She Fought the Law and She Won

By on August 11, 2016 in Court Cases with 12 Comments

Kathryn Sack asked the DoD for records involving its use of polygraph exams, and explained that she was working on her PhD dissertation involving that subject. She requested that she be treated as an educational-institution requestor, which meant she would only have to pay duplication fees and not be charged fees under the Freedom of Information Act (FOIA) for the agency’s search and review time. The agency identified some releasable records, but refused to put her under the education category since Ms. Sack was a student, not an educator. It required her to pay $900 in search fees. Ms. Sack sued. The district court sided with the agency, ruling that as a student she was not entitled to reduced fees.

Now, the appeals court has reached a different result in Sack v. U.S. Department of Defense (CADC No. 14-5039, 5/20/16).

In its decision upending government guidance on this issue, the court first notes that fees agencies may charge in FOIA cases “can be significant…and can deter or prevent citizens from making FOIA requests.” (p. 2).

The court was surprised to find no previous appeals court decisions addressing the question of students, noting that under government-wide guidance a distinction has been made excluding students from enjoying the educational institutions’ reduced fee benefit “because they are supposedly not part of an educational institution. We disagree with the Government’s slicing of the term ‘educational institution.’ If teachers can qualify for reduced fees, so can students.” (p. 2)

The guidance referred to by the appeals court comes from Office of Management and Budget (OMB) Fee Schedule and Guidelines that say this with regard to students: “A student who makes a request in furtherance of the completion of a course of instruction is carrying out an individual research goal and the request would not qualify . . . .” (p. 7)

The court reacts negatively to the OMB guidance: “That lone statement in the OMB Guidelines, if consistent with the statute and otherwise binding in this case, would obviously mean that Sack could not qualify as an educational-institution requester. Not surprisingly, in denying Sack’s request to be categorized as an educational-institution requester, the Government relied heavily on that OMB Guideline.” (p. 7)

The appeals court now holds that” the Government’s reading is inconsistent with the statute. Indeed, we think the Government’s reading makes little sense at all.” (p. 9)

While acknowledging that OMB “may (for good reason) want to help fill and replenish the Government’s coffers…to extract as much money as possible from those who make FOIA requests” … and may “also want to discourage further FOIA requests to alleviate the burden on already grossly overburdened FOIA offices”…nevertheless ”this statute, as we read it, does not empower the Government to pursue fiscal balance or provide relief for the FOIA bureaucracy on the backs of students.” (pp. 11-12)

In short, the appeals court reverses the district court’s ruling on the education fee exemption. Ms. Sack will either be afforded the reduced fee or the government will have decide if it wants to bother the Supreme Court with this issue.

Ms. Sack’s professors should consider awarding her extra credit. She took on a goliath and in the process won an important ruling for students everywhere. Meanwhile presumably OMB will be revisiting its guidance on student requests.

Sack v. DoD 14-5039

© 2016 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.

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About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.

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