                     UNITED STATES DISTRICT COURT
                     FOR THE DISTRICT OF COLUMBIA

______________________________
                              )
ISLAND FILM, S.A.,            )
                              )
          Plaintiff,          )
                              )
          v.                  )       Civil Action No. 08-286 (RWR)
                              )
DEPARTMENT OF THE TREASURY,   )
                              )
          Defendant.          )
______________________________)


                           MEMORANDUM ORDER

     Plaintiff Island Film, S.A. brings this action under the

Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, challenging

the Department of the Treasury’s response to a request for

records relating to the Office of Foreign Assets Control’s

decision to block Island Film from receiving $30,000 in Cuba.

Island Film challenges withholdings and redactions that Treasury

has made under various FOIA exemptions, and the parties have

filed cross-motions for summary judgment.     Treasury argues in

part that it is entitled to fees from Island Film, and that

Island Film has not exhausted its administrative remedies because

it has failed to pay those fees.

     The FOIA requires agencies to promulgate regulations that

set a schedule for fees for “document search, duplication, and

review, when records are requested for commercial use[.]”    5

U.S.C. § 552(a)(4)(A)(ii)(I).    Treasury’s regulations provide
                                - 2 -

that commercial use requesters “are assessed charges which

recover the full direct costs of searching for, reviewing, and

duplicating the records sought[,]” and Treasury “may recover the

cost of searching for and reviewing records even if there is

ultimately no disclosure of records[.]”   31 C.F.R. § 1.7(a)(1).

A commercial requester is not required to pay these charges 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).    Treasury’s regulations provide that an

appropriate Treasury official will determine whether to grant a

fee reduction or waiver, but only if “the initial request

includes a request for reduction or waiver of fees[.]”    31 C.F.R.

§ 1.7(b).

     Paying fees, receiving a waiver, or appealing a refusal to

waive fees is necessary for a plaintiff to exhaust administrative

remedies.   See Maydak v. U.S. Dep’t of Justice, 254 F. Supp. 2d

23, 50 (D.D.C. 2003).   Exhaustion of administrative remedies is

generally a prerequisite to judicial review of an agency response

to a FOIA request.   Wilbur v. CIA, 355 F.3d 675, 677 (D.C. Cir.

2004) (noting that exhaustion of a FOIA request is a

jurisprudential doctrine, not jurisdictional).   “[W]hether the

plaintiff ‘filed’ suit before or after receiving a request for
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payment, the plaintiff has an obligation to pay for the

reasonable copying and search fees assessed by the defendant.”

Trueblood v. U.S. Dep’t of Treasury, IRS, 943 F. Supp. 64, 68

(D.D.C. 1996).

     Here, Treasury determined that Island Film is a commercial

requester, and Treasury calculated under its regulations that

Island Film owed $1,267.02 in fees to cover the costs of

searching and reviewing records, and for duplicating the

documents that Treasury disclosed.     (Def.’s Mem. of P. & A. in

Supp. of Def.’s Mot. for Summ. J. (“Def.’s Mem.”), Canter Decl.

¶¶ 12, 36-37.)   Island Film has not paid those fees, nor has it

sought a fee waiver.   (Id. ¶ 40.)   Island Film justifies its

nonpayment on the ground that “[s]ince [Treasury] has withheld 85

pages and extensively redacted other document[s, the] question is

what would the plaintiff be paying for.”    (Pl.’s Opp’n to Def.’s

Mot. for Summ. J. and Pl.’s Cross-Mot. for Summ. J. at 6.)

Island Film states that it “will await the Court’s decision on

this issue.”   (Id.)

     That Treasury withheld and redacted responsive documents

under various FOIA Exemptions has no bearing on Island Film’s

obligation to pay fees as a commercial requester.    See 31 C.F.R.

§ 1.7(a)(1).   Because it has not paid, committed to paying, or

sought a waiver of the $1,267.02 in fees, Island Film has not
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exhausted its administrative remedies.1   See Antonelli v. Bureau

of Alcohol, Tobacco, Firearms & Explosives, Civil Action No. 04-

1180 (CKK), 2005 WL 3276222, at *8 (finding that plaintiff failed

to exhaust his administrative remedies under the FOIA where he



     1
       Indeed, an agency may “require advance payment of any fee
. . . that . . . exceed[s] $250[,]” 5 U.S.C. § 552(a)(4)(A)(v),
in which case a plaintiff will not be deemed to have exhausted
its administrative remedies until it pays that fee. See
Trueblood, 943 F. Supp. at 68. One purpose of conditioning a
plaintiff’s exhaustion of administrative remedies on advance
payment of the fee in such a situation is to prevent the agency
from “‘bankrolling search and review[,] and duplicating
expenses’” when “‘there would never be any assurance whatsoever
that payment would ever be made once the requesters had the
documents in their hands.’” Id. (quoting Strout v. U.S. Parole
Comm’n, 842 F. Supp. 948, 951 (E.D. Mich. 1994).

     However, it would be similarly unfair if an agency ––
without first providing to the plaintiff a cost estimate –– could
conduct an expensive search while requiring the plaintiff to pay
the ultimate cost no matter how expensive the search proved to
be. That an agency must estimate the costs of a search and that
a plaintiff must pay, commit to pay, or seek a waiver of the
search fee prior to the agency undertaking the search, see
Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 66 (D.C. Cir. 1990),
ensures that an agency does not force a plaintiff to pay fees it
does not wish to incur and provides the parties an opportunity to
negotiate a mutually agreeable scope for any search. Without
acknowledging these concerns, Treasury, citing Trueblood, 943 F.
Supp. at 68, requests that Island Film be ordered to pay the fees
Treasury incurred by conducting the search before Island Film
paid or committed to paying those fees. (See Def.’s Mem. at 35.)
Trueblood, however, does not provide authority for ordering a
plaintiff to pay fees incurred by an agency that has conducted a
search and produced documents to the plaintiff before the
plaintiff paid or committed to paying the requisite fees.
Rather, Trueblood held that an agency merely was not obligated to
turn over requested documents until the plaintiff paid the fee.
943 F. Supp. at 69. Because Treasury has already turned over the
requested documents, Trueblood is inapposite here, and Treasury’s
request to order the plaintiff to pay the fees will be denied.
                               - 5 -

justified his refusal to pay the assessed search fee on the

ground that the price was “extravagant”).   Therefore, Island Film

is not entitled at this time to judicial review of its claims

that Treasury improperly withheld and redacted records under

various FOIA exemptions.   However, because Island Film’s

opposition states that it may be willing to pay the assessed

fees, dismissing Island Film’s complaint would be premature

before providing Island Film an opportunity to pay or commit to

paying the fees.   Accordingly, it is hereby

     ORDERED that the parties’ cross motions [11, 12] for summary

judgment be, and hereby are, DENIED without prejudice.   It is

further

     ORDERED that the parties file by April 8, 2011 a proposed

order and joint status report stating whether Island Film has

paid or committed to paying the assessed fees.   If appropriate,

by that deadline the parties may move to reinstate their cross-

motions for summary judgment or propose a schedule by which the

case should proceed.

     SIGNED this 9th day of March, 2011.


                               __________/s/_______________
                               RICHARD W. ROBERTS
                               United States District Judge
