Students’ FOIA Requests Just As Eligible for “Educational” Fee Reductions As Teachers’ Or Libraries’ – D.C. Circuit

dcogcadmin | May 24, 2016

Costs can be a barrier to students’ use of public records laws to research government archives as part of their education.  But Kathryn Sack, a Virginia graduate student, won her case in the U.S. Court of Appeals for the D.C. Circuit Friday (20) with a ruling that can ease the cost burden for many.

She asked Defense Department agencies for records on government research into polygraph bias, as part of her U. Va. doctoral thesis project.  When the agency asked for $900 to pay for their search, she challenged the agency denial of her request for a waiver of those fees. 

Federal FOIA law (and also the D.C. law, which follows federal) allow such a waiver for requests “made by an educational institution” which has been interpreted to include teachers at all levels.

The U.S. District Court for the District of Columbia (Wilkins, J.) upheld the agency denial in 2013, following Defense Department regulations and Office of Management and Budget guidance in holding that requests in furtherance of student work in university courses are personal, not “made by” the institution as the law seemed to require.

The new ruling, authored by Circuit Judge Brett Kavanaugh for a unanimous three-judge panel, rejects that interpretation:

“We disagree with the Government’s slicing of the term ‘educational institution.’ If teachers can qualify for reduced fees, so can students. Students who make FOIA requests to further their coursework or other school-sponsored activities are eligible for reduced fees under FOIA because students, like teachers, are part of an educational institution. The student involved in this case, Kathryn Sack, therefore is eligible for reduced fees for her FOIA requests. We reverse the contrary judgment of the District Court on that question.”

The Circuit Court of Appeals ruling will help D.C. students if the question ever comes up in the D.C. Court of Appeals on a search fee waiver denial by a D.C. agency, as the District public records law is similar and federal FOIA cases are commonly regarded as authoritative guidance on interpreting the local law.

Representing Ms. Sack was D.C. FOIA specialist Kel McClanahan of National Security Counselors.

“There are so many cases where public records petitioners halted their efforts to pursue their request due to the prohibitive costs they knew they would incur –and would not be able to afford,” said Mal Leary, President of the National Freedom of Information Coalition (NFOIC) whose organization provided funds to support the appeal. “It’s also a tactic used by public institutions to quash freedom of information petitions and appeals,” he added.

Through support from the John S. and James L. Knight Foundation to NFOIC, the Knight FOI Fund exists to offer financial support in open government lawsuits and assist the pursuit of important FOI cases by helping to defray upfront costs such as filing fees, depositions, court costs and other expenses associated with legal actions.  Since it began in January 2010, the Knight FOI Fund has assisted NFOIC member organizations, their allies and other litigants with 38 grant awards in FOI or access cases.