CREW sues Small Business Administration for withholding records

On September 7, 2017, CREW filed a lawsuit against the U.S. Small Business Administration (SBA) on two counts: the improper denial of a fee waiver for filing a Freedom of Information Act (FOIA) request, and for the wrongful withholding of the non-exempts records requests by CREW’s FOIA.

On March 24, 2017, CREW filed a FOIA request for documents relating to meetings SBA Chief of Staff Mary Anne Bradfield had from January 20, 2017 forward, as well as those pertaining to the mission of her office and communications between Ms. Bradfield and White House Deputy Chief of Staff Rick Dearborn and his top aide from January 20 forward. On or around March 2017, CREW sent similar FOIA requests to 14 other federal agencies seeking the same categories of records sought in its request to the SBA, namely those concerning the Senior White House Advisor appointed to the respective agencies.

The FOIA requests aimed to provide a better understanding of the relevant government procedures by CREW and the general public, particularly in terms of the extent to which agency decisions are being dictated by the White House through a process divorced or separate from agency heads. Further, at a time when the president is proposing massive cuts to federal agencies and sharply decreasing the federal workforce, there is great public interest in the extent to which the president has bloated federal agencies with political aides dedicated to serving the separate political interests of the White House.

The SBA not only did not provide CREW with the requested records, but also denied its fee waiver. Under the FOIA, agencies should produce non-exempt documents at no charge to the requester or at a reduced charge if “disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations of activities of the government and is not primarily in the commercial interest of the requester.” The subject of CREW’s request concerns the operations of the federal government, and disclosure will likely contribute to a better understanding of relevant procedures. Furthermore, CREW qualifies as a member of the news media as a non-profit corporation that publishes reports, blog posts, and articles to educate the public about issues surrounding government ethics and the influence of money in politics.

As such, when requesting documents that contribute to research, CREW routinely requests and receives FOIA fee waivers from federal agencies. Of the 14 other federal agencies that CREW filed FOIA requests with in or around March 2017, each that responded to CREW’s fee waiver request either specifically granted the request or otherwise determined that it would provide responsive documents without charge. On April 26, 2017, SBA Acting General Counsel notified CREW that its fee waiver had been denied. On May 17, CREW appealed the fee waiver, and on August 3, CREW’s appeal was denied.

The SBA has not made a determination on CREW’s March 24 FOIA request and has informed CREW that it will not do so absent payment of a fee. Because SBA has failed to make a determination on CREW’s FOIA request and has denied CREW’s appeal of the agency’s initial determination that CREW is not entitled to a fee waiver, CREW has exhausted all other administrative remedies.