                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
_____________________________
                               )
CITIZENS FOR RESPONSIBILITY    )
AND ETHICS IN WASHINGTON,      )
                               )
               Plaintiff,      )
                               )
                               )    Civ. No. 05-2078 (EGS)
          v.                   )
                               )
U.S. DEPARTMENT OF JUSTICE,    )
               Defendant.      )
_____________________________ )


                        MEMORANDUM OPINION

     Plaintiff, Citizens for Responsibility and Ethics in

Washington (“CREW”), commenced this action against the United

States Department of Justice (“the DOJ”) pursuant to the Freedom

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

information concerning the government’s decision to reduce its

monetary penalty request in its ongoing litigation against the

tobacco industry.

     Pending before the Court is Plaintiff’s Motion for Summary

Judgment on its entitlement to a fee waiver under FOIA.     Upon

consideration of the motion, the response and reply thereto, the

applicable law, and the entire record, Plaintiff’s Motion for

Summary Judgment on its entitlement to a fee waiver under FOIA is

GRANTED.   Accordingly, the fees incurred by Defendant in response

to Plaintiff’s request for documents regarding the reduction in

penalties at issue in this case shall be waived.
I.   Background

     A.   Statutory and Regulatory Framework

     FOIA provides a “statutory right of public access to

documents and records” held by federal government agencies.

Pratt v. Webster, 673 F.2d 408, 413 (D.C. Cir. 1982).      In that

way, FOIA “embodies a general philosophy of full agency

disclosure unless information is exempted under clearly

delineated statutory language.”       Id. (internal quotation marks

omitted).   FOIA also requires each agency to promulgate

regulations specifying a fee schedule for FOIA requests and

establishing guidelines for the waiver or reduction of fees.      5

U.S.C. § 552(a)(4)(A)(I).    Furthermore, FOIA mandates that

responsive documents “shall be furnished without any charge or at

a charge reduced . . . 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.”   Id. § 552(a)(4)(A)(iii) (emphasis added).

     The DOJ has promulgated its own regulations regarding the

processing of fee waivers.    See 28 C.F.R. § 16.11(k)(1-2).    Under

DOJ regulations, the public-interest requirement implicates

consideration of four factors: 1) whether the subject concerns

the operations or activities of the government; 2) the

informative value of the information, or whether it will


                                  2
contribute to an understanding of the subject; 3) the

information’s contribution to greater understanding by the

public; and 4) the significance of that contribution to public

understanding.   Id. § 16.11(k)(2)(i-iv).


     B.   Factual and Procedural Background

     CREW is a non-profit organization that strives to inform the

public about the activities of government officials.      Compl. ¶ 4.

The FOIA request at issue came out of the litigation surrounding

United States v. Philip Morris, Inc., a racketeering case brought

on behalf of the United States against the tobacco industry.1        On

June 7, 2005, DOJ attorneys requested that as a penalty for the

tobacco industry’s violations, the court order the industry to

fund a $10 billion smoking cessation program, at a rate of $2

billion per year for five years. Compl. ¶ 16.      As reported by the

newspapers closely following the tobacco litigation, this

proposed penalty represented a significant departure from the

government’s position in the case up to that point, which was a

$130 billion smoking cessation program, at a rate of $5.2 billion

per year for twenty-five years.       Id. at ¶¶ 16-18; Pl.’s Mem. P. &

A. Supp. Mot. Summ. J. (“Pl.’s Mem.”) at 1.      That reduction in

penalties led CREW to believe there had been “political pressure


1
   Defendants included Philip Morris, R.J. Reynolds, Brown &
Williamson Tobacco Co., and British American Tobacco. Compl. ¶
15; see also United States v. Philip Morris, Inc., No. 99-2496
(D.D.C.).

                                  3
applied to career DOJ attorneys to protect the financial interest

of tobacco companies that had provided generous campaign

contributions.”2   Pl.’s Mem. at 1.

     In line with its belief that gaining access to documents

concerning the reduction in penalties would “reveal meaningful

information about the operations and activities of the federal

government,” id. at 2, CREW made a FOIA request, by letter on

June 28, 2005, for “all records relating in any way to the

government’s proposed penalty in United States of America v.

Philip Morris, Inc. et. al.”   Letter from Anne Weismann to James

Kovackas (June 28, 2005), attached as Ex. 1(A) to Def.’s Opp’n to

Pl.’s Mot. Summ. J. (“Def.’s Opp’n”). Specifically, CREW

requested

     all memoranda, communications and records of any kind
     and from any source, regardless of format, medium, or
     physical characteristics, from January 1, 2001, to the
     present, discussing or mentioning in any way any
     penalty that the U.S. Department of Justice, on behalf
     of the United States of America, can, may, should or
     will propose in the above-referenced litigation . . . .
     This request includes, but is not limited to, records
     discussing, mentioning, or referring in any way to the
     government’s decision to reduce the penalties it is
     seeking against the tobacco industry from $130 billion
     to $10 billion . . . [and] records relating in any way
     to any offer of settlement in the tobacco lawsuit from
     any source whatsoever.



2
  This change in penalty also sparked concerns from several
congressmen, which prompted a request of DOJ’s Inspector General
to investigate whether improper political interference led to the
government’s change in the penalty it was seeking from the court.
Compl. ¶¶ 19, 20.

                                 4
Id.   In its letter, CREW also sought expedited processing of its

request under 5 U.S.C. § 552(a)(6)(E)(i) and a fee waiver under

5 U.S.C. § 552(a)(4)(A)(iii).    Id.

      The DOJ granted CREW’s request for expedited processing, but

denied the fee waiver on the grounds that responsive documents

would be protected from disclosure under the deliberative-process

and work-product privileges.    Letter from James Kovackas to Anne

Weismann (July 7, 2005), attached as Ex. 1(B) to Def.’s Opp’n.

The DOJ then advised CREW of the likely costs associated with its

request, asked if the organization would be willing to pay those

fees, and suggested a narrowing of the scope of the request.3

Id.   CREW’s appeal from that determination was denied on the

grounds that CREW’s allegations were too ephemeral to support a

fee-waiver request and that, therefore, the request was not

likely to contribute to the public’s understanding. Letter from

Melanie Ann Pustay to Ann Weismann (Jan. 19, 2006), attached as

Ex. 2(E) to Def.’s Opp’n.   In addition, the DOJ notified CREW of

its position that the fee-waiver provision of FOIA refers only to


3
   CREW did later narrow its request to “documents dealing with
the identification and selection of remedies sought by the
Department and any changes to particular remedies sought by the
Department from January 2005 onward, including records
discussing, mentioning or referring in any way to the
government’s decision to reduce the penalties it is seeking
against the tobacco industry from $130 billion to $10 billion or
the government’s decision to offer testimony from any witness
during the remedies phase of trial in United States v. Philip
Morris.” Letter from James Kovakas to Anne Weismann (March 8,
2006), at 1, attached as Ex. 1(E) to Def.’s Opp’n.

                                  5
disclosable portions of the record.   Id.    As such, because the

DOJ claimed that information requested by CREW was “virtually

inherently protected” from disclosure by the attorney-client,

deliberative-process, or work-product privileges, it deemed much

of CREW’s request ineligible for a fee waiver.       Id.    The DOJ

agreed to waive fees for releasable documents that otherwise

satisfied the public-interest standard.     Id.    CREW’s waiver

ineligibility was confirmed on appeal.    Letter from Daniel

Metcalfe to Ann Weismann (Jan. 23, 2006), attached as Ex. 1(D) to

Def.’s Opp’n.

      Following a full initial briefing and two hearings, the

Court granted discovery on the issue of whether the DOJ acted in

bad faith in delaying its processing of CREW’s FOIA requests.

After discovery was completed, the parties then filed cross-

motions for summary judgment on that issue.       The briefing on

those motions was completed in late December 2006.         The Court

issued a minute order on March 31, 2008, directing the parties to

brief the issue of entitlement to a fee waiver.       The cross-

motions for summary judgment on bad faith were denied without

prejudice to refiling pending resolution of the fee-waiver issue

now before the Court.


II.   Standard of Review

      Pursuant to Federal Rule of Civil Procedure 56, summary

judgment should be granted if the moving party has shown that

                                 6
there are no genuine issues of material fact and that the moving

party is entitled to judgment as a matter of law.     See Fed. R.

Civ. P. 56; Waterhouse v. District of Columbia, 298 F.3d 989,

991-92 (D.C. Cir. 2002).    In determining whether a genuine issue

of material fact exists, the Court must view all facts in the

light most favorable to the non-moving party.     See Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

       Agency fee-waiver determinations are subject to de novo

review by this Court, limited to the record before the agency at

the time of its decision.    5 U.S.C. § 552(a)(4)(A)(vii); see

also, e.g., Judicial Watch, Inc. v. Rossotti, 326 F.3d 1309, 1311

(D.C. Cir. 2003).    Parties requesting a fee waiver under FOIA

bear the burden of proving their entitlement to such a fee

waiver.    See Judicial Watch, Inc. v. Dep’t of Justice, 365 F.3d

1108, 1126 (D.C. Cir. 2004).    However, “Congress amended FOIA to

ensure that it be liberally construed in favor of waivers for

noncommercial requesters.”     Rossotti, 326 F.3d at 1312 (internal

quotation marks omitted).


III.    Discussion

       With the aforementioned principles surrounding FOIA in mind,

the Court turns to the fee-waiver request at issue, and

determines that CREW’s FOIA request meets the fee-waiver

requirements under both FOIA and the DOJ’s internal regulations.



                                  7
Fee-waiver requests are evaluated based on the face of the

request, not on the possibility of eventual exemption from

disclosure.   Ctr. for Medicare Advocacy, Inc. v. Dep’t of Health

& Human Servs., 577 F. Supp. 2d 221, 241 (D.D.C. 2008); see also

Carney v. Dep’t of Justice, 19 F.3d 807, 815 (2d Cir. 1994);

Judicial Watch, Inc. v. Dep’t of Energy, 310 F. Supp. 2d 271, 295

(D.D.C. 2004), rev’d in part on other grounds, 412 F.3d 125 (D.C.

Cir. 2005).   Exceptions to this standard of review are made only

where information is “patently exempt” on the face of the

request.   S. Utah Wilderness Alliance v. Bureau of Land Mgmt.,

402 F. Supp. 2d 82, 89-90 (D.D.C. 2005).   Because the requested

information was not patently exempt from disclosure, CREW’s

request should have been evaluated on its face.   The DOJ’s

failure to do so was improper, as it based its rejection of

CREW’s request on the likelihood of later exemptions, a factor

not controlling under the terms of FOIA.   See Eudey v. CIA, 478

F. Supp. 1175, 1177 (D.D.C. 1979) (concluding that the agency’s

refusal to waive fees was arbitrary and capricious because it was

based on an improper consideration of how many documents would

ultimately be released).

     Had CREW’s request been properly evaluated on its face, it

would have fallen within the statutory requirements of FOIA and

DOJ regulations.   The DOJ contends that the claim was too

“ephemeral” to be likely to contribute to public understanding.


                                 8
Letter from Melanie Ann Pustay to Ann Weismann (Jan. 19, 2006),

attached as Ex. 2(E) to Def.’s Opp’n.       However, given the well-

publicized nature of and interest in the reduction of fees in the

tobacco litigation, an interest that formed the basis of CREW’s

request, the contention that information on this issue would

inform the public understanding is not such a bare allegation as

to warrant rejection by this Court.       Moreover, the information

was not already publicly available, as made clear by the DOJ’s

claims of eligibility for exemption.       Therefore, the request was

in the public interest; and because the information is not in

CREW’s commercial interest, the request falls within FOIA’s fee-

waiver provision.

     A. Though some information requested by CREW may
     eventually be exempt from actual disclosure, CREW is
     not ineligible for a fee waiver on that basis because
     the records requested were not patently exempt on their
     face.

     The DOJ contends that availability of fee waivers for

information requested in the public interest applies only to

information actually released to the public.        See Def.’s Opp’n at

8-13.   As such, it argues that satisfaction of the public-

interest requirement is ultimately irrelevant for purposes of

fee-waiver determinations if that information meets any available

exemption from disclosure.   Id.       This interpretation of the fee-

waiver provision is contrary to previous readings of the statute,

which have consistently held that a request for a fee waiver


                                   9
“should be evaluated based on the face of the request and the

reasons given by the requester in support of the waiver, ‘not on

the possibility that the records may ultimately be determined to

be exempt from disclosure.’”   Ctr. for Medicare Advocacy, 577 F.

Supp. 2d at 241 (quoting Judicial Watch, Inc. v. Dep’t of

Transp., 2005 WL 1606915, at *4 (D.D.C. July 7, 2005)); Dep’t of

Energy, 310 F. Supp. 2d at 295 (D.D.C. 2004), rev’d in part on

other grounds, 412 F.3d 125 (D.C. Cir. 2005); see also Eudey, 478

F. Supp. at 1177 (explaining that FOIA’s fee-waiver provision

“does not permit a consideration of how many documents will

ultimately be released”).

     The DOJ contests the above interpretation, relying on the

presence of the term “disclosure” in FOIA’s fee-waiver provision

for its argument that only materials actually disclosed are

relevant for purposes of fee-waiver eligibility.   See Def.’s

Opp’n at 8-13.   However, the Court finds this interpretation to

be incompatible with prior case law at best and disingenuous at

worst.   The DOJ’s contention that “[t]his Circuit has held that a

request for a fee waiver should be judged on the basis of the

records actually disclosed, and not merely on the basis of what

was requested,” id., creates a rule never before articulated and

ignores the previously cited case law standing for the opposite

proposition.

     The cases upon which the DOJ relies for support are


                                10
distinguishable on their facts and, in any event, do not stand

for the proposition that only actual disclosure should be

contemplated.    See Dep’t of Justice, 365 F.3d at 1126 (discussing

statutory language that “disclosure” must benefit the public,

considering whether the request met that factor, and affirming

the denial of a blanket fee waiver based on an evaluation of

documents that had already been released); VoteHemp, Inc. v. Drug

Enforcement Admin., 237 F. Supp. 2d 55, 62 (D.D.C. 2002) (same);

see also Klein v. Toupin, 2006 WL 1442611, at *4 (D.D.C. May 24,

2006) (upholding denial of a fee waiver where requestor failed to

show that “disclosure of the documents he sought would serve the

public interest” (emphasis added)).   From these cases, the DOJ

extrapolates a new “actual disclosure” requirement.    See Def.’s

Opp’n at 8-13.   The Court, however, is not persuaded that

“disclosure” in the statute speaks to anything other than a

necessary assessment of whether or not the request seeks

documents that, if disclosed, would be in the public interest.4

     In light of prior case law, the Court finds no serious room

for doubt that fee-waiver requests are reviewed based on the face

of the requested documents, not in terms of actual disclosable


4
   As discussed further below, this case is also distinguishable
from cases where the request for a fee waiver could be evaluated
based on documents that have already made clear. To the
contrary, the DOJ has claimed that most of the documents
requested are exempted from disclosure. The DOJ’s reliance on
cases addressing documents that have already been produced is
therefore misplaced.

                                 11
content.   A potential exception to that rule of general waiver

eligibility applies where requested documents are “patently

exempt” on the face of the request.   See Carney, 19 F.3d at 815

(“[I]t would be proper to deny a fee waiver on [the basis that

the records may have been exempt from disclosure] only if the

request was for patently exempt documents); Ctr. for Biological

Diversity, 546 F. Supp. 2d at 729-30 (rejecting argument that

documents were patently exempt); S. Utah Wilderness Alliance, 402

F. Supp. 2d at 89-90 (same)5; Dep’t of Energy, 310 F. Supp. 2d at

295 (same), rev’d in part on other grounds, 412 F.3d 125 (D.C.

Cir. 2005).   However, the above cases demonstrate that the

patently exempt standard sets a high bar for denial of a fee

waiver, and the DOJ has not advanced any arguments that CREW’s

request ought to be excluded as patently exempt under any of the

three privileges that it deems applicable.   As such, the

exception is not at issue, and the DOJ erred in failing to

evaluate CREW’s request on its face without regard to whether the

information would be eventually exempt from disclosure.

     The Court’s rejection of a governmental ability to base

rejections of fee waivers on potential susceptibility to

5
   CREW incorrectly claims that Southern Utah rejected the
“patently exempt” approach. See Pl.’s Mem. at 16 n.6. CREW’s
reliance on the court’s statement that “the term ‘patently
exempt’ appears nowhere in the statutory text of FOIA” ignores
subsequent paragraphs incorporating the “patently exempt” test
into reasoning that a fee waiver was improperly denied. See S.
Utah Wilderness Alliance, 402 F. Supp. 2d at 90.

                                12
exemption is justified by the statutory allocation of

responsibility under FOIA.    As noted, judicial review in a fee-

waiver challenge is “limited to the record before the agency” at

the time of that determination.     Project on Military Procurement

v. Dep’t of Navy, 710 F. Supp. 362, 367 (D.D.C. 1989) (quoting 5

U.S.C. § 552(a)(4)(A)(vii)).    Here, the DOJ admits that it has

not reviewed all of the documents requested by CREW, noting the

large number likely to be responsive.     See Letter from James

Kovakas to Anne Weismann (March 8, 2006), at 2, attached as Ex.

1(E) to Def.’s Opp’n.    Therefore, those records cannot be

reviewed, as they have not yet been before the agency.    Allowing

those documents to form the basis for denial of a fee waiver

would deprive CREW of the opportunity to challenge an actual

decision by the DOJ to withhold specific information.     See

Project on Military Procurement, 710 F. Supp. at 367.

     If the actual withholding of documents under FOIA were

challenged, the burden would be on the defendant to justify

nondisclosure.    Id.   As such, basing eligibility for a fee waiver

on likely exemption from disclosure would improperly invert the

burden of proof, putting the burden on the plaintiff to prove the

validity of its request for documents when that burden should

rest with the agency.     See S. Utah Wilderness Alliance, 402 F.

Supp. 2d at 90.   Moreover, refusing a fee waiver on grounds of

potential ineligibility for disclosure would force CREW to make a


                                  13
payment before the claimed exemptions were ever tested in court.

The Court is troubled by the potential deterrent effect that

result could have with regard to requesters like CREW “testing

the bounds of the FOIA exemptions,” and by the consequent ability

of the agency to obtain results based on assertions of privilege

that have not yet been tried.        See id. (quoting Carney, 19 F.3d

at 815); see also Project on Military Procurement, 710 F. Supp.

at 367 (noting that allowing potential exemptions to play a role

in fee-waiver determinations would put “the cart before the

horse[,] requiring the Court to pass upon the validity of

withholding documents before the agency decides the documents are

to be withheld”).     While some records may be withheld lawfully

under FOIA, the determination of what will actually be disclosed

is not properly part of the initial inquiry into whether a fee

waiver is applicable.6

      B. Because CREW is requesting information in the
      public interest that is not in the commercial interest
      of the requester, it meets the public-interest
      requirement of FOIA and is eligible for a fee waiver.

      FOIA requires each agency to waive or reduce fees for

information requested in the public interest that is not

primarily in the commercial interest of the requester.             5 U.S.C.

§ 552(a)(4)(A)(iii).      DOJ regulations specify the following



6
  Where an agency claims that requested documents are exempt from disclosure,
the proper course is for it to provide an index of those documents under the
process laid out in Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973).

                                      14
criteria for determining whether a particular request is in the

public interest: 1) whether the subject concerns the operations

and activities of the government; 2) the informative value of the

requested information; 3) the contribution to a greater

understanding by the public; and 4) the significance of that

contribution.   See 28 C.F.R. § 16.11(k)(2)(i-iv).   The DOJ has

not contested that CREW’s request concerns the operations and

activities of the government, nor that CREW is capable of

contributing to a greater understanding by the public.    At issue,

then, are the informative value of the requested information and

its significance to the public.

     Requests based on nothing more than “[b]are allegations of

malfeasance, unsupported by the evidence,” do not have enough

informative value to merit a fee waiver.   Klein, 2006 WL 1442611,

at *4; see also Van Fripp v. Parks, 2000 U.S. Dist. LEXIS 20158,

at *17 (D.D.C. Mar. 15, 2000) (finding that “[i]n the absence of

independent evidence of misappropriation, the plaintiff’s request

[was] too ephemeral to compel the public to pay for his

request”).   Moreover, requests for documents that are not limited

to a particular agency action or matter may be overly broad.       See

generally Judicial Watch, Inc. v. Dep’t of Justice, 122 F. Supp.

2d 13 (D.D.C. 2000) (finding that a request for documents

relating in any way to Senator Orrin Hatch and the Bank of Credit

and Commerce International without any further narrowing of the


                                  15
request lacked necessary specificity).   However, these rejections

of unsupported or overbroad requests impose only a minimal bar on

plaintiffs.   Where statements of the public value of requested

information are contained in the plaintiff’s correspondence with

the agency and are stated with “reasonable specificity,” they

meet at least the threshold test for informative value.    See

Rossotti, 326 F.3d at 1312-13; In Defense of Animals v. Nat’l

Instits. of Health, 543 F. Supp. 2d 83, 109 (D.D.C. 2008).

      Calling CREW’s request too “ephemeral,” the DOJ says that

CREW failed to make a proper showing that the requested

information would contribute to an understanding of the penalty

reduction in the tobacco litigation.   As argument, it notes that

CREW failed to cite to United States v. Philip Morris, USA, Inc.,

a case limiting the DOJ’s ability to seek certain remedies. 396

F.3d 1190 (D.C. Cir. 2005); see Def.’s Opp’n at 14-15.    The DOJ

contends that this case was the reason for the reduction in

penalties, as stated by then-Associate Attorney General Robert

McCallum, and that CREW’s allegations of malfeasance derived from

newspapers and individuals are insufficient.   Def.’s Opp’n at 14-

15.   As such, it alleges, CREW failed this prong of the public-

interest analysis.

      Contrary to the government’s assertions, however, the Court

finds that the public value of the information sought by CREW was

stated with enough specificity to qualify for a fee waiver.


                                16
First, unlike the plaintiffs in Judicial Watch, Inc. v.

Department of Justice, CREW limited its request to documents

surrounding the tobacco litigation, a particular agency action.

See 122 F. Supp. 2d at 14-15.   Moreover, CREW supported its

specific request for information by reference to news reports

casting doubts on the propriety of the reduction in penalties.7

See Letter to James Kovakas from Anne Weismann (June 28, 2005),

at 3, attached as Ex. 1(A) to Def.’s Opp’n.   By justifying its

desire to know about the penalty reduction in that way, CREW did

more than make “bare allegations of malfeasance.”   Klein, 2006 WL

1442611, at *4.   Finally, CREW framed the purpose of its request

as “informing the public about the circumstances surrounding the

. . . penalties.”   Because CREW is seeking explanatory

information of any kind, not merely digging for inculpatory

materials, it is unlikely that its request will “exceed the

purpose for which it is to be used.”   See Van Fripp, 2000 U.S.

Dist. LEXIS 20158, at *17.   There is no bright-line test for a

sufficient showing of informative value.   However, given CREW’s

specific motives and goals, the Court is satisfied that it has

made its request with enough specificity to show informative


7
   This reference to news reports was initially contained in the
section of the letter referring to the “expedited processing”
request rather than that for the “fee waiver.” However, because
the entire document was before all those within the agency who
reviewed it, there seems to be little reason to disregard this
reference. See Letter to James Kovakas from Anne Weismann (June
28, 2005), at 3, attached as Ex. 2(E) to Def.’s Opp’n.

                                17
value to the public.

     The fourth factor, the significance of the information to

the public, is influenced by whether the information is already

available.   See, e.g., Rossotti, 326 F.3d at 1314-15.    Given that

much of the government’s case rests on the privileged nature of

the requested documents, it is clear to the Court that this

information is not publicly available.    Moreover, given the scale

and public nature of the tobacco litigation, the Court is

persuaded that the significance of any additional information is

likely to be high, regardless of whether the documents uncover

any wrongdoing.   See id. at 1314 (noting that “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”).

     Because CREW has made a valid showing of both informative

value and public significance, the Court is persuaded that it has

met the public-interest requirements necessary for a fee waiver.

The DOJ does not contest that the information requested is not in

the commercial interest of CREW.     As such, CREW met both elements

of the FOIA fee-waiver provision, and is entitled to a waiver of

its fees in the instant case.

     C. The DOJ’s argument that it properly imposed an up-
     front fee requirement under 28 C.F.R. § 16.11(i) is
     invalid given CREW’s fee-waiver eligibility.

     The DOJ also argues that it properly required CREW to make


                                18
an advance payment pursuant to an internal regulation that allows

it to do so where a request is likely to exceed $250.    See 28

C.F.R. § 16.11(i); Def.’s Opp’n at 15-16.   However, that

requirement is one to which a fee waiver logically applies.      See

Dep’t of Justice, 365 F.3d at 1127 (concluding that because the

requester was not entitled to a fee waiver, the agency properly

refused to process further document requests without payment of

the $250 fee); Pollack v. Dep’t of Justice, 49 F.3d 115, 119-20

(4th Cir. 1995) (describing the $250 fee, noting that the agency

must provide for a procedure by which fees can be waived, and

explaining that requesting a fee waiver would have been one way

for plaintiff to avoid paying the $250 fee).   Therefore, the up-

front fee must be waived upon meeting other requirements for a

fee waiver.


IV.   Conclusion

      The foregoing discussion demonstrates that there is no issue

of material fact with regard to CREW’s entitlement to a fee

waiver.   Accordingly, the Court GRANTS Plaintiff’s Motion for

Summary Judgment on entitlement to a fee waiver under FOIA.   An

appropriate Order accompanies this Memorandum Opinion.


Signed:    Emmet G. Sullivan
           United States District Judge
           March 16, 2009




                                19
