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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 17, 2003 Decided May 2, 2003
No. 02-5154
JUDICIAL WATCH, INC.,
APPELLANT
v.
CHARLES O. ROSSOTTI,
COMMISSIONER, INTERNAL REVENUE SERVICE AND
DEPARTMENT OF TREASURY,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 01cv01612)
–————
Larry E. Klayman argued the cause and filed the briefs
for appellant.
Gretchen M. Wolfinger, Attorney, U.S. Department of Jus-
tice, argued the cause for appellee. With her on the brief
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
were Roscoe C. Howard, Jr., U.S. Attorney, and Jonathan S.
Cohen, Attorney, U.S. Department of Justice.
Before: SENTELLE, HENDERSON and TATEL, Circuit Judges.
Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: Appellant, a non-profit organization,
argues that it qualifies for a fee waiver under the Freedom of
Information Act because disclosure of the requested docu-
ments regarding a conflict-of-interest waiver received by the
Commissioner of the Internal Revenue Service would serve
the ‘‘public interest.’’ The district court thought appellant’s
request too ‘‘general and formulaic’’ to satisfy FOIA. We
disagree. Following Congress’s directive that FOIA’s fee
waiver requirement be liberally construed, and finding appel-
lant’s request both reasonably specific and non-conclusory—
all that our case law requires—we reverse.
I.
Intended 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,’’ NLRB v. Robbins Tire & Rubber Co., 437 U.S.
214, 242 (1978), the Freedom of Information Act requires
federal agencies to disclose information upon request unless
the statute expressly exempts the information from disclo-
sure. 5 U.S.C. § 552 et seq. Although requesters must pay
reasonable charges associated with processing their requests,
5 U.S.C. § 552(a), FOIA section 552(a)(4)(A)(iii) requires
agencies to waive fees for requesters able to demonstrate that
‘‘disclosure of the information is in the public interest.’’ Re-
questers may seek judicial review of denials of fee waivers
only after exhausting specified administrative remedies. 5
U.S.C. § 552(a)(6)(A)(i), (ii); Oglesby v. U.S. Dep’t of the
Army, 920 F.2d 57, 61–62 (D.C. Cir. 1990) (holding that FOIA
administrative exhaustion requirement is jurisdictional). A
requester is considered to have constructively exhausted ad-
ministrative remedies and may seek judicial review immedi-
ately if (with one exception not relevant here) the agency fails
3
to answer the request within twenty days. 5 U.S.C.
§ 552(a)(6)(c). If the agency responds to the request after
the twenty-day statutory window, but before the requester
files suit, the administrative exhaustion requirement still ap-
plies. Oglesby, 920 F.2d at 64–65.
On June 6, 2001, appellant, Judicial Watch, Inc., ‘‘a non-
profit, non-partisan, public interest organization committed to
fighting corruption by government officials,’’ Appellant’s Br.
at 2, sent virtually identical FOIA requests to the Internal
Revenue Service and the Department of the Treasury. The
two requests sought information about former Internal Reve-
nue Service Commissioner Charles Rossotti’s relationship
with American Management Systems, Inc., a company he co-
founded and in which he retained stock; the company’s
contract with the IRS; and Rossotti’s receipt of a conflict-of-
interest waiver from Treasury. Specifically, the letters re-
quested information concerning:
1. IRS Commissioner Charles O. Rossotti’s Decem-
ber 11, 2000 waiver, executed by former Deputy
Treasury Secretary Stuart Eizenstadt, concerning
the ‘‘Custodial Accounting Project’’ (hereinafter
‘‘CAP’’).
2. IRS Commissioner Charles O. Rossotti and
American Management Systems, Inc. (hereinafter
‘‘AMS’’).
3. Decision(s) concerning CAP that have or would
have a direct and predictable effect on IRS Commis-
sioner Charles O. Rossotti’s financial interest in
AMS.
4. The decision to grant IRS Commissioner
Charles O. Rossotti a conflict-of-interest waiver on
December 11, 2000.
5. Communications between IRS Commissioner
Charles O. Rossotti, former Deputy Treasury Secre-
tary Stuart Eizenstadt, and/or former Treasury De-
partment Assistant General Counsel Kenneth
4
Schmalzbach concerning the December 11, 2000 con-
flict-of-interest waiver and/or CAP, and/or AMS.
6. The decision to grant AMS the contract for an
automated financial management system and soft-
ware supporting CAP.
Claiming that disclosing such information would serve the
‘‘public interest,’’ 5 U.S.C. § 552(a)(4)(A)(iii), Judicial Watch
sought a fee waiver in connection with each request. The
IRS replied by letter dated July 5. Without addressing the
fee waiver request, the July 5 letter asked Judicial Watch for
additional time to respond. The letter explained that if
Judicial Watch did not agree to the extension, the organiza-
tion could seek judicial review. Judicial Watch never an-
swered.
Treasury responded to Judicial Watch’s fee waiver request
with multiple letters, only two of which are relevant here. By
letter dated July 10, Treasury asked for additional informa-
tion from Judicial Watch regarding its waiver request. Judi-
cial Watch never replied, so on August 10, Treasury informed
Judicial Watch that its request would be deemed withdrawn
within thirty days unless it complied with Treasury’s advance
fee payment requirement. Again, Judicial Watch did not
respond, and Treasury administratively closed the matter.
On July 25, Judicial Watch filed suit in the U.S. District
Court for the District of Columbia seeking to compel the two
agencies to grant fee waivers. In an opinion addressing both
fee waiver requests, the district court granted summary
judgment for the IRS and dismissed the complaint against
Treasury. Judicial Watch v. Rossotti, No. 01–1612 (D.D.C.
Mar. 18, 2002). With respect to Treasury, the court found
that Judicial Watch failed to exhaust its administrative reme-
dies because the Department’s July 10 letter, sent before
Judicial Watch filed suit, constituted a substantive response.
Addressing the merits of the IRS request, the district court
characterized Judicial Watch’s June 6 letter as ‘‘general and
5
formulaic,’’ finding that it fell ‘‘far short’’ of demonstrating
that release of the information would be in the public interest.
Id., mem. op. at 8.
Judicial Watch appeals. We review the district court’s
decision to grant summary judgment and to dismiss the
complaint de novo. Trifax Corp. v. Dist. of Columbia, 314
F.3d 641, 643 (D.C. Cir. 2003). We also review de novo an
agency’s denial of a fee waiver request, but our review is
‘‘limited to the record before the agency.’’ 5 U.S.C.
§ 552(a)(4)(A)(vii).
II.
Judicial Watch challenges the district court’s grant of sum-
mary judgment to the IRS and dismissal of its complaint
against Treasury. The government defends the district
court’s reason for granting summary judgment to the IRS,
but offers a new justification for dismissing the complaint
against Treasury. See Dimond v. Dist. of Columbia, 792
F.2d 179, 187 (D.C. Cir. 1986) (noting that appellate court can
consider any argument on appeal that supports the district
court’s judgment). Citing Treasury regulations providing
that FOIA’s twenty-day time limit does not apply to requests
that fail to ‘‘conform in every respect’’ to the department’s
regulations, 31 C.F.R. § 1.5(a)(1), and that requests are only
‘‘considered to have been received on the date on which a
complete request TTT has been received,’’ id. at § 1.5(f), the
government argues that Judicial Watch failed to constructive-
ly exhaust its administrative remedies both because FOIA’s
twenty-day statutory window did not apply to its nonconform-
ing request and because Judicial Watch’s incomplete request
was never considered to be ‘‘received.’’ According to the
government, our disposition of Judicial Watch’s case against
Treasury therefore turns on the adequacy of its June 6 letter:
If the letter did not demonstrate Judicial Watch’s eligibility
for a fee waiver, then Treasury had no obligation to respond
and Judicial Watch failed to exhaust its administrative reme-
dies; but if Judicial Watch qualified for a fee waiver, then it
constructively exhausted its administrative remedies because
Treasury did not respond substantively within twenty days.
6
Given the district court’s reason for granting summary judg-
ment to the IRS—that Judicial Watch failed to qualify for a
fee waiver—both cases now turn on whether the June 6
letters demonstrate that disclosure of the information would
serve the ‘‘public interest.’’ 5 U.S.C. § 552(a)(4)(A)(iii).
In order to demonstrate that a FOIA request is in the
public interest, and therefore eligible for a fee waiver, the
requester must show that disclosure of the information ‘‘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). Because the government does not
argue that the requests serve Judicial Watch’s ‘‘commercial
interests,’’ this case turns on whether disclosure of the infor-
mation is ‘‘likely to contribute significantly to public under-
standing of the [government’s] operations or activities.’’ On
this issue, the IRS’s implementing regulation essentially re-
peats the statute’s language and includes the following non-
exclusive list of factors the agency ‘‘shall consider’’:
(A) Whether the subject of the releasable records
concerns the agency’s operations or activities;
(B) Whether the releasable records are likely to
contribute to an understanding of the agency’s oper-
ations or activities;
(C) Whether the releasable records are likely to
contribute to the general public’s understanding of
the agency’s operations or activities (e.g., how will
the requester convey the information to the general
public);
(D) The significance of the contribution to the gen-
eral public’s understanding of the agency’s opera-
tions or activities (e.g., is the information contained
in the releasable records already available to the
general public).
26 C.F.R. § 601.702(f)(2)(ii). Though phrased somewhat dif-
ferently, Treasury’s fee waiver regulation, 28 C.F.R.
7
§ 16.11(k)(2)(i)-(iv), is substantively identical, and the parties
agree that our resolution of the IRS fee waiver request will
therefore dispose of the Treasury request as well.
Under well-established case law, fee waiver requests must
be made with ‘‘reasonable specificity,’’ Larson v. C.I.A., 843
F.2d 1481, 1483 (D.C. Cir. 1988) (per curiam) (internal quota-
tion marks and citation omitted), and based on more than
‘‘conclusory allegations,’’ Nat’l Treasury Employees Union v.
Griffin, 811 F.2d 644, 647 (D.C. Cir. 1987). We are also
mindful that Congress amended FOIA to ensure that it is
‘‘ ‘liberally construed in favor of waivers for noncommercial
requesters.’ ’’ McClellan Ecological Seepage Situation v.
Carlucci, 835 F.2d 1282, 1284 (9th Cir. 1987) (quoting 132
CONG. REC. 27,190 (1986) (Sen. Leahy)).
In support of its fee waiver request to the IRS, Judicial
Watch stated in its June 6 letter:
Judicial Watch is a 501(c)(3) not-for-profit public
interest organization. One of its purposes is to
provide the public with information which exposes
government activities that are contrary to law. Ju-
dicial Watch is, in effect, an educational foundation,
as well as a law firm, which uses several mechanisms
for the dissemination of the information it acquires,
and operates to ensure that this information will be
made available to the public on a daily basis.
After listing the multiple mechanisms Judicial Watch employs
to disseminate information it obtains under FOIA, the letter
explains that ‘‘there is an unequivocal public interest served
by revealing the aforementioned documents’’; ‘‘[t]he Ameri-
can people should be made aware of, among other things,
reports, investigations, decisions, waivers and findings of fact
concerning conflicts-of-interest by high government officials
and heads of various agencies and departments, in this case,
IRS Commissioner Charles O. Rossotti’’; and ‘‘[r]elease of
the information will promote confidence in our Constitutional
Republic, and contribute to furthering the integrity of the
American national government by deterring and/or sanction-
ing corrupt activities.’’
8
The government argues that Judicial Watch’s ‘‘justification
for a fee waiver consisted primarily of vague, conclusory
statements that were not sufficiently specific for the IRS to
determine whether a fee waiver was warranted.’’ Appellees’
Br. at 11. In particular, the government argues that Judicial
Watch’s request fails each of the four factors the agency uses
to assess fee waiver requests. Because the government has
organized its brief around these factors, we will organize our
analysis around them as well. In doing so, however, we
emphasize that we owe no particular deference to the IRS’s
interpretation of FOIA. Tax Analysts v. Commissioner, 117
F.3d 607, 613 (D.C. Cir. 1997) (noting that court ‘‘will not
defer to an agency’s view of FOIA’s meaning’’).
Beginning with the first factor—that the request ‘‘concerns
the Agency’s operations or activities’’—we disagree with the
government’s contention that Judicial Watch failed to ‘‘specifi-
cally identify the operations or activities of the IRS to which
its FOIA request pertained.’’ Appellees’ Br. at 22. With
‘‘reasonable specificity’’—all that FOIA requires, Larson, 843
F.2d at 1483—Judicial Watch sought documents regarding
specified ‘‘operations and activities’’ of the IRS, i.e., a conflict-
of-interest waiver executed by the Deputy Treasury Secre-
tary for the Commissioner of the IRS, the Commissioner’s
relationship with a private company doing business with the
IRS, and decisions by the IRS involving the private company.
See supra p. 4. We cannot imagine what else Judicial Watch
could have said to satisfy the government’s appetite for
specificity.
Nor do we see how Judicial Watch’s request fails to ‘‘con-
tribute to the public’s understanding of the agencies’ opera-
tions,’’ the regulation’s second factor. What could be more
important to the public’s understanding of IRS operations
than knowing whether its commissioner awarded a govern-
ment contract to a company he co-founded and in which he
held stock? The government argues that ‘‘Judicial Watch
stated nothing about the informative value of the information
it requested,’’ Appellees’ Br. at 23, but the June 6 letter
specifically explains that ‘‘the public is always well served
when it knows how government activities, particularly mat-
9
ters touching on legal and ethical questions, have been con-
ducted,’’ and that ‘‘the information requested will be meaning-
fully informative in increasing public understanding of the
IRS commissioner’s involvement and interest in lucrative
government contracts.’’ At oral argument, government coun-
sel complained that Judicial Watch provided no evidence that
Rossotti actually had a conflict of interest. That may be true,
but the question here is not whether Rossotti had such a
conflict, but whether disclosure of the requested documents is
likely to contribute to public understanding of IRS opera-
tions—a goal that disclosure will promote regardless of what
the documents reveal. Contrary to the implications of the
government’s argument, 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.
Claiming that Judicial Watch failed to satisfy the third
factor, the government argues that the organization never
‘‘state[d] that it intends to disseminate the information it has
requested, and more importantly, how it intends to do so.’’
Appellees’ Br. at 23–24 (citing 26 C.F.R. § 601.702(f)(2)(ii)(C)
(requesters must demonstrate how they will ‘‘convey the
information to the general public’’)). In fact, however, the
June 6 letter not only explains that Judicial Watch’s mission
is obtaining information under FOIA, but also lists nine ways
in which it communicates collected information to the public:
press releases; a newsletter with a monthly circulation of
‘‘over 300,000 copies nationwide’’; a website on which people
can view copies of documents and that has ‘‘logged up to
1,000,000 visitors in a single day’’; an ‘‘Infonet’’ listserve with
‘‘over 60,000 subscribe[rs]’’ who receive daily updates on
Judicial Watch lawsuits, FOIA requests, and investigations;
congressional testimony; a nationally syndicated news and
information television show Judicial Watch helps to produce;
a Judicial Watch-produced weekly radio program which ‘‘airs
nationwide on thirty-six radio stations and the Internet’’;
appearances by Judicial Watch employees on television and
radio programs; and conferences organized by Judicial
Watch. Judicial Watch might have added that it will use
10
these methods to publicize any information it obtains from
this request, but the government points to nothing in FOIA,
the IRS regulation, or our case law requiring such pointless
specificity.
Judicial Watch’s request contains considerably more detail
regarding its ability to publicize disclosed information than
did the defective request at issue in Larson v. C.I.A. In that
case, we upheld a CIA fee waiver denial where, although the
requester stated that he intended to distribute collected
information to a newspaper, he ‘‘failed to identify the newspa-
per company to which he intended to release the requested
information, his purpose for seeking the requested material,
or his professional or personal contacts with any major news-
paper companies.’’ Larson, 843 F.2d at 1483. By contrast,
Judicial Watch has explained, in detailed and non-conclusory
terms—again, all that FOIA requires—exactly how and to
whom it will disseminate the information it receives.
Finally, addressing the fourth factor, the government ar-
gues that Judicial Watch failed to show whether ‘‘the informa-
tion contained in the releasable records [is] already available
to the general public.’’ 26 C.F.R. § 601.702(f)(2)(ii). Accord-
ing to the government, ‘‘[i]t is clear TTT that at least some of
the information is public[ ] because Judicial Watch states that
its request is based on news articles concerning the conflict of
interest waiver.’’ Appellees’ Br. at 24 n.13. Although the
June 6 letter does say that ‘‘this request is based, in part, on
news articles by Mr. John Berlau that were reported in
Insight Magazine,’’ and although that article reports that
‘‘Insight has obtained a copy of that waiver,’’ nothing in the
record before us suggests that the waiver has been disclosed
to anyone other than Insight. Moreover, Judicial Watch
seeks considerably more than the waiver itself. Its June 6
letter requests ‘‘correspondence, memoranda, documents, re-
ports, records, statements, audits, lists of names, applications,
diskettes, letters, expense logs and receipts, and calendar or
diary logs’’ relating to Rossotti’s alleged conflict of interest
and Treasury’s decision to grant him a conflict-of-interest
waiver.
11
At oral argument, counsel for Judicial Watch asserted that
the government’s response to its waiver request amounted to
just the sort of ‘‘roadblock[ ] and technicalit[y]’’ that led
Congress to liberalize the fee waiver provision. 132 CONG.
REC. 31,415 (1986) (Sen. Leahy). We cannot disagree. Be-
cause Judicial Watch’s June 6 request demonstrates with
reasonable specificity that disclosure of the information
sought will serve the public interest, we reverse the district
court’s grant of summary judgment to the IRS and, for the
same reason, its dismissal of the complaint against Treasury.
So ordered.