VENKATARAM v. OFFICE OF INFORMATION POLICY et al
Filing
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MEMORANDUM OPINION. Signed by Chief Judge Jerome B. Simandle on 9/17/2012. (TH, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
NATARAJAN VENKATARAM,
Plaintiff,
HON. JEROME B. SIMANDLE
Civil No. 09-6520 (JBS/AMD)
v.
OFFICE OF INFORMATION POLICY,
et al.,
MEMORANDUM OPINION
Defendants.
SIMANDLE, Chief Judge:
This matter is before the Court on Plaintiff’s motion for
waiver of fees imposed by the Office of Information Policy
(“OIP”) associated with Plaintiff’s request for documents under
the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. [Docket
Item 39.] For the reasons explained below, the Court denies the
motion.
1. This action arises out of Plaintiff Natarajan
Venkataram’s efforts to obtain records from the Department of
Justice (“DOJ”) concerning the investigation of D.V.S. Raju, who
was Plaintiff’s co-defendant in a criminal case for conspiracy,
embezzlement, theft and other charges related to the conspiracy.
[Compl. at ¶¶ 7-15] Mr. Raju later was dismissed from the
indictment. [Id. at ¶ 15.] After considerable delays in
responding properly to Plaintiff’s request for information,
described in more detail in Venkataram v. Office of Information
Policy, 823 F. Supp. 2d 261 (D.N.J. 2011) and Venkatarm v. Office
of Information Policy, No. 09-6520, 2012 WL 3283485 (D.N.J. Aug.
9, 2012), this Court ordered that Defendant’s revised response to
Plaintiff’s FOIA request, including an updated Vaughn index, will
be due to Plaintiff 45 days after pre-payment of the estimated
search fee. [Docket Item 38.] According to Plaintiff, the fee in
this case is $560. [Pl. Mot. for Waiver at 1.]
2. On August 15, 2012, Plaintiff, unrepresented by counsel,
filed this motion to waive the FOIA fee imposed by the OIP. [Id.]
Plaintiff argues that he qualifies for a fee waiver under 5
U.S.C. § 552(a)(4)(A)(ii)-(iii) and 28 C.F.R. § 16.11(k), because
disclosure of the information sought is in the public interest,
as it is likely to contribute significantly to public
understanding of the operation or activities of government, and
disclosure is not in the commercial interest of the requester.
[Id. at 1, 3-4.] Specifically, Plaintiff asserts that disclosure
of the documents will reveal “why the Department of Justice did
not seek to recover the millions of dollars alleged to be
wrongfully in Raju’s possession” and will “inform[] the public
about the methods and procedures utilized by the U.S. Attorney’s
Office when formulating the criteria applicable to a request for
nolle prosequi.” [Id. at 4.] Plaintiff argues that disclosure
will be of particular interest to those subject to investigation
by the U.S. Attorney’s Office and to “an expansive legal
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community of practitioners and legal scholars . . . .” [Id.]
In
his reply brief, Plaintiff also asserts that he possesses the
ability to disseminate the information sought, because
“representatives from The New York Daily News have sought
detailed interviews with Venkataram” on “numerous occasions since
his conviction” and that Plaintiff “need only telephone The News
and release the information for publication.” [Pl. R. Br. at 5.]
3. Defendant opposes the motion. [Def. Opp’n.] Defendant
asserts that Plaintiff’s request should be denied because it is
primarily motivated by Plaintiff’s own litigation interest and
“not any interest on his part to contribute to the public
understanding . . . .” [Id. at 5.] Defendant argues that
Plaintiff seeks the documents to help his pending appeal in the
U.S. Court of Appeals for the Second Circuit, see City of New
York v. Venkataram, No. 06-6578, 2009 WL 1938984 (S.D.N.Y. July
7, 2009), appeal docketed, No. 12-0395 (2d Cir. Jan. 30, 2012),
as well as his motion to vacate, set aside or correct his
sentence, pursuant to 28 U.S.C. § 2255, see Venkataram v. U.S.,
No. 11-6503 (S.D.N.Y. filed Sept. 12, 2011). [Id. at 6.]
Additionally, Defendant asserts that Plaintiff has not
demonstrated an ability to disseminate any information he may
obtain to the public.1 [Id. at 7.]
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Defendant chooses not argue that Plaintiff’s request
should be denied due to Plaintiff’s failure to exhaust
administrative remedies, “[i]n the interest of avoiding any
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4. Motions to waive FOIA fees will be granted 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). To determine whether the fee waiver
requirements are met, courts must consider: (1) whether the
requested records concern the operations or activities of the
government, (2) whether disclosure is “likely to contribute” to
an understanding of government operations or activities, (3)
whether disclosure of the information will contribute to “public
understanding,” and (4) whether the disclosure is likely to
contribute “significantly” to public understanding of government
operations or activities. 28 C.F.R. § 16.11(k)(2)(i)-(iv). Even
if some public interest is served by disclosure, a request for
waiver is properly denied if disclosing such information does not
significantly contribute to public understanding of government
operations. See Schulz v. Hughes, 250 F. Supp. 2d. 470, 474 (E.D.
Pa. 2003) (“Although there may be some public interest served by
disclosing such information, disclosure of the available
documents would not significantly contribute to public
understanding of government operations, as required by FOIA.”). A
further delays in the processing of plaintiff’s FOIA request . .
. .” [Id. at 1.] Accordingly, the Court will not address the
issue of exhaustion.
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fee waiver also may be denied if the requester lacks the ability
to disseminate the information to the public. See Larson v.
Central Intelligence Agency, 843 F.2d 1481, 1483 (D.C. Cir. 1988)
(holding that a failure to identify a newspaper to which the
requester would release the information was a sufficient basis
for denying the waiver request).
5. Federal courts, including district courts in this
Circuit, consistently have denied requests for fee waivers by
incarcerated individuals when the records sought related to their
criminal cases and would serve primarily their own private
interests. See e.g., Schulz, 250 F. Supp. 2d. at 474 (denying the
request for waiver when “the information requested would
primarily serve [requester’s] individual interests”); Bansal v.
Drug Enforcement Admin., No. 06-3946, 2007 WL 551515 (E.D. Pa.
Feb. 16, 2007) (denying the request for waiver because the
requester provided no basis for finding that disclosure would
contribute significantly to public understanding, despite
alleging the documents would show proof of corrupt government
practices); McClain v. U.S. Dep’t of Justice, 13 F.3d 220, 221
(7th Cir. 1993) (denying a request for waiver by a convicted
individual seeking documents related to his prosecution on the
grounds that disclosure would not significantly contribute to
public understanding, despite assertions that nonprofit
organizations and reporters were interested in the records);
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McQueen v. United States, 264 F. Supp 2d 502, 526 (S.D. Tex.
2003), aff’d 100 Fed. Appx. 964, 965 (5th Cir. 2004) (denying a
request for waiver on the grounds that disclosure would not
significantly contribute to public understanding, despite
assertions of misconduct in the investigation of his criminal
case); and Rizzo v. Tyler, 438 F. Supp. 895, 900 (S.D.N.Y. 1977)
(denying a request for waiver on the grounds that disclosure
would not serve a significant public interest, despite assertions
by the requester that disclosure would contribute to the
understanding of the DOJ’s efforts to combat organized crime).
6. Here, Plaintiff does not seek records pertaining solely
to his own criminal investigation and prosecution, but rather
records related to the investigation of his alleged coconspirator, Mr. Raju. However, as Defendant points out, in
Plaintiff’s submissions to this Court, Plaintiff has
characterized Defendant’s delay in turning over the requested
records as “damaging to [Plaintiff’s] efforts in other, related,
federal civil litigation.” [Docket Item 33 at 4.] Although the
records sought in this case clearly relate to government
activity, and even assuming that disclosure of such records is
likely to contribute to public understanding of government
activity, the Court is convinced that disclosure primarily would
benefit Plaintiff and not contribute significantly to public
understanding of the U.S. Attorney’s Office and the process by
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which it decides not to prosecute subjects of criminal
investigations. Thus, Plaintiff does not satisfy the significant
contribution element necessary to qualify for a fee waiver, and
his motion will be denied.
7. Because the Court finds that disclosure will not
contribute significantly to public understanding of government
activities, and that he seeks the materials primarily for his own
use, the Court need not examine whether Plaintiff possesses the
ability to disseminate the information requested.
8. Therefore, for the reasons stated above, Plaintiff’s
motion for waiver of his FOIA fee will be denied. The
accompanying Order will be entered.
9. The parties shall notify the Court when Plaintiff has
made payment. If payment is not made within thirty (30) days,
then the Court will suspend further activity in this case (since
the Government’s deadlines to answer the Order to Show Cause and
to file a revised response to the FOIA request, as set forth in
this Court’s Order entered August 9, 2012, depend upon such
payment of fees for these documents) by entering an Order for
Administrative Termination without prejudice to reopen for
further proceedings consistent with law.
September 17, 2012
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
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