Investigative Journalist’s FOIA Fee Suit Can Proceed

Bloomberg Law’s combination of innovative analytics, research tools and practical guidance provides you with everything you need to be a successful litigator.

By Patrick L. Gregory

The Federal Bureau of Investigation must explain fees it charged a reporter for a 2011 Freedom of Information Act Request, after a ruling by the U.S. Court of Appeals for the District of Columbia Circuit Feb. 14 ( Nat’l Sec. Counselors v. DOJ , 2017 BL 43612, D.C. Cir., No. 15-5117, 2/14/17 ).

The reporter, Jeff Stein, last month filed a complaint concerning a separate FOIA request he made to determine how Mike Flynn—who recently resigned as national security adviser—and other Donald Trump administration officials received security clearances.

The outcome here could make federal agencies “more responsive and more conscientious” in how they assess FOIA fees, Stein’s attorney Kel McClanahan of National Security Counselors, Rockville, Md., told Bloomberg BNA by telephone Feb. 14.

“Going forward the ideal outcome from this case would be that agencies pay closer attention to how much time they’re actually spending working on requests and how much time of that work is actually compensable under FOIA,” McClanahan said.

That’s preferable to agencies simply “doing estimates or lumping things together that don’t belong together,” he said.

The Department of Justice didn’t immediately return a request for comment.

Man v. Machine

The FBI assessed a $665 fee to Stein for his request, which asked for “all pages” on the agency’s Records Management Division website, the court said in a decision by Judge Sri Srinivasan.

The agency uses a computer program to provide such records, and needs to explain the extent to which FBI employees must interact with the software, the court said.

Stein argued that the agency’s description of the program could mean that agents sit “idly by while the program processes documents,” in which case the fees might not be justified, the court said.

Judges Janice Rogers Brown and Robert Leon Wilkins joined the decision.

The Department of Justice represented itself.

To contact the reporter on this story: Patrick L. Gregory in Washington at

To contact the editor responsible for this story: Jessie Kokrda Kamens at

For More Information

Full text at

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

Request Litigation on Bloomberg Law