Federal Court Rejects 9/11 FOIA Records Fee Waiver Request


by Aiden Monaghan  source: 9/11 Blogger  July 9, 2010

In an order issued on June 17, 2010, the U.S. District Court for the District of Nevada rejected a plaintiff request for a waiver of search and reproduction fees for FBI records pertaining to the terrorist attacks of September 11, 2001. Such fees are often significant and can inhibit release of requested records. Now pending before the court is the FBI claim that FBI 9/11 records are exempt from public disclosure under the Freedom of Information Act. Requested records include those that may settle public questions regarding the crash scenes of American Airlines flight 77, United Airlines flight 93 and releated passenger phone calls first described as cellular and later as placed from aircraft seatback phones.

 ORDER

 Presently before the court is plaintiff Aidan Monaghan’s (hereinafter “Monaghan”) motion for summary judgment as to fee waiver. (Doc. #19). Defendants filed an opposition (doc. #22), and plaintiff filed a reply (doc. #24).

 Also before the court is defendant’s motion to strike exhibit 1 to plaintiff’s reply brief, (doc. #25) to which plaintiff filed an opposition. (Doc. # 26).

 This action arises under the Freedom of Information Act, 5 U.S.C. § 552 (hereinafter “FOIA”). In August 2009, plaintiff Monaghan made a request to the Federal Bureau of Investigation (“FBI”) for (1) certain categories of records relating to the terrorist attacks of September 11, 2001, and (2) a waiver of the fees usually charged with searching and copying records. (See AR01-03, AR05). On January 12, 2010, the FBI issued a letter formally denying plaintiff’s request for a fee. At the time, the FBI had spent fifty-four hours searching for the requested documents and, the FOIA fees amounted to $864. (See AR 05-07).

 A. Motion to Strike Exhibit 1 to Plaintiff’s Reply Brief

 Federal court’s review of a federal agency’s decision on a FOIA fee waiver is limited to the administrative record that was before the agency. See Friends of the Coast Fork, 110 F.3d at 54. Exhibit 1 to plaintiff’s reply brief (doc. #24) is not part of the administrative record. See Administrative Record (doc. #18). In fact, Magistrate Judge Peggy A. Leen previously denied plaintiff’s request to supplement the administrative record with this specific exhibit in an order dated April 16, 2010. See Doc. #17. This court finds that exhibit 1 to plaintiff’s reply brief (doc. #24) is inadmissible.

 B. Motion for Summary Judgment as to Fee Waiver

 Summary judgment is appropriate when, viewing the facts in the light most favorable to the nonmoving party, there is no genuine issue of material fact which would preclude summary judgment as a matter of law. Once the moving party has satisfied its burden, it is entitled to summary judgment if the non-moving party fails to present, by affidavits, depositions, answer to interrogatories, or admissions on file, “specific facts showing that there is a genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); Fed. R. Civ. P. 56(c).

 The FOIA generally requires requesters to pay search and duplication fees. Kissinger v. Reporters Comm., 455 U.S. 136 (1980). The requester bears the burden of demonstrating that she is entitled to a fee waiver. Friends of the Coast Fork v. U.S. Dept. Of Interior, 110 F.3d 53 (9th Cir. 1997). A requester may obtain a waiver of fees if he can satisfy a two prong test: (1) the disclosure of the requested information is in the public interest because it is likely to contribute significantly to the public understanding of the operations and activities of the government, and (2) the disclosure is not primarily in the commercial interest of the requester. McClellan Ecological Seepage Situation v. Carlucci, 835 F.2d 1282 (9th Cir. 1987).

 The FBI did not dispute the second prong because plaintiff’s request lacks commercial interest. However, the FBI denied plaintiff’s fee waiver based on the first prong. A federal agency’s decision on a fee waiver is subject to de novo review by a district court, and the court’s review is limited to the administrative record that was before the agency. See Friends of the Coast Fork, 110 F.3d at 54.

 The four factors related to the first prong are as follows: (I) whether the subject of the requested records concerns the “operations or activities of the government;” (ii) whether the disclosure is “likely to contribute” to an understanding of government operations and activities; (iii) whether the disclosure will contribute to “public understanding,” and (iv) whether the disclosure is likely to contribute “significantly” to public understanding of government operations or activities. See C.F.R. § 16.11(k)(2)(I)-(iv), (3)(I)-(ii).  

The defendant concedes that plaintiff satisfies the first factor of the first prong because the requested documents undeniably concern the operations and activities of the government. Therefore, this court will consider the second, third and fourth factors.  

As to the second factor, whether the disclosure is “likely to contribute” to an understanding of government activities, plaintiff claims his contributions to the “9/11 Blogger” website demonstrate his ability to disseminate information to the general public. (Doc. #24). However, plaintiff submits no evidence supporting his contention.  

Specifically, plaintiff does not own or control the “9/11 blogger” website. Plaintiff cites no law demonstrating that his commentary on a sub-blog within a larger blog satisfies the requirement that he is able to disseminate information to the public. Although plaintiff points to other websites and a book to demonstrate his efforts to disseminate information to the public, he does not provide any authenticated evidence. Accordingly, this court finds that the plaintiff has failed to show that the requested disclosure is “likely to contribute” to an understanding of government operations and activities.

 Additionally, in relation the third factor, whether the requested disclosure will contribute to public understanding, plaintiff fails to meet his burden. As the Ninth Circuit has explained in McClellan, 835 F.2d at 1285, “an agency may infer a lack of substantial public interest ‘[w]hen a public interest is asserted but not identified with reasonable specificity, and circumstances do not clarify the point of the requests.” 

Here, plaintiff repeatedly claims that the requested information will “settle the broad skepticism regarding American Airlines flight 77 and United Airlines flight 93…” However, plaintiff Monaghan did not provide any explanation as to how the requested information will help achieve that purpose. Therefore, this court finds plaintiff fails to meet his burden under the third factor.

 Finally, plaintiff unavoidably fails under the fourth factor which requires the requested disclosure be likely to contribute “significantly” to public understanding because he failed under the second and third factors. 

Therefore, based on the legal authorities presented, this court finds that plaintiff has failed to demonstrate that he is entitled to a fee waiver. 

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that defendant’s motion to strike exhibit 1 to plaintiff’s reply brief (doc. # 25) be, and the same hereby is, GRANTED. 

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that plaintiff Aidan Monaghan’s motion for summary judgment as to fee waiver (doc. # 19) be, and the same hereby is, DENIED.

DATED June 17, 2010.

James C. Mahan

U.S. District Judge

UNITED STATES DISTRICT JUDGE 

Order (PDF):

http://www.mediafire.com/?tzyntqnnmmm

Administrative Record (PDF):

http://www.mediafire.com/?rtzjnjoj1tz

60 Responses to Federal Court Rejects 9/11 FOIA Records Fee Waiver Request

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    • Osman says:

      Hi Lindsey,In answer to your first qutiseon, in my opinion, I think Alex’s father was a very imposing influence on Alex. I believe his father had very traditional views of his own about how men were to think and act towards everyone (family included). Alex’s father (from Alex’s opinion), was not a nurturing figure. I think Alex admires his father, but doesn’t respect him because he’s never shown a softer’ side of himself to Alex (which I believe Alex would like to see and when he doesn’t it brings on anger and rage/resentment in Alex towards his father). I think Alex tries to make people believe consciously that how people view you’ is important to him (i.e., his career, his social/personal life), however, unconsciously I think that Alex believes it’s what you do’ that makes you a good person. He still has unresolved issues regarding his mission overseas and in my opinion, I think Alex thinks’ he’s not a good person because of the bombing of the school and the killing of all those people. I found Alex’s behavior more aggressively raw than previous weeks. Alex’s use of descriptive language has undergone some serious changes (which I believe may be due in part to his breakup/disappointment with Laura). I’m concerned about the fact that Alex mentioned he took one of Daniel’s pills’ (leading me to wonder if that one’ pill was the only pill he had taken). Different kinds of drugs can cause different reactions in people (physically and mentally), perhaps this also is causing some mood shifts in Alex. It certainly has me concerned what with his coming in for appointments at different times and forgetting his identification to get on base.It would appear to me that Alex is emotionally in a downward spin and looking to take Paul with him (trying to evoke a response out of him with detailed information of Paul’s personal life). I can’t help but feel that Paul let this confrontation come about (perhaps Paul wanted to confront Alex because of his affair with Laura). He let Alex have control of the conversation (before it got physical) and never deflected his onslaught of personal statements about his family only getting up and physically confronting Alex at the mention of Laura’.If I were in Paul’s shoes (and we have to go back to at least to the second session), I would have had defined the roles of treatment for Alex more clearly. I would have first sought out his main problem that brought him to me, perhaps told him a plan of treatment for him and then further on, established some coping techniques he could employ if needed to continue with his pilot career (if he was interested in flying again) Thanks for reading!! Sherri Brozina

    • Mitzi says:

      , “Say, I was just going to take this Cessna up for a test. We’ve had some trouble with the lanidng gear. Why don’t you come up with me and we can have a visit!” I looked at him in horror and he laughed when he realized what I was envisioning. He added, “I’m pretty sure I have fixed it. There should be no trouble!” What a treat that was for me! My first and last time in the cockpit of a plane. Johnny even let me “drive” it as we soared over the city.It was Trayton’s and my good fortune when Lorrie and Alex moved to Toronto. That meant that Uncle Johnny and Aunt Lorraine would come to see their daughter and family. It also meant that we could look forward to those yearly visits, too. One time we made a trip with Johnny to the cottage. It was so much fun to sit cozily in front of the fire, with Trayton prodding Johnny with questions about John’s ambition as a kid, his experiences during the war and the setting up of the Prairie Flying Service in Regina. We sat for hours enjoying Johnny recount those years with such gusto and humour. On our return to Toronto, we stopped in Trenton at the air base to show Johnny where a plaque had been placed in memory of his brother Martin. We also wanted to show Johnny the Halifax, a bomber which had been brought up from the bottom of a lake in Norway and was being reconstructed in the RCAF Museum in Trenton. It was Johnny who pointed out to us that the Halifax a bomber, was a newer version of the Avro Lancaster (a plane he himself had flown). There was one difference, however. The Halifax was 9 inches longer than the Lancaster, a 9 inch space created so a tailgunner could keep his parachute near him for quick use, instead of storing it in the body of the plane. Trust Johnny to regale us with that little tidbit!We have all enjoyed Johnny’s storytelling. Here is one story he told me that always brings a smile to my face.The time is the dirty 30’s, the time of the depression. Johnny was about 10 or 11 years of age and it was his job to keep the water trough full of water for their horses, using a manual pump. He was not particularly happy that horses from neighbouring farms were frequenting this water hole. (During these hard times horses were allowed to roam freely, so they could scavenge for something to eat and drink.) The more horses that came to drink meant the more often Johnny had to fill the trough. He took a lingering look at the horses’ tails and, being the entrepreneurial type, he figured he might make a buck. Horsehair brought a good price $1.50 to $2.00 a bag. He proceeded to manicure the tails of visiting horses, carefully avoiding cutting into the fleshy part of their tails. Over a period of time he collected six to seven bags of horsehair which he cleverly hid in the barn. One day when he went to recount his bags and gloat over his future wealth, he could not find them. They were gone! He learned that the bags had been discovered and taken every last bag to town to be sold and the proceeds of this sale had gone into the pot to help Anne and Mabel buy supplies they needed for normal school. This was not his plan! Word of what happened soon got around the countryside. Mr. MacMillan, who was a bachelor in town, commented to Johnny the next time he saw him, “Yeh, John, it sure was a tough winter – all the horses got short tails!” (Once John accepted the reality of his bungled plan, he has joked how he contributed to the girls’ education.)How wonderful it is to be able to call Uncle Johnny uncle, and to have shared such happy times together. I wouldn’t change this for the whole world. These memories are truly my treasures.Sending you all our love across the miles.Bette and Trayton

    • Emma says:

      Since the news of Uncle Johnny’s passing I have reseiitvd many specialmemories of growing up with your family in Regina and would like toshare some of my recollections.My first memory of Uncle Johnny and Aunt Lorraine is that theywere the providers of four great cousins- Rae, Marty, Pat and littleLorrie. How could I forget all those family meals, sleepovers, picnicsin Wascana Park with visiting relatives and trips to the moon! “Tripsto the moon!” you say. Well in my mind, Uncle Johnny was one of thecoolest dads I’d ever met. He was the only dad that I knew who let hiskids convert the attached garage of their new home on Dolphin Bayinto a rocket ship. Rae, likely with the assistance of Marty and Pat, haddrawn rocket control panels on the inside garage walls. For me, thismade Uncle Johnny the epitome of ‘cool’. (We obviously never got to themoon, but with Rae providing all the requisite sound effects we sure hadfun imagining it. Ha!)My connection to my pilot uncle afforded me certain bragging rights. Iwas the only kid in my class who had an uncle who could fly his familyin his very own airplane to an exotic location like California, a place thatboasted Disneyland and day-long cartoons on Saturday. Wow! Lateras a pre-teen I recall Uncle Johnny asking brother Don and me alongon a trip to visit our Gladstone relatives. After having driven that tripmany times I was amazed at how quickly we arrived at our destination.I also recall magically flying through the beautiful cloud formations. Iwas shameless about telling anyone who would listen about my firstairplane trip with my Uncle Johnny.Uncle Johnny was a wonderful conversationalist, but I never wouldhave articulated that as a kid. However I did notice he had a neat way oftalking to me like he really was interested. He made me feel that what Ihad to say was important because in later conversations he would askquestions about what we had previously discussed. It was many yearslater, when I watched Uncle Johnny talk to our children the same way,that I truly appreciated what a special gift he had.One of my fondest memories of Uncle Johnny focuses on our last visit.What a fabulous storyteller! I asked him about life after the war andhe recounted how he and his partners developed the crop sprayerprototype. It was truly amazing how he could describe the process insuch detail. What a challenging and exciting journey! He was so modestabout this invention and his induction into the Saskatchewan AviationHall of Fame.Lastly I want to say that in later years I was able to witness the closerelationship that my mom and your dad shared. These loving exchangeswill remain etched in my mind forever. They were such sweet momentsand are memories that I hold dear to my heart.As you celebrate your Dad’s life please know that we are with you inspirit. His is a beautiful life to celebrate! He was a great guy who will bedearly missed.Love to all,Linda and Larry

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    • Alex says:

      that what really trolbues me is when my partner browsing on the net for dirty internet sites similar to: Thats a thing i can NOT deal with, so if any of you is on the market, which has a good sense of humor, can truthfully discuss their inner thoughts and supply a stable atmosphere, and is NOT addicted to online p0rrn then please prepare me a quick introduction email, a photo would certainly be appreciated as well. I ll swear you, that it will be the best thing what taken place in your existence, as long you are sincere with me. 18b

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