 756 F. Supp.
589, 596 (D.D.C. 1991) (citing Petrus v. Bowen, 833
F.2d 581, 583 (5th Cir. 1987) (holding that the Court's
jurisdiction is "limited to enjoining agency noncompliance, § 552(a)(4)(B), and consequently no [FOIA] claim
may be asserted . . . against individual federal officials");
Sherwood Van Lines v. Dep't of Navy, 732 F. Supp. 240,
241 (D.D.C. 1990) ("The plain language [**9] of the
statute does not create a cause of action against individual employees of the federal agency."). Despite the inconsistencies in the plaintiff's papers, this Court must
conclude that the named defendant in this action is the
BOP, as designated in the text of the complaint. Compl.
PP 3, A-C.
This Court now must determine whether the BOP is
the proper defendant, or whether this action should have
been commenced against the DOJ. The papers submitted
by the parties provide only minimal guidance on this
important issue. In fact, the defendant has offered no
case authority in support of its position, and the cases
cited by the plaintiff provide little useful assistance.
Def.'s Mem. at 5-6; Pl.'s Opp'n at 9-10. Under the FOIA,
this Court has the power "to enjoin [an] agency from
withholding agency records and to order the production

of any agency record improperly withheld." 5 U.S.C. §
552(a)(4)(B) (emphasis added). There appears to be
some disagreement in this Circuit regarding what constitutes an "agency" as it pertains to the District Court's
jurisdiction pursuant to the FOIA. Compare Lair v. Dep't
of Treasury, 2005 U.S. Dist. LEXIS 4645, No. 03-827,
2005 WL 645228, [**10] at *3 (D.D.C. Mar. 21, 2005)
(holding that naming component agencies as the defendant is proper because an agency "need not be a cabinetlevel agency" under the FOIA), with Brooks v. Bureau of
Prisons, 2005 U.S. Dist. LEXIS 4454, No. 04-0055, 2005
WL 623229, at *2 (D.D.C. Mar. 17, 2005) (holding that
only cabinet-level agencies are proper defendants in
FOIA actions).
The FOIA incorporates as part of its definition of the
term "agency" the definition [*22] found in the Administrative Procedure Act ("APA"), 5 U.S.C. § 551(1)
(2000). Cotton v. Heyman, 314 U.S. App. D.C. 161, 63
F.3d 1115, 1121 (D.C. Cir. 1995). The FOIA states that
the term "'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." 5 U.S.C. § 552(f). And the APA defines the
term "agency" as "each authority of the Government of
the United States, whether or not it is within or subject to
review by another agency [**11] . . . ." 5 U.S.C. §
551(1) (emphasis added). The District of Columbia Circuit recognized that "Congress ...incorporated in FOIA
the APA definition . . . of agency to expand, rather than
limit, its coverage." Cotton, 63 F.3d at 1121 (upholding
District Court's decision that the Smithsonian is an
"agency" under the FOIA) (citing Energy Research
Found. v. Def. Nuclear Facilities Safety Bd., 286 U.S.
App. D.C. 359, 917 F.2d 581, 583 (D.C. Cir. 1990)
("Congress sought to encompass entities that might have
eluded the APA's definition in § 551(1), which [the]
FOIA had incorporated by reference."). The Circuit
Court has interpreted the APA definition of "agency" to
"confer[] agency status on any administrative unit with
substantial independent authority in the exercise of specific functions." Soucie v. David, 145 U.S. App. D.C.
144, 448 F.2d 1067, 1073 (D.C. Cir. 1971). There can be
no doubt that the BOP exercises "substantial independent
authority" in the administration of its more than 106 penal institutions and over the more than 185,000 prisoners
who are detained in its facilities. See About the Bureau
of [**12] Prisons, http: //www. bop. gov/about/index.
jsp (status as of June 7, 2006). Therefore, the BOP, despite its status as a component agency of the DOJ, is a
proper defendant in this FOIA action.
(B) Is the Plaintiff Entitled to a Fee Waiver?

Page 4
436 F. Supp. 2d 17, *; 2006 U.S. Dist. LEXIS 42738, **

Having concluded that the Court has jurisdiction to
hear this case, it must turn now to the issue of whether
the plaintiff is entitled to a fee waiver. In determining
whether a party is entitled to a fee waiver, "the court
shall determine the matter de novo," however, "the
court's review of the matter shall be limited to the record
[that was] before the agency." 5 U.S.C. §
Generally, the FOIA requires those who request
documents to pay for the search and duplication costs.
Larson v. CIA, 269 U.S. App. D.C. 153, 843 F.2d 1481,
1482 (D.C. Cir. 1988) (citing Kissinger v. Reporters
Comm. for Freedom of the Press, 445 U.S. 136, 153, 100
S. Ct. 960, 63 L. Ed. 2d 267 (1980)). However, in certain
situations those costs may be reduced or waived completely. Judicial Watch v. Dep't of Justice, 185 F. Supp.
2d 54, 58 (D.D.C. 2002) ("Judicial Watch II"); [**13]
see 5 U.S.C. § 552(a)(4)(A)(ii)(II) (fee reduction for
requests from educational or noncommercial scientific
institutions involved in scholarly or scientific research,
or from representatives of the news media); 5 U.S.C. §
552(a)(4)(A)(iii) (fee waiver for requests that are in the
public interest). The public interest fee waiver provision
of the FOIA provides that "[d]ocuments shall be furnished without any charge . . . 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." 5 U.S.C. §
The burden of satisfying the "public interest standard" is on the requester. [*23] Larson, 843 F.2d at
1483 (citing McClellan Ecological Seepage Situation v.
Carlucci, 835 F.2d 1282, 1284-85 (9th Cir. 1987)).
Courts employ a two part test to determine whether the
requester has satisfied the burden. Id. at 1483. First, the
requester must establish that it does "not have a commercial interest [**14] in the disclosure of the information
sought." Id. (quoting 5 U.S.C. § 552(a)(4)(A)(iii)). Second, the requester must demonstrate "that the disclosure
of the information [is] 'likely to contribute significantly
to public understanding of the operations or activities of
the government.'" Id. (quoting 5 U.S.C. §
552(a)(4)(A)(iii)). The government concedes that PLN
has satisfied the public interest requirement, therefore,
the Court must only examine the second prong of the
test. As to this part of the test, a requester must satisfy
four factors:

(1) the subject of the requested records
must concern the "operations or activities"
of the government; (2) the disclosure must
be "likely to contribute" to an understand-

ing of government operations or activities;
(3) the disclosure of information must
contribute to the public's understanding;
and (4) the disclosure must be likely to
contribute "significantly" to public understanding of government operations or activities.

Judicial Watch v. Dep't of Justice, 133 F. Supp. 2d 52, 54
(D.D.C. 2000) ("Judicial Watch I") (citing D.C. Technical Assistance Org. v. Dep't of Housing and Urban Dev.,
85 F. Supp. 2d 46, 48-49 (D.D.C. 2000)). [**15] The
parties agree that the requested documents concern the
"operations or activities" of the government. Pl.'s Opp'n,
Ex. 4 ("[T]he records you seek concern in part the operations or activities of the BOP . . . ."). Accordingly, this
Court need only examine whether the PLN request satisfied the second, third, and fourth factors.
(1) The Parties' Arguments
The defendant contends that the plaintiff failed to
satisfy its burden of establishing that it was entitled to a
fee waiver under the second, third, and fourth prongs of
the public interest test. First, the defendant alleges that
the requested information is available in the public domain through either the internet or by conducting a
search of court records. Def.'s Mem. at 7. Therefore, argues the defendant, disclosure of the information would
not contribute to an understanding of government operations or activities because it is readily available to the
public. Id. Second, the defendant opines that PLN has
failed to adequately describe the public benefit that will
be derived from disclosure because its request was
overly broad and lacked reasonable specificity. Id. at 7-8.
Finally, the defendant argues that the plaintiff [**16]
has not demonstrated its intent and ability to adequately
disseminate the requested records to the general public.
Id. at 8-9. As support for its position, the defendant relies
on the OIP's determination that the limited information
contained on the PLN website raised questions about its
intent to actually communicate the information and its
inability to transmit the requested information to the public. Id. at 9.
The plaintiff responds to the first argument by
claiming that only a limited portion of the documents
requested are available to the public and although some
of the documents may be available on the internet or in
courthouses, this does not mean that the documents are
in the "public domain" within the context of the FOIA.
Pl.'s Opp'n at 10. The plaintiff also takes exception to the
defendant's allegation that its request lacked specificity,
claiming that the requested documents "related to a number of specific abuses and events at specific institutions"

Page 5
436 F. Supp. 2d 17, *; 2006 U.S. Dist. LEXIS 42738, **

and the connection between the requested information
and the [*24] public interest was repeatedly and sufficiently communicated. Id. at 14. In response to the defendant's argument that PLN cannot adequately disseminate [**17] the requested information to the public, the
plaintiff contends that the defendant misjudged the circulation level of PLN's printed material and the number of
people who visit its website based on the defendant's
review of the information contained on the website. Id. at
15-16. The plaintiff also asserts that it is a representative
of the news media and therefore it is, at the least, entitled
to a waiver of search and review costs, if not duplication
fees, under 5 U.S.C. § 552(a)(4)(A)(ii)(II). Id. at 13-14.
The defendant does not explicitly dispute this assertion,
but by challenging the plaintiff's ability to disseminate
the requested information, the defendant, in effect, challenges the validity of plaintiff's status as a member of the
news media. Def.'s Mem. at 8-10.
(2) Is the Requested Information Readily Available
to the Public?
"The mere fact that material is in the public domain
does not justify denying a fee waiver; only material that
has met a threshold level of public dissemination will not
further 'public understanding'. . . ." Campbell v. Dep't of
Justice, 334 U.S. App. D.C. 20, 164 F.3d 20, 36 (D.C.
Cir. 1998). For [**18] example, simply because documents are available in an agency's reading room does not
negate the fact that their production is likely to contribute
to the understanding of government operations or activities. See Schrecker v. Dep't of Justice, 970 F. Supp. 49,
51 n. 3 (D.D.C. 1997); Fitzgibbon v. Agency for Int'l
Dev., 724 F. Supp. 1048, 1050-51 (D.D.C. 1989) (recognizing the difficulty of accessing an agency's reading
room). Here, the Court is compelled to conclude that the
requested agency documents are not readily available to
the public. The government concedes that at least some
of the requested documents are not publicly available.
Pl.'s Opp'n, Ex. 4 ("[A] portion of the records requested .
. . is publicly available.") (emphasis added). And, to the
extent that the remaining documents are available to the
public, they are not available in a manner which would
further public understanding. First, unlike documents
centrally located in a reading room, the publicly available documents responsive to the plaintiff's request are
likely dispersed throughout the more than ninety-four
federal courthouses in this country. n3 See Schrecker,
970 F. Supp. at 51 n. 3. [**19] Second, in many cases
covered by the PLN requests, the BOP may not be a
named party, which would complicate significantly the
public's ability to discover those particular cases. See, e.
g., Oakes v. Dalius, No. 5: 03-CT-498-H, 2003 WL
23857312 (E.D.N.C. July 16, 2003) (prison warden was
named defendant in case seeking monetary damages for
alleged violation of prisoner's right to free speech); Kai-

ser v. Bailey, 2003 U.S. Dist. LEXIS 11103, No. 016151, 2003 WL 21500339 (D.N.J. July 1, 2003) (prison
warden was named defendant in case seeking monetary
damages for alleged violations of prisoner's First and
Eighth Amendment rights); Estrella v. Menifee, 2003
U.S. Dist. LEXIS 1134, No. 02 Civ. 6144, 2003 WL
192177 (S.D.N.Y. Jan. 27, 2003) (prison warden was
named defendant in case seeking monetary damages for
alleged violations of prisoner's constitutional rights);
Indelicato v. Suarez, 207 F. Supp. 2d 216 (S.D.N.Y.
2002) (case manager was named defendant in case seeking monetary damages for alleged violations of prisoner's
constitutional rights). Furthermore, it [*25] should be
noted that this Court's own electronic case filing ("ECF")
system did not become operative until 2001, [**20] and
as a test site for the ECF system this Court was one of
the first to employ it. National implementation of the
ECF system began in May of 2002 and still continues.
See ECF Frequently Asked Questions, http://www. html (last visited June 16,
2006). Accordingly, the amount of the requested information that could be accessed by the public is drastically
reduced for the period between 1996 and the date at
which a particular district began to employ the ECF system. Moreover, there are currently thirteen of the ninetyfour federal judicial districts that have yet to employ the
ECF system. See Courts Accepting Electronic Filings, (last
visited June 16, 2006). In those districts, electronic access to records is restricted for the entire period of the
plaintiff's request.

n3 Although there are ninety-four federal judicial districts, there is more than one courthouse
in some districts.
There is a significant difference between locating
[**21] the requested information in courthouses around
the country and on the internet, as opposed to having
access to the information in a single document. Cf. Dep't
of Justice v. Reporters Comm. for Freedom of the Press,
489 U.S. 749, 764, 109 S. Ct. 1468, 103 L. Ed. 2d 774
(1989). Publication of the requested information by PLN
will therefore contribute far more to public understanding than if the information remains available only in its
current status. See Fitzgibbon, 724 F. Supp. at 1051. Accordingly, the plaintiff has established that the requested
information is likely to contribute to public understanding of government operations or activities because it has
not reached a threshold level of dissemination. See
Campbell, 164 F.3d at 36; Fitzgibbon, 724 F. Supp. at
(3) Was the PLN Request Reasonably Specific?

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436 F. Supp. 2d 17, *; 2006 U.S. Dist. LEXIS 42738, **

"The requester of a fee waiver bears the initial burden of identifying, with reasonable specificity, the public
interest to be served . . . ." Fitzgibbon, 724 F. Supp. at
1050 (citing Nat'l Treasury Employees Union v. Griffin,
258 U.S. App. D.C. 302, 811 F.2d 644, 647 (D.C. Cir.
1987)). [**22] Two cases that have examined the reasonable specificity requirement aid the Court in making
the determination that the plaintiff has satisfied this requirement. In Judicial Watch v. Rossotti, the plaintiff
requested "reports, investigations, decisions, waivers and
findings of fact concerning conflicts-of-interest by . . .
IRS Commissioner Charles O. Rossotti." 356 U.S. App.
D.C. 54, 326 F.3d 1309, 1313 (D.C. Cir. 2003). The
plaintiff asserted that "' the public is always well served
when it knows how government activities, particularly
matters touching on legal and ethical questions, have
been conducted,' and that, 'the information requested will
be meaningfully informative in increasing public understanding of the IRS commissioner's involvement and
interest in lucrative government contracts.'" Id. at 131314. In that case, the District of Columbia Circuit found
that the plaintiff's letter "specifically explain[ed]" the
public interest to be served. Id. at 1313. On the other
hand, in Judicial Watch I, the plaintiff requested "material related in any way to the '[d] ecision(s) by Attorney
General Janet Reno, the Department of Justice, the Immigration [**23] and Naturalization Service, and/or
other persons and entities to return Elian Gonzales to the
custody of his biological father in Cuba'. . . ." 133 F.
Supp. 2d at 52-53. The Judicial Watch I Court denied a
public interest fee waiver request, finding that the plaintiff's assertion that the information would "promote accountable government" and "benefit the public by identifying areas for future reform as well as [*26] deterring
future abuses that could otherwise proliferate without
scrutiny" was "perfunctory" and "too ephemeral to satisfy the reasonable specificity standard." Id. at 54.
The Court finds the circumstances in this case more
analogous to Rossotti than Judicial Watch I. As in Rossotti, the PLN request specifically explains both the records sought and how the public will benefit from the
information contained in those records. Pl.'s Opp'n, Exs.
1, 3. Moreover, in contrast to Judicial Watch I, PLN does
not assert that information related to a single isolated
event will benefit the public interest in the general sense
of "promoting accountable government." Rather, the
PLN request seeks information regarding specific events
that occurred [**24] within BOP facilities that will provide insight to the public about how its federal prisons
are being managed and operated, and how its tax dollars
are being expended. Pl. Opp'n, Ex 1. And, PLN repeatedly specified how the requested information would
benefit the public. For example, in its letters dated August 6, 2003 and October 20, 2003, PLN clearly represented that information regarding litigation and settle-

ments can provide important insight into how well the
nation's prisons are being managed. Pl.'s Opp'n, Ex. 1
("[D]amage verdicts and settlements are an important
means of measuring respect for constitutional rights
within penal facilities); id., Ex. 3 ("Litigation against
government agencies is an important barometer of how
well managed, or badly run as the case may be, the
agency may be as well as illustrating trends and patterns
of abuse or other forms of mismanagement."). n4 The
Circuit Court's sentiment in Rossotti that "we cannot
imagine what else [the plaintiff] could have said to satisfy the government's appetite for specificity," id., has
equal applicability here.

n4 The plaintiff has also provided this Court
with an affidavit and several declarations in further support of its arguments. Affidavit of Fred
Cohen; Declaration of David Fathi; Declaration
of Paul Wright. The Court's review, however, is
limited to the record that was before the agency.
5 U.S.C. § 552(a)(4)(A)(vii). There is no indication that the affidavit or declarations were before
the agency, and therefore, this Court cannot consider them.
(4) Does PLN Have the Intent and Ability to Disseminate The Requested Records to the General Public?
In assessing whether a public interest fee waiver request should be granted, the Court "must consider the
requester's ability and intention to effectively convey or
disseminate the requested information to the public."
Judicial Watch II, 185 F. Supp. 2d at 62. In doing so,
courts "must look to 'the scope of the requester's proposed dissemination--whether to a large segment of the
public or a limited subset of persons' . . . ." VoteHemp,
Inc. v. DEA, 237 F. Supp. 2d 55, 62 (D.D.C. 2002)
(quoting D.C. Technical Assistance Org., 85 F. Supp. 2d
at 49). PLN clearly stated its intention to "analyze and
publish" the requested information in its printed journal
and on its website. Pl.'s Opp'n, Ex. 1. The question before the Court, therefore, is whether PLN has the ability
to disseminate the information. The government primarily argues that the finding by the OIP that the PLN website is not a viable distribution channel shows that PLN
failed to demonstrate its dissemination ability. The Court
does not agree. Regardless of the viability [**26] of the
PLN website as a mechanism for distributing the requested information, with 3,400 reported subscribers and
an estimated readership population of 18,000, PLN has
demonstrated its [*27] ability to distribute the printed
journal to the public.

Page 7
436 F. Supp. 2d 17, *; 2006 U.S. Dist. LEXIS 42738, **

The government cites Larson in support of its position. However, Larson is not analogous to this case. In
Larson, the plaintiff stated an intent to distribute requested information to a "major newspaper company."
Larson, 843 F.2d at 1482. The District of Columbia Circuit found that the plaintiff had not demonstrated an intent or ability to disseminate the information because he
had not identified the newspaper, the purpose for requesting the information, or any contact he had with any
major newspaper. Id. PLN, unlike the plaintiff in Larson,
is a publication in and of itself, and therefore does not
have to rely on another entity to disseminate the information. Thus, there is no "tenuous link" between the requester and the channels through which the information
will be disseminated, as was the situation in Larson. See
id. at 1483 n. 5.
In Linn v. Dep't of Justice, the plaintiff asserted that
his [**27] method of distribution would be to provide
the requested information to federal inmate lobbying
organizations with "member mailings number[ing] in the
thousands each month." 1997 U.S. Dist. LEXIS 9321,
No. 92-1406, 1997 WL 577586, at *6 (D.D.C. May 29,
1997). While similar to Larson in that the plaintiff in
Linn relied on an intermediary to disseminate the requested information, the Court noted that, unlike Larson,
the plaintiff had specified the lobbying organizations that
would disseminate the information. Id. Thus, the Linn
Court found that the "[p]laintiff's representations that he
will supply the information that he has received to organizations which can widely disseminate it to the relevant public . . ." entitled the plaintiff to a fee waiver. Id.
The facts in this case compel the same conclusion. With
a represented readership of "thousands each month,"
PLN can "widely disseminate" the requested information
to the "relevant public." Id. Moreover, PLN's ability to
disseminate the requested information must be considered even greater than the plaintiff in Linn because, as

noted above, PLN does not rely on an intermediary to
distribute the information. Therefore, [**28] PLN has
shown an intent and ability to disseminate the requested
V. Conclusion
For the foregoing reasons, the Court concludes that
the plaintiff has established that disclosure of the requested 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."
5 U.S.C. § 552(a)(4)(A)(iii). n5 Moreover, the plaintiff
has demonstrated its intent and ability to disseminate the
requested information to the relevant public. Accordingly, the plaintiff's motion for summary judgment is
granted and the defendant's motion for summary judgment is denied.

n5 Because the Court has determined that the
plaintiff is entitled to the blanket fee waiver, there
is no need to analyze whether the plaintiff is entitled to a partial fee waiver as a representative of
the news media under 5 U.S.C. §
SO ORDERED this 26th day of June, 2006. n6

n6 An Order consistent with the Court's ruling accompanies this Memorandum Opinion.
United States District Judge
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