Sack v. United States Department of Defense

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 18, 2016 Decided May 20, 2016

No. 14-5039

KATHRYN SACK,

APPELLANT

v.

UNITED STATES DEPARTMENT OF DEFENSE,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:12-cv-01754)

Kelly B. McClanahan argued the cause and filed the briefs

for appellant.

Peter R. Maier, Assistant U.S. Attorney, argued the cause

for appellee. With him on the brief was R. Craig Lawrence,

Assistant U.S. Attorney. Jane M. Lyons, Assistant U.S.

Attorney, entered an appearance.

Before: TATEL, GRIFFITH, and KAVANAUGH, Circuit

Judges.

Opinion for the Court filed by Circuit Judge KAVANAUGH.

2

KAVANAUGH, Circuit Judge: The Government charges

fees to process FOIA requests. Those fees can be significant –

in this case about $900 – and can deter or prevent citizens from

making FOIA requests.

By statute, educational institutions are eligible for

reduced fees when they make FOIA requests. The

Government has long determined that teachers who make

FOIA requests are eligible for those reduced fees because

teachers are part of an educational institution. But at the same

time, the Government has determined that students who make

FOIA requests are not eligible for those reduced fees because

they are supposedly not part of an educational institution.

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, and affirm in

all other respects.

I

While pursuing her Ph.D. in Politics at the University of

Virginia, Kathryn Sack submitted FOIA requests to the

Department of Defense. 1 Sack sought Department reports

about its use of polygraph examinations, as well as related

1

To be precise, Sack submitted the requests to multiple

agencies within the Department. For ease of reference, we will

refer to the agencies as “the Department.”

3

documents about those examinations. Sack told the

Department that she intended to use the requested information

for her dissertation on polygraph bias.

Sack asked the Department to categorize her as an

educational-institution requester. Under FOIA, government

agencies may charge fees for processing FOIA requests. But

FOIA limits the fees that an agency may charge for processing

FOIA requests made by an educational institution.

For one batch of Sack’s requests, the Department of

Defense refused to categorize Sack as an

educational-institution requester and required her to pay about

$900 to conduct the search. For another batch of Sack’s

requests, the Department conducted a search and reviewed

responsive documents, but the Department informed Sack that

the documents were exempt from disclosure under FOIA

Exemption (7)(E).

Sack filed a lawsuit challenging the Department’s

handling of those two batches of requests. As to the first,

Sack asked to be categorized as an educational-institution

requester so that she would have to pay only the reduced fees.

As to the other, Sack challenged the Department’s withholding

of the requested polygraph reports. The District Court

granted summary judgment to the Department of Defense.

The Court concluded that Sack was not an

educational-institution requester entitled to reduced fees. And

the Court ruled that the polygraph reports were exempt under

FOIA Exemption 7(E).

II

The first question in this case is whether FOIA requests

made by students to further their coursework or other

4

school-sponsored activities are requests made by an

“educational institution.”

A

At the outset, we must describe the relevant statutory and

regulatory provisions regarding fees for FOIA requests.

Buckle up.

FOIA directs agencies to charge “fees applicable to the

processing of requests.” 5 U.S.C. § 552(a)(4)(A)(i). Fees

may include charges for document search, document

duplication, and document review.

The category of the FOIA requester determines the kinds

of fees that may be charged. FOIA establishes three

categories of requesters.

The first category covers commercial requesters.

Agencies may charge such commercial requesters “reasonable

standard charges for document search, duplication, and

review.” Id. § 552 (a)(4)(A)(ii)(I).

The second category covers noncommercial requests

made by educational institutions, noncommercial scientific

institutions, and representatives of the news media. Agencies

may charge requesters in the second category only for

document duplication. Id. § 552 (a)(4)(A)(ii)(II). 2

2

The relevant FOIA provision provides: “[F]ees shall be

limited to reasonable standard charges for document duplication

when records are not sought for commercial use and the request is

made by an educational or noncommercial scientific institution,

whose purpose is scholarly or scientific research; or a representative

of the news media.” 5 U.S.C. § 552(a)(4)(A)(ii)(II).

5

The third category includes all other requesters.

Agencies may charge those requesters for document search and

duplication. Id. § 552 (a)(4)(A)(ii)(III).

Here, Sack clearly does not fall within the first category.

The question is whether Sack falls within the second

“educational institution” category, or instead falls within the

third “other” category. 3 This question matters because, to

reiterate, educational-institution requesters need to pay only

the costs for document duplication but not the costs for

document search.

FOIA directs agencies to “promulgate regulations”

specifying “the schedule of fees applicable to the processing of

requests . . . and establishing procedures and guidelines for

determining when such fees should be waived or reduced.”

Id. § 552(a)(4)(A)(i). The statute further provides: “Such

schedule shall conform to the guidelines which shall be

promulgated . . . by the Director of the Office of Management

and Budget and which shall provide for a uniform schedule of

fees for all agencies.” Id. 4

3

In addition to the provisions setting out the requester

categories, a separate FOIA provision not at issue in this case directs

agencies to waive or reduce otherwise applicable fees “if disclosure

of the information is in the public interest because it 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). That fee

waiver provision is focused not on the nature of the requester but on

the nature of the request. See Cause of Action v. FTC, 799 F.3d

1108, 1121 (D.C. Cir. 2015).

4

FOIA requires agencies – including the Department – to

conform to OMB’s Guidelines pertaining only to fee schedules. In

other words, the law does not expressly require that agencies adhere

to OMB’s Guidelines regarding requester categorization. 5 U.S.C.

6

FOIA does not define the term “educational institution”

apart from limiting it to those institutions “whose purpose is

scholarly or scientific research.” Id. § 552(a)(4)(A)(ii)(II).

Department of Defense regulations supply a more

comprehensive definition: “The term ‘educational institution’

refers to a pre-school, a public or private elementary or

secondary school, an institution of graduate high education, an

institution of undergraduate higher education, an institution of

professional education, and an institution of vocational

education, which operates a program or programs of scholarly

research.” 32 C.F.R. § 286.28(e)(4).

Consistent with the statute’s directive to follow OMB

Guidelines, the Department of Defense has derived its

definition of “educational institution” from the Office of

Management and Budget’s Fee Schedule and Guidelines,

which define “educational institution” in the same terms. 52

Fed. Reg. 10,012, 10,014 (1987).

But who within the educational institution qualifies for

reduced fees when they make a FOIA request? The

Department of Defense regulations do not say. But the OMB

Guidelines add further detail on that point. The Guidelines

state that “agencies should be prepared to evaluate requests on

an individual basis when requesters can demonstrate that the

request is from an institution that is within the category, that

the institution has a program of scholarly research, and that the

documents sought are in furtherance of the institution’s

program of scholarly research and not for a commercial use.”

§ 552(a)(4)(A)(i). We assume solely for the sake of argument that

OMB may establish guidelines for determining a requester’s fee

category. Even so, those guidelines must be consistent with the

statute, the question we explore in Part II. B.

7

Id. The Guidelines also direct agencies to “ensure that it is

apparent from the nature of the request that it serves a scholarly

research goal of the institution, rather than an individual goal.”

Id.

To help agencies apply what OMB calls the “institutional

versus individual test,” the Guidelines provide a few examples

and make clear that a teacher may be eligible for reduced fees:

A “request from a professor of geology at a State university for

records relating to soil erosion, written on letterhead of the

Department of Geology, could be presumed to be from an

educational institution.” Id. By contrast, a “request from the

same person for drug information from the Food and Drug

Administration in furtherance of a murder mystery he is

writing would not be presumed to be an institutional request,

regardless of whether it was written on institutional

stationary.” Id.

The OMB Guidelines also speak to student requests. The

Guidelines purport to say that the “institutional versus

individual test” applies to “student requests as well” as teacher

requests. Id. But the Guidelines then turn around and say

that student requests to further coursework do not qualify as

educational-institution requests: “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 . . . .” Id. That lone statement in

the OMB Guidelines, if consistent with the statute and

otherwise binding in this case, would obviously mean that Sack

could not qualify as an educational-institution requester. Not

surprisingly, in denying Sack’s request to be categorized as an

educational-institution requester, the Government relied

heavily on that OMB Guideline.

8

B

We now must decide whether FOIA requests made by

students to further their coursework or other school-sponsored

activities are requests made by an “educational institution.”

To our surprise, no court of appeals has apparently decided that

question in a published opinion.

In common parlance, the term “educational institution” is

synonymous with “school.” See National Security Archive v.

Department of Defense, 880 F.2d 1381, 1383 (D.C. Cir. 1989)

(“The ordinary meaning of the term ‘educational institution’ is

‘school.’”). According to Black’s Law Dictionary, an

educational institution is a “school, seminary, college,

university, or other educational facility, though not necessarily

a chartered institution.” (10th ed. 2014).

But who within a school is part of the school for FOIA

purposes? At first blush, one might think that the term

“educational institution” in FOIA includes neither teachers nor

students, but refers only to the officers of the institution who

speak officially for the institution – for example, the president,

provost, or dean of a university. But that narrow category

would make no sense in the context of FOIA, which

contemplates researchers at educational institutions seeking

information from the Government. Indeed, the statute

characterizes an “educational institution” as an institution

“whose purpose is scholarly . . . research.” 5 U.S.C.

§ 552(a)(4)(A)(ii)(II). The members of an educational

institution likely to submit regular FOIA requests in pursuit of

scholarly research are obviously not the president, provost, or

dean of an educational institution. Rather, they are the

teachers and students at the school.

9

Not surprisingly, therefore, the Government has long

determined that teachers at educational institutions may

qualify as educational-institution requesters entitled to reduced

fees under FOIA. But the Government has distinguished

students from teachers and said that students who seek

documents to further their coursework or other

school-sponsored activities do not ordinarily qualify as

educational-institution requesters and are not eligible for

reduced fees.

We thus must decide whether the statutory term

“educational institution” is properly read, as the Government

reads it, to include teachers but exclude students from the

category of preferred requesters who are eligible for reduced

fees. We conclude that the Government’s reading is

inconsistent with the statute. Indeed, we think the

Government’s reading makes little sense at all.

Dictionaries generally define “school” to encompass

students as well as teachers. See, e.g., The American Heritage

Dictionary of the English Language (5th ed. 2011) (defining

“school” as, among other things, the “student body of an

educational institution”). Like teachers, students do research,

seek background information for paper topics, gather primary

documents, write papers, publish, and contribute to the

development and dissemination of knowledge within the

school and to the outside world. They do so in order to further

their coursework or other school-sponsored activities.

Students often seek access to government information to

pursue their particular research interests. And students often

lack the money (or would be unwilling to spend it) to pay the

extra fees that would be required for their FOIA requests if

they were denied classification as an educational institution.

10

It would be a strange reading of this broad and general

statutory language – which draws no distinction between

teachers and students – to exempt teachers from paying full

FOIA fees but to force students with presumably fewer

financial means to pay full freight.

To justify excluding students from the category of

educational-institution requesters, the Government cites a

snippet of legislative history. But the snippet does not support

the Government’s interpretation. During the legislative

debates, Senator Leahy, the sponsor of the bill amending FOIA

to limit fees for educational-institution requesters, stated: “A

request made by a professor or other member of the

professional staff of an educational or noncommercial

scientific institution should be presumed to have been made by

the institution.” 132 Cong. Rec. S14,298 (daily ed. Sept. 30,

1986) (statement of Sen. Patrick Leahy). Pointing to Senator

Leahy’s statement, the Government seems to seize on what it

perceives to be the statement’s negative implication: that a

request by a student should be presumed not to have been made

by the educational institution. We do not think that the

claimed negative implication follows from Senator Leahy’s

affirmative statement. The Senator said nothing one way or

another about students. And given that students and teachers

are essential elements of educational institutions, it seems just

as likely, if not more so, that Senator Leahy would have wanted

to make reduced fees available for students as well as teachers.

In any event, we must focus foremost on the text of the

statute. See Exxon Mobil Corp. v. Allapattah Services, Inc.,

545 U.S. 546, 567 (2005). And the text of the statute refers to

“educational institutions” without drawing a line between

teachers and students.

11

In defense of its position here, the Government also points

to an OMB Guideline. The Guideline states: “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” as a request made by an educational

institution. 52 Fed. Reg. at 10,014.

But the Government’s reliance on the OMB Guideline just

begs the question of whether the Guideline itself is consistent

with the statute. To begin with, the Government does not

claim that the OMB Guideline is entitled to Chevron deference,

presumably because OMB is not the only agency that

administers FOIA. See, e.g., DeNaples v. Office of the

Comptroller of the Currency, 706 F.3d 481, 487-88 (D.C. Cir.

2013) (citing Bowen v. American Hospital Association, 476

U.S. 610, 642 n.30 (1986)); Proffitt v. Federal Deposit

Insurance Corp., 200 F.3d 855, 860 (D.C. Cir. 2000).

In our view, OMB’s rule for student requests is

inconsistent with the statute. FOIA refers broadly to an

“educational institution.” As we have explained, we see no

good basis in the text or context of FOIA to draw a line here

between the teachers and students within the educational

institution. The Guideline’s ipse dixit distinction of students

from teachers is entirely unexplained and unpersuasive. The

Guideline says that a geology teacher seeking information

about soil erosion to support her research is entitled to reduced

fees. But why not the geology student seeking the same

information for the same reason? Crickets. We discern no

meaningful distinction for purposes of this statute between the

geology teacher and the geology student.

We recognize that OMB may (for good reason) want to

help fill and replenish the Government’s coffers. And OMB

therefore may want to extract as much money as possible from

12

those who make FOIA requests. OMB may also want to

discourage further FOIA requests to alleviate the burden on

already grossly overburdened FOIA offices in the Executive

Branch. But this statute, as we read it, does not empower the

Government to pursue fiscal balance or provide relief for the

FOIA bureaucracy on the backs of students. The statutory

text and context lead us to this simple conclusion: If teachers

can qualify for reduced fees, so can students.

To be clear, to qualify for reduced fees as an educational

institution, the requester – whether teacher or student – must

seek the information in connection with his or her role at the

educational institution. In other words, the requester may not

seek the information for personal or commercial use. Just as a

teacher’s ordinary role at an educational institution is to teach,

research, and produce scholarly works, a student’s role at an

educational institution is, at least in part, to pursue coursework

or other school-sponsored activities. A request from either a

teacher or a student seeking information that would help her

write a murder mystery or enhance her personal stock portfolio

presumably has no connection to the requester’s role at an

educational institution and would not justify reduced fees.

With that in mind, a government agency may seek some

assurance that the student is submitting the FOIA request to

further coursework or other school-sponsored activities. For

example, a FOIA request submitted with a copy of a student ID

or other reasonable identification of status as an enrolled

student in the school – together with a copy of a syllabus, a

letter from a professor, or the like – should suffice. To be

clear, we do not intend that list as exhaustive. We caution

agencies against requiring hard-to-obtain verifications that will

have the practical effect of deterring or turning away otherwise

valid student FOIA requests.

13

In sum, Sack was an educational-institution requester

entitled to reduced FOIA fees.

III

We turn next to the Exemption 7(E) issue. Citing that

exemption, the Department of Defense denied Sack’s request

for various Department reports about polygraph examinations.

To withhold documents under Exemption 7, the

Government must make a threshold showing that the “records

or information” were “compiled for law enforcement

purposes.” 5 U.S.C. § 552(b)(7); see also, e.g., Public

Employees for Environmental Responsibility v. U.S. Section,

International Boundary and Water Commission, U.S.-Mexico,

740 F.3d 195, 202 (D.C. Cir. 2014). On top of that, the

Government must demonstrate that production of such

“records or information” would cause at least one of the

specific harms described in the lettered subsections of

Exemption 7. Under Exemption 7(E), the Government must

demonstrate (i) that the withheld records or information

“would disclose techniques and procedures for law

enforcement investigations” and (ii) that their disclosure would

reasonably “risk circumvention of the law.” 5 U.S.C.

§ 552(b)(7)(E); see also Blackwell v. FBI, 646 F.3d 37, 41-42

(D.C. Cir. 2011).

We conclude that the polygraph reports at issue here meet

the threshold requirement of FOIA Exemption 7, as well as

both subsidiary requirements specific to Exemption 7(E).

First, the reports about polygraph use were compiled for

law enforcement purposes. Exemption 7 uses the term “law

enforcement” to describe “the act of enforcing the law, both

civil and criminal.” Public Employees for Environmental

14

Responsibility, 740 F.3d at 203. Concurring in Milner, Justice

Alito persuasively explained that the “ordinary understanding

of law enforcement includes . . . proactive steps designed to

prevent criminal activity and to maintain security.” Milner v.

Department of the Navy, 131 S. Ct. 1259, 1272 (2011) (Alito,

J., concurring); see also Public Employees for Environmental

Responsibility, 740 F.3d at 203. The reports at issue in this

case assist law enforcement agencies in taking “proactive

steps” to deter illegal activity and ensure national security. As

the Government notes, law enforcement agencies use

polygraphs to test the credibility of witnesses and criminal

defendants. Those agencies also use polygraphs to “screen

applicants for security clearances so that they may be deemed

suitable for work in critical law enforcement, defense, and

intelligence collection roles.” Declaration of Alesia Y.

Williams, Defense Intelligence Agency, Chief of FOIA

Services Section, at Joint Appendix 226. In Morley v. CIA,

we stated: “Background investigations conducted to assess an

applicant’s qualification, such as . . . clearance and

investigatory processes, inherently relate to law enforcement.”

508 F.3d 1108, 1128-29 (D.C. Cir. 2007) (internal quotation

marks omitted).

The Government has satisfactorily explained how

polygraph examinations serve law enforcement purposes. It

has also explained how the reports assessing the efficacy of

those examinations and identifying needed fixes likewise serve

law enforcement purposes. Put simply, the reports help

ensure that law enforcement officers optimally use an

important law enforcement tool. The reports were compiled

for law enforcement purposes.

Second, the reports contain information about techniques

and procedures for law enforcement investigations. As the

Government points out, the reports detail whether a particular

15

agency’s polygraph procedures and techniques are effective.

The reports identify strengths and weaknesses of particular

polygraph programs. In describing the effectiveness of

polygraph techniques and procedures, the reports necessarily

would disclose information about the underlying techniques

and procedures themselves, including when the agencies are

likely to employ them.

Third, release of the requested reports could reasonably

risk circumvention of the law. As the Government explained

in its Vaughn index responding to Sack’s request, the reports

identify deficiencies in law enforcement agencies’ polygraph

programs. Their release could enable criminal suspects,

employees with ill intentions, and others to subvert polygraph

examinations.

Even if some portions of the reports may be exempt under

Exemption 7(E), Sack maintains in the alternative that other

portions of the reports were “reasonably segregable” and so

should have been released. See 5 U.S.C. § 552(b). FOIA

requires that any “reasonably segregable portion of a record

shall be provided to any person requesting such record after

deletion of the portions which are exempt.” Id. Courts may

rely on agency affidavits to determine that documents withheld

pursuant to a valid exemption contain no reasonably

segregable information. See Armstrong v. Executive Office of

the President, 97 F.3d 575, 578 (D.C. Cir. 1996).

Here, the District Court concluded that the release of any

part of the reports – whether pertaining to the strengths of

polygraphs, their weaknesses, or anything else – would create

“at least a risk that subversive individuals will be armed with

advanced knowledge of the procedures used by the United

States to screen applicants for sensitive employment positions

and security clearances.” Sack v. Department of Defense, 6 F.

16

Supp. 3d 78, 91 (D.D.C. 2013). For that reason, the District

Court stated that the reports could be fully withheld. Our case

law is not crystal clear on our standard of review of a district

court’s substantive segregability determination. Compare

Powell v. Bureau of Prisons, 927 F.2d 1239, 1243 n.9 (D.C.

Cir. 1991) (rejecting abuse of discretion standard when

reviewing substantive determination of segregability), with

Boyd v. Criminal Division of the Department of Justice, 475

F.3d 381, 391 (D.C. Cir. 2007) (applying abuse of discretion

standard to segregability decision), and Johnson v. Executive

Office for U.S. Attorneys, 310 F.3d 771, 777 (D.C. Cir. 2002)

(perceiving “no error” without establishing standard of

review). But regardless of whether our review here is

deferential or de novo, we would reach the same result because

we agree with the District Court’s segregability determination.

IV

One final bit of housekeeping: Before this suit, Sack

filed a separate FOIA suit against the CIA, the Department of

Defense, and three other agencies. Pursuant to Rule 21 of the

Federal Rules of Civil Procedure, the District Court in that case

dismissed the claims against all of the non-CIA defendants and

stated that Sack would have to refile separate lawsuits against

each agency. Sack’s case against the CIA then went forward,

and she refiled this separate suit against the Department of

Defense. Sack now seeks review of the order in the prior case

dismissing the non-CIA defendants. Because that order

dismissed claims from a case not before us in this appeal, we

lack jurisdiction to review the order.

* * *

Sack was eligible for the reduced fees available to

educational-institution requesters. We therefore reverse the

17

judgment of the District Court on the FOIA fees issue. We

affirm the judgment of the District Court in all other respects,

including the Exemption 7(E) issue.

So ordered.