Environmental Protection v. Usfs ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ENVIRONMENTAL PROTECTION 
INFORMATION CENTER; FOREST
No. 04-15512
ISSUES GROUP,
Plaintiffs-Appellants,
 D.C. No.
CV-03-00449-SC
v.
OPINION
UNITED STATES FOREST SERVICE,
Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of California
Samuel Conti, District Judge, Presiding
Argued and Submitted
November 17, 2005—San Francisco, California
Filed December 19, 2005
Before: Jerome Farris, A. Wallace Tashima, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Farris
16591
16592 ENVIRONMENTAL PROTECTION INFO. v. USFS
COUNSEL
Brian Gaffney, Oakland, California, for the plaintiffs-
appellants.
ENVIRONMENTAL PROTECTION INFO. v. USFS 16593
Chinhayi J. Coleman, Assistant United States Attorney, San
Francisco, California, for the defendant-appellee.
Bonne W. Beavers, Spokane, Washington, for amici curiae
The Selkirk Conservation Alliance and The Lands Council.
OPINION
FARRIS, Circuit Judge:
I. Introduction
Environmental Protection Information Center and Forest
Issues Group appeal the order of the district court granting
summary judgment to the United States Forest Service on
their claim that the Forest Service wrongfully denied them
waivers of fees under the Freedom of Information Act, 5
U.S.C. § 552, for procurement of Geospatial Information Sys-
tems data records. The district court held that 7 U.S.C.
§ 1387, which allows the Secretary of Agriculture to set fees
for GIS data, satisfies an exception to FOIA as “a statute spe-
cifically providing for setting the level of fees for particular
types of records,” 5 U.S.C. § 552(a)(4)(A)(vi). We
REVERSE, concluding that the Office of Management and
Budget, the agency responsible for promulgating FOIA guide-
lines, has clarified that only statutes setting mandatory fees,
rather than statutes setting discretionary ones, meet the FOIA
exception.
II. Procedural and Factual Background
Between July 1, 2002 and December 4, 2002, Appellants
sent four letters to the Forest Service requesting information
about timber sales. In each letter, Appellants asserted they
were eligible for a waiver of normal FOIA fees under
§ 552(a)(4)(A)(iii), which states that fees shall be waived or
16594 ENVIRONMENTAL PROTECTION INFO. v. USFS
reduced if disclosure is in the public interest and is not pri-
marily in the commercial interest of the requester. They sup-
ported this assertion with an analysis of their compliance with
the six-factor test for eligibility set forth in 7 C.F.R. Subtitle
A, Part 1, Subpart A, App. A, § 6(a)(1), as well as with addi-
tional language used by the Forest Service in previous
responses to FOIA requests. Each letter included a request for
Forest Service GIS files. GIS is “a computer system capable
of assembling, storing, manipulating, and displaying geo-
graphically referenced information.” County of Suffolk v. First
Am. Real Estate Solutions, 261 F.3d 179, 186 n.4 (2d Cir.
2001). According to Amici Curiae The Selkirk Conservation
Alliance and The Lands Council, “[t]he compilation and stor-
age of GIS data is complex and costly, yet its use is vital in
the field of natural resource management and its oversight.”
The Forest Service provided most of the requested informa-
tion without charge, finding that the organizations met the
requirements of FOIA, but stated that GIS data would not be
released until the requesters paid a fee. The fees varied from
$56 to $350. Amicus Lands Council states that its fees totaled
$4,000. The letter from the Forest Service to FIG stated:
FOIA requests for geospatial data no longer fall
under the normal FOIA fee schedule. Instead, this
category of FOIA requests is charged fees according
to FSM 7149.05 (Geometronics) . . . . Consequently,
fee waiver requests are not relevant for digital data.
The Forest Service responded to each of EPIC’s requests:
GIS data, while considered Forest Service “records”
under FOIA, falls into the same category as maps,
and, as such, the Forest Service is entitled to reim-
bursement for the costs incurred to produce them. As
stated in Forest Service Manual 7140-1, “The
authority to sell maps and reimburse the appropria-
tion(s) charged for the cost of furnishing maps is set
ENVIRONMENTAL PROTECTION INFO. v. USFS 16595
forth in 7 U.S.C. 1387. The statute authorizes the
Secretary [of Agriculture] to sell maps at not less
than the estimated cost.”
(Alteration in original.)
Appellants appealed the Forest Service’s fee waiver denial,
but the Forest Service did not respond until after this suit was
filed. On February 3, 2003, Appellants filed their complaint
in district court. The complaint listed three causes of action,
but only the first, for improper denial of a fee waiver, is at
issue in this appeal. The district court granted summary judg-
ment to the Forest Service.
III. Standard of Review
Although this case is on appeal from a grant of sum-
mary judgment, the standard of review is not simply
de novo. In a FOIA case, we will overturn the dis-
trict court’s factual findings underlying its decision
only for clear error. After giving deference to such
factual findings, we then review de novo whether a
particular FOIA exemption applies.
Carter v. U.S. Dep’t of Commerce, 307 F.3d 1084, 1088 (9th
Cir. 2002) (citations omitted); see also 5 U.S.C.
§ 552(a)(4)(A)(vii). “On judicial review, we cannot consider
new reasons offered by the agency not raised in the denial let-
ter.” Friends of the Coast Fork v. U.S. Dep’t of the Interior,
110 F.3d 53, 55 (9th Cir. 1997); see also 5 U.S.C.
§ 552(a)(4)(A)(vii).
FOIA “ ‘is to be liberally construed in favor of waivers for
noncommercial requesters.’ ” McClellan Ecological Seepage
Situation v. Carlucci, 835 F.2d 1282, 1284 (9th Cir. 1987)
(quoting 132 Cong. Rec. S14298 (Sept. 30, 1986) (Sen.
Leahy)).
16596 ENVIRONMENTAL PROTECTION INFO. v. USFS
FOIA calls for the Office of Management and Budget to
promulgate guidelines for agencies to follow. 5 U.S.C.
§ 552(a)(4)(A)(i).1 Courts should grant deference to the guide-
lines promulgated by the Office of Management and Budget
pursuant to FOIA’s statutory scheme. See Maydak v. United
States, 363 F.3d 512, 518 (D.C. Cir. 2004) (granting defer-
ence to guidelines of Office of Management and Budget pro-
mulgated pursuant to Privacy Act); Albright v. United States,
631 F.2d 915, 919 n.5 (D.C. Cir. 1980) (same, and noting that
Office of Management and Budget “guidelines are owed the
deference usually accorded interpretation of a statute by the
agency charged with its administration, particularly when, as
here, the regulation involves a contemporaneous construction
of a statute by the (persons) charged with the responsibility of
setting its machinery in motion” (alteration in original) (cita-
tion omitted)).
An agency’s interpretation of statutes within its authority is
entitled to deference. See Nat’l Cable & Telecomm. Ass’n v.
Brand X Internet Servs., 125 S. Ct. 2688, 2699 (2005) (“If a
statute is ambiguous, and if the implementing agency’s con-
struction is reasonable, Chevron requires a federal court to
accept the agency’s construction of the statute, even if the
agency’s reading differs from what the court believes is the
best statutory interpretation.” (citing Chevron U.S.A., Inc. v.
Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44, & n.11
(1984))). Thus, we give deference to the Office of Manage-
ment and Budget’s interpretation of FOIA and the Forest Ser-
vice’s interpretation of Section 1387.
1
Section (a)(4)(A)(i) provides: “In order to carry out the provisions of
this section, each agency shall promulgate regulations, pursuant to notice
and receipt of public comment, specifying the schedule of fees applicable
to the processing of requests under this section and establishing proce-
dures and guidelines for determining when such fees should be waived or
reduced. Such schedule shall conform to the guidelines which shall be pro-
mulgated, pursuant to notice and receipt of public comment, by the Direc-
tor of the Office of Management and Budget and which shall provide for
a uniform schedule of fees for all agencies.”
ENVIRONMENTAL PROTECTION INFO. v. USFS 16597
IV. Discussion
We turn first to the statutes to determine whether it is
unambiguous that Section 1387 provides an exception to the
fee waiver provision of FOIA, obviating the need to look to
agency guidance. It is not.
[1] The FOIA exception, 5 U.S.C. § 552(a)(4)(A)(vi),
states: “Nothing in this subparagraph shall supersede fees
chargeable under a statute specifically providing for setting
the level of fees for particular types of records.” Section 1387
states:
The Secretary may furnish reproductions of informa-
tion such as geo-referenced data from all sources . . .
at the estimated cost of furnishing such reproduc-
tions, and to persons other than farmers at such
prices as the Secretary may determine (but not less
than the estimated costs of data processing, updating,
revising, reformatting, repackaging and furnishing
the reproductions and information) . . . . This section
shall not affect the power of the Secretary to make
other disposition of such or similar materials under
any other provisions of existing law.
The Forest Service argues that the FOIA exception applies
to any statute that allows an agency to charge fees for its
material. It notes that it has interpreted Section 1387 to give
it discretion whether to charge fees. Appellants, on the other
hand, argue that the plain meaning of the FOIA exception,
that fees be “chargeable under a statute specifically providing
for setting the level of fees,” is that the statute must require,
not merely permit, fees to be set.
[2] We conclude that the FOIA exception set forth in
§ 552(a)(4)(A)(vi) is ambiguous. The phrase “specifically
providing for setting” would seem to indicate that the agency
must be required to do something; however, it is not clear
16598 ENVIRONMENTAL PROTECTION INFO. v. USFS
whether that something is to decide whether or not to set fees,
or to set fees, with some discretion as to the amount.
[3] Having determined that the FOIA exception is ambigu-
ous, we look to the Office of Management and Budget’s
guidelines. The Office of Management and Budget has inter-
preted § 552(a)(4)(A)(vi) to apply only when a statute man-
dates that fees be imposed. “Fee Schedule and Guidelines,”
52 Fed. Reg. 10017, states:
6. Definitions—
...
b. A “statute specifically providing for setting the
level of fees for particular types of records” (5
U.S.C. 552(a)(4)(A)(vi)) means any statute that spe-
cifically requires a government agency . . . to set the
level of fees for particular types of records . . . . Stat-
utes, such as the User Fee Statute, which only pro-
vide a general discussion of fees without explicitly
requiring that an agency set and collect fees for par-
ticular documents do not supersede the Freedom of
Information Act under section (a)(4)(A)(vi) of that
statute.
“Section-by-Section Analysis,” 52 Fed. Reg. 10012, states:
Our guidance makes it clear that a qualifying statute
must require, not merely permit, an agency to estab-
lish fees for particular documents.
[4] While Section 1387 allows the Secretary to charge fees
for furnishing reproductions of GIS data, it is not mandatory,
providing: “This section shall not affect the power of the Sec-
retary to make other disposition of such or similar materials
under any other provisions of existing law.” As the Forest
Service argues, this language gives the Secretary the discre-
ENVIRONMENTAL PROTECTION INFO. v. USFS 16599
tion to make other disposition of the materials, such as with-
out charge when the conditions of FOIA are met.
[5] The Office of Management and Budget’s interpretation
of FOIA is entitled to greater deference than the Forest Ser-
vice’s, since the Office has authority to issue guidelines pur-
suant to FOIA. See Albright, 631 F.2d at 919, 919 n.5 (relying
on Office of Management and Budget’s interpretation of Pri-
vacy Act in holding that Department of Health, Education,
and Welfare decision to videotape employee meeting violated
the Privacy Act); Maydak, 363 F.3d at 518 (deferring to
Office of Management and Budget guidelines in holding that
system of storing photographs by Bureau of Prisons may con-
stitute “system of records” pursuant to Privacy Act).
We recognize that this result may be at odds with Oglesby
v. U.S. Dep’t of Army, 79 F.3d 1172 (D.C. Cir. 1996), which
held that a similar statute that provided for discretionary fees
came within subsection (vi). See id. at 1177. However, it
appears that the Office of Management and Budget’s guide-
lines were not before, and were not considered by, the
Oglesby court.
The judgment of the district court is REVERSED and the
case is REMANDED to the district court with directions to
further remand the matter to the Forest Service for action in
conformance with this opinion.