                     FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


 A BETTER WAY FOR BPA,                             No. 16-35414
               Plaintiff-Appellant,
                                                     D.C. No.
                      v.                          3:15-cv-05896-
                                                       RBL
 UNITED STATES DEPARTMENT OF
 ENERGY BONNEVILLE POWER
 ADMINISTRATION,                                      OPINION
               Defendant-Appellee.



        Appeal from the United States District Court
          for the Western District of Washington
        Ronald B. Leighton, District Judge, Presiding

             Argued and Submitted April 13, 2018
                     Seattle, Washington

                       Filed May 25, 2018

     Before: Michael Daly Hawkins and M. Margaret
    McKeown, Circuit Judges, and James A. Teilborg, *
                     District Judge.

                  Opinion by Judge McKeown

    *
      The Honorable James A. Teilborg, United States District Judge for
the District of Arizona, sitting by designation.
2          A BETTER WAY FOR BPA V. U.S.D.O.E.

                          SUMMARY **


                 Freedom of Information Act

    The panel reversed the district court’s dismissal of a suit
brought under the Freedom of Information Act by an
environmental nonprofit organization alleging that the
Department of Energy Bonneville Power Administration
failed to turn over documents requested by one of its
members, on behalf of the organization.

    The district court dismissed the suit for lack of standing
after finding that the electronically submitted Freedom of
Information Act request form failed to adequately identify
the organization, A Better Way for BPA, as the requester. In
reversing the district court, the panel held that common sense
must prevail in determining who is a requester under the
Freedom of Information Act, and that in this case the online
form clearly identified the organization as the requester. The
organization therefore had standing to sue. The panel
determined that viewing the form as a whole, it was clear
that the document request was made on behalf of the
organization, that the request was not for commercial
purposes, that there was an obvious public interest, and that
the requester had members. The panel further held that any
confusion in the electronic form was of the Department’s
own making and could easily be fixed. Moreover, to the
extent ambiguity existed, the follow-up correspondence
between the organization and the Department affirmed that
the organization was the requestor.

    **
       This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
          A BETTER WAY FOR BPA V. U.S.D.O.E.               3

                        COUNSEL

Jacob Brooks (argued) and David A. Bricklin, Bricklin &
Newman LLP, Seattle, Washington, for Plaintiff-Appellant.

Brian Kipnis (argued), Assistant United States Attorney;
Annette L. Hayes, United States Attorney; United States
Attorney’s Office, Seattle, Washington; for Defendant-
Appellee.


                        OPINION

McKEOWN, Circuit Judge:

    Submitting a Freedom of Information Act (“FOIA”)
request electronically is easy—fill out an online form, click
submit, and wait for the documents. Cheryl Brantley did
precisely that on behalf of A Better Way for BPA (“A Better
Way”), an environmental nonprofit group. Almost a year
later, the documents had not been turned over, so A Better
Way sued the Department of Energy Bonneville Power
Administration (“BPA”). The government challenged the
group’s standing and the district court dismissed the suit,
saying that the submitted form did not adequately identify
the organization as the requester. We disagree. FOIA forms
should not be a “gotcha” proposition requiring a
lexicographer to discern who made the request. But here,
the submitted form’s unambiguous reference to A Better
Way, confirming correspondence, and common sense make
clear that A Better Way was the requester and consequently
has standing to sue.
4        A BETTER WAY FOR BPA V. U.S.D.O.E.

                       Background

    What follows is a detailed chronology of the events
related to the FOIA request. We provide these specifics
because both the submitted form and the correspondence
between the requester and agency are important to our
conclusion that A Better Way made the request and thus has
standing to bring this suit.

    Cheryl Brantley, a member of A Better Way, submitted
a FOIA request on January 31, 2015. Using the electronic
form on BPA’s website, Brantley provided the following
information:




Brantley listed her name under “Name” and “A Better Way
for BPA” under “Organization,” along with A Better Way’s
mailing address.

    The online form contained a second section, titled “Type
of Requester,” so that the agency could determine whether
to waive fees associated with locating and reviewing the
requested documents. See 5 U.S.C. § 552(a)(4)(A)(ii);
10 C.F.R. § 1004.9. The form instructed the requester to
          A BETTER WAY FOR BPA V. U.S.D.O.E.                  5

“[s]elect a description of yourself and the purpose of the
request to help determine your category for assessing fees.”
The form provided four options:

   •   An individual seeking information for personal use
       and not for commercial use;

   •   Affiliated with an educational or noncommercial
       scientific institution, and this request is made for
       scholarly or scientific purposes and not for
       commercial use;

   •   Affiliated with a private corporation and seeking
       information for the use [sic] in the company’s
       business; [or]

   •   A representative of the news media affiliated with
       ______ and the request is made as part of news
       gathering and not for commercial use.

Brantley selected the first option, “[a]n individual seeking
information for personal use and not for commercial use.”

    On the next section of the form, “Fees and Fee Waivers,”
Brantley requested a waiver or reduction of fees. She noted
that “[d]isclosure of the requested information is in the
public interest because it is likely to contribute significantly
to public understanding of the operations or activities of the
BPA and the I-5 Corridor Reinforcement Project and is not
primarily in any commercial interest.” In response to the
inquiry whether there would be a “contribution to an
understanding by the general public of the subject likely to
result from disclosure, taking into account your ability and
intent to disseminate the information to the public in a form
that can further understanding of the subject matter,”
Brantley stated: “Yes, I have technical advisers to help
6         A BETTER WAY FOR BPA V. U.S.D.O.E.

disseminate the information to our members.” Finally, in
disclosing whether the “requester has a commercial interest
that would be furthered by the requested disclosure,” the
answer was clear—“Disclosure of this information will not
be used for commercial purposes.”

    A BPA FOIA Public Liaison representative responded to
the request by email on February 3, 2015. The email
suggested that Brantley rephrase certain parts of the request
and narrow others, and noted that certain requests would
trigger a process resulting in a delay of “close to two years.”

    Brantley responded: “Our attorney, David Bricklin, will
be following up with you on these questions next week. I
give my permission for him to discuss the questions you
have with the FOIA request.” (Emphasis added).

    After clarifying some issues with Bricklin, on February
18, 2015, the agency sent a letter addressed to “Cheryl
Brantley[,] A Better Way for BPA,” stating that BPA had
been in touch with Bricklin, granting a fee waiver, noting the
complexity of the request, and estimating completion by
September 30, 2015. On September 28, 2015, BPA sent
another letter, addressed the same way, advising of its need
to submit certain records to third-party entities for review
and thus “extending the target date for BPA’s response to
your request to March 31, 2016.”

    The agency continued to communicate with A Better
Way’s counsel. Significantly, on November 13, 2015, BPA
sent an email to Bricklin with the subject line: “BPA-2015-
00597-F-Brantley (A Better Way for BPA) - DEIS for I-5
Corridor Reinforcement Project - 5 U.S.C. § 552(b)(4)
determination letters.” Two days later, BPA sent another
email to Bricklin with a similar subject line: “BPA-2015-
00597-F-Brantley (A Better Way for BPA) - DEIS for I-5
          A BETTER WAY FOR BPA V. U.S.D.O.E.                  7

Corridor Reinforcement Project - communication with the
requester’s counsel.”

    A Better Way filed suit on December 9, 2015, citing
BPA’s failure to produce the documents requested in the
FOIA request. On January 8, 2016, BPA sent a final
response to the request—addressed to “Cheryl Brantley[,] A
Better Way”—producing certain documents and
withholding others due to FOIA exemptions. Soon after,
BPA filed a motion to dismiss the suit for lack of subject
matter jurisdiction, asserting that A Better Way did not have
standing because Brantley, not A Better Way, was the
requester.

                           Analysis

    The only issue before us is whether A Better Way has
standing to maintain this FOIA suit. As the government
acknowledged, “[u]nder FOIA, anyone whose request to an
agency for records has been denied has standing to bring an
action.” The D.C. Circuit—home to many FOIA appeals—
succinctly stated this well-accepted principle: “The
requester is injured-in-fact for standing purposes because he
did not get what the statute entitled him to receive.”
Zivotofsky ex rel. Ari Z. v. Sec’y of State, 444 F. 3d 614, 617–
18 (D.C. Cir. 2006); see 5 U.S.C. § 552(a)(4)(B) (providing
that a FOIA requester that has exhausted administrative
remedies may sue for injunctive relief to obtain records
“improperly withheld” by the agency). So, this case boils
down to a simple question: Who was the requester—A
Better Way, which filed suit, or Brantley, who did not?

    We conclude that A Better Way was the requester and
thus has standing to sue. The most obvious reason for our
conclusion is that the request itself listed “A Better Way for
BPA” on the line labeled “Organization.” It is significant
8          A BETTER WAY FOR BPA V. U.S.D.O.E.

that filling out the “Organization” field was optional. By
contrast, the name, address, and willingness-to-pay-fees
fields were mandatory—meaning that Brantley could have
submitted her online form by listing her own name and
address and omitting any “Organization.” Because she did
not do so, there could hardly be any doubt that Brantley was
filing the request on behalf of A Better Way. 1

    BPA counters that in the following section, titled Type
of Requester, Brantley checked the option “[a]n individual
seeking information for personal use and not for commercial
use.” In BPA’s view, this meant that Brantley, not an
organization, was the requester. The problem with this
argument is that the agency authored the form and provided
no option for a nonprofit or nongovernmental organization,
or even an “other” category. Instead, the only options were:

    •   An individual seeking information for personal use
        and not for commercial use;

    •   Affiliated with an educational or noncommercial
        scientific institution, and this request is made for
        scholarly or scientific purposes and not for
        commercial use;

    •   Affiliated with a private corporation and seeking
        information for the use [sic] in the company’s
        business; [or]




    1
     It would be unfair to expect Brantley to have put “A Better Way
for BPA” in the “Name” field; doing so would have rendered the
“Organization” field superfluous.
          A BETTER WAY FOR BPA V. U.S.D.O.E.                9

   •   A representative of the news media affiliated with
       ______ and the request is made as part of news
       gathering and not for commercial use.

Of the available choices, the only other possible option apart
from the one Brantley selected was the “private corporation”
box. However, in normal parlance, the public does not think
of nonprofit organizations as “private corporation[s],” a
view reinforced by the form’s reference to “the company’s
business.” See 5 U.S.C. § 301 note (Plain Writing in
Government Documents) (encouraging agencies to use
“plain writing” on their websites and in issuing new
documents, including electronic forms).

    According to BPA’s instructions on “How to Submit a
FOIA Request,” the agency asks for the Type of Requester
in order “to help determine the appropriate assessment of
fees.” The instructions go on to provide examples of a
requester’s status description, including the following:

       I request a waiver of all fees for this request.
       Disclosure of the requested 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 my
       commercial interest.        Please include a
       specific explanation.

That statement is accompanied by a Note:

       An individual requester, scholar, or public
       interest group is more likely to qualify for a
       fee waiver than a commercial user.
10        A BETTER WAY FOR BPA V. U.S.D.O.E.

Although these instructions reference a public interest group
as a type of requester, the electronic form did not provide
this option. Despite the form’s limitations, here the
requester made clear that the “requested information is in the
public interest because it is likely to contribute significantly
to public understanding of the operation or activities of the
BPA and the I-5 Corridor Reinforcement Project and is not
primarily in any commercial interest.” The requester further
stated on the form that there were “technical advisers to help
disseminate the information to our members.”

    Viewing the form as a whole, it is clear that the request
was made on behalf of A Better Way, that the request was
not for commercial purposes, that there was an obvious
public interest related to BPA’s I-5 Corridor Reinforcement
Project, and that the requester had “members,” hardly a
characteristic of an individual requester. Any confusion in
the electronic form was of BPA’s own making and could
easily be fixed by including a place to check that the request
is made “on behalf of” an organization or by adding “public
interest organization” or “other” options under Type of
Requester. Indeed, the use of FOIA requests by nonprofit
public interest organizations is well known and the option
for fee waivers specifically anticipates requests in the public
interest. See, e.g., Judicial Watch, Inc. v. Rossotti, 326 F.3d
1309, 1310 (D.C. Cir. 2003) (nonprofit group focused on
“fighting corruption by government officials” seeking
records regarding government contracts); Elec. Privacy Info.
Ctr. v. U.S. Dep’t of Homeland Sec., 760 F. Supp. 2d 4, 7
(D.D.C. 2011) (privacy-minded nonprofit seeking records
concerning the use of body scanner technology at airports);
Jackie Northam, Watchdogs Try To Get Mar-A-Lago
Answers, Mostly Turn Up More Questions, NPR (Sept. 15,
2017) (detailing the work of two nonprofit groups using
          A BETTER WAY FOR BPA V. U.S.D.O.E.              11

FOIA to obtain records concerning visitors to President
Trump’s Florida resort).

    To the extent ambiguity exists with how Brantley filled
out the form—and we do not think that any does—the
follow-on correspondence between BPA and the requester
affirms that A Better Way was the requester and that BPA
treated A Better Way as the requester. For example, BPA
addressed letters to “Cheryl Brantley[,] A Better Way for
BPA,” twice placed “A Better Way” in the subject line of
emails concerning the request, and regularly communicated
with the organization’s lawyer. This treatment was
unsurprising, as A Better Way and BPA were hardly
strangers. During a six-month period from December 2009
to June 2010, for instance, the organization submitted ten
FOIA requests to the agency. BPA cannot reverse course
now and convince us that the organization with whom it was
regularly corresponding and which it acknowledged as the
requester should be out of court.

    In the end, common sense must prevail in determining
who is a requester under FOIA. This is not a situation where
there was a “passing reference” to the named plaintiff on the
FOIA request, McDonell v. United States, 4 F.3d 1227, 1238
n.6 (3d Cir. 1993), where the agency had to divine the actual
requester, or where counsel dealt with the agency without
any indication of who was requesting the documents. The
online form clearly identified A Better Way as the
requester—in the “Organization” field and in its reference to
“our members”—and BPA acknowledged as much in
corresponding with the group. We are left with the firm
conclusion that the suit should not have been dismissed for
lack of standing.

   REVERSED.
