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Media Alerts - Sack v. Department of Defense
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May 20, 2016
  Sack v. Department of Defense
Headline: D.C. Circuit finds students qualify for reduced fees for FOIA requests

Area of Law: Freedom of Information Act

Issue(s) Presented: Whether a Ph.D student making a FOIA request is eligible for reduced fees available to educational institutions..

Brief Summary: Appellant, a student at the University of Virginia, submitted Freedom of Information Act (FOIA) requests to the Department of Defense seeking reports about its use of polygraph examinations, as well as related documents about those examinations, as part of the research for her dissertation on polygraph bias. Sack informed DOD of the purpose of her requests and asked to be categorized as an educational-institution requester, which limits the fees DOD could charge for complying with her FOIA request. The Department of Defense refused to categorize Sack as an educational-institution requester and required her to pay about $900 to conduct the search. Sack filed suit challenging the handling of her request. The U.S. District Court for the District of Columbia granted summary judgment to DOD, concluding that Sack was not an educational-institution requester entitled to reduced fees, and Sack appealed.

The U.S. Court of Appeals for the District of Columbia Circuit reversed, holding that Sack, as a student pursuing school-sponsored research, was an educational-institution requester within the meaning of FOIA. FOIA establishes three categories of document requests that are subject to different fee structures. As relevant here, fees for noncommercial requests made by educational institutions, noncommercial scientific institutions, and representatives of the news media are limited to photocopying costs. 5 U.S.C. 552 (a)(4)(A)(ii)(II).

The statute does not define the term "educational institution" but does direct agencies subject to FOIA to promulgate regulations specifying a fee schedule for processing requests and "establishing procedures and guidelines for determining when such fees should be waived or reduced." The statute further requires that the fee schedule must conform to guidelines promulgated by the Director of the Office of Management and Budget (OMB) and be uniform for all agencies. OMB guidelines, from which Department of Defense guidelines derive, define an educational institution in terms that encompass the University of Virginia, require that the documents sought be in furtherance of the institution's program of scholarly research and not for a commercial use, and impose a further requirement that the request serve a scholarly research goal of the institution, rather than an individual goal. In expanding on the institutional v. individual goal distinction, the OMB guidelines make clear that teachers may be eligible for reduced fees but conclude that "a student who makes a request in furtherance of the completion of a course of instruction is carrying out an individual research goal and the request would not qualify."

The D.C. Circuit found that excluding students from the definition of educational institution was inconsistent with the language of 5 U.S.C. 552 (a)(4)(A)(ii)(II), which referred to educational institutions without drawing a distinction between students and teachers. The court relied on dictionary definitions of educational institutions, which include students as well as teachers. The court also found unpersuasive DOD's argument that the inclusion of teachers, but not students, in discussions of the bill in the Senate signaled legislative intent to exclude. The court concluded that while agencies may request reasonable assurances that student requests further coursework or other school-sponsored activities, they may not categorically refuse them educational-institution treatment.

For the full text of the opinion, please see

Panel: Tatel, Griffith, Kavanaugh

Argument Date: February 18, 2016

Date of Issued Opinion: May 20, 2016

Docket Number: 14-5039

Decided: Reversed

Case Alert Author: Ripple Weistling

Counsel: Kelly B. McClanahan for appellant.

Peter R. Maier and R. Craig Lawrence for appellee.

Author of Opinion: Kavanaugh

Case Alert Circuit Supervisor: Elizabeth Earle Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 05/20/2016 05:16 PM     DC Circuit  

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