In 2005, FedCURE sent a FOIA request to the BOP for various records related to the BOP’s ion spectrometry program. For years, federal officials used ion spectrometry equipment to detect drugs on visitors and BOP prisoners. The devices have since been discontinued following concerns about their accuracy [See: PLN, Feb. 2009, p.11].
BOP demanded that FedCURE pay $3,976 in search and copying fees before processing the FOIA request. In response, FedCURE asked for a fee waiver. FedCURE argued that it was a “noncommercial scientific institution” and a “representative of the news media” by virtue of the newsletter it published. Additionally, FedCURE asserted that disclosure of the requested records was in the public interest and that it intended to publish the ion spectrometer information in its newsletter and on its website. The BOP denied the request for a fee waiver, prompting FedCURE to file suit.
On cross-motions for summary judgment, Judge Walton agreed that FedCURE was entitled to a fee waiver. The BOP had argued that the requested information related to its ion spectrometry program would only be conveyed to a small group of people if provided to FedCURE. This, according to the BOP, demonstrated that disclosure of the records was unlikely to be “meaningfully informative” and unlikely to contribute to “increased public understanding” of the federal government.
Judge Walton disagreed. “Information disseminated by FedCURE via its website, newsletter, and chat room will inevitably trickle down from those who have sent inquiries to others who have an interest related to prisons,” he wrote.
Next, the BOP challenged FedCURE’s ability to disseminate the requested information to a broad audience. According to the BOP, FedCURE’s website was a “passive distribution source,” and its newsletter was “infrequently published.”
Relying primarily on his decision in Prison Legal News v. Lappin, 436 F.Supp.2d 17 (D.D.C. 2006) [PLN, Sept. 2006, p.15], Judge Walton concluded that FedCURE’s website and newsletter reached a wide enough audience. In Prison Legal News, the court granted a fee waiver to PLN after finding that its monthly publication at that time reached some 3,600 subscribers and 18,000 readers. Numbers which have increased substantially since evidence was submitted in that case in 2005.
The BOP attempted to distinguish the Prison Legal News ruling from FedCURE’s request for a fee waiver, arguing that PLN was printed monthly whereas the FedCURE newsletter was published infrequently. Judge Walton found this distinction unpersuasive, holding that “while FedCURE may publish infrequently, that fact does not prove that FedCURE cannot disseminate information to a reasonably broad section of the public.” Further, Judge Walton concluded that FedCURE had received some 250,000 visitors to its website since 2007, making it and the organization’s newsletter effective means to distribute the requested information to the public.
Finally, the district court held that the dearth of information about the BOP’s ion spectrometry program already in the public sphere militated in favor of a fee waiver. Accordingly, FedCURE’s motion for summary judgment was granted and the BOP’s cross-motion was denied. See: Federal Cure v. Lappin, 602 F.Supp.2d 197 (D.D.C. 2009).
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Related legal case
Federal Cure v. Lappin
|Cite||602 F.Supp.2d 197 (D.D.C. 2009)|