Aidan Monaghan v. Federal Bureau of Investigation; Department of Justice

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The Honorable William E. Smith, District Judge for the U.S. District**
Court for the District of Rhode Island, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AIDAN MONAGHAN,
Plaintiff-Appellant,
v.
FEDERAL BUREAU OF
INVESTIGATION; DEPARTMENT OF
JUSTICE,
Defendants-Appellees.
No. 11-16214
D.C. No. 2:09-cv-02199-JCM-
GWF
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted November 9, 2012
San Francisco, California
Before: BERZON and KLEINFELD, Circuit Judges, and SMITH, District Judge.**
FILED
JAN 28 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Plaintiff-Appellant Aidan Monaghan appeals the district court’s denial of his
motion for summary judgment for a Freedom of Information Act (“FOIA”) fee waiver
and the district court’s granting of Defendant-Appellant Federal Bureau of
Investigation’s (“FBI”) motion to dismiss. We review both issues de novo, with
review of the fee waiver decision limited to the administrative record before the
agency. See 5 U.S.C. § 552(a)(4)(A)(vii); Bankston v. White, 345 F.3d 768, 770 (9th
Cir. 2003); Friends of the Coast Fork v. United States Dep’t of the Interior, 110 F.3d
53, 54 (9th Cir. 1997). For the reasons that follow, the district court order of dismissal
is affirmed.
A. The Record
As an initial matter, Monaghan incorrectly argues that the FBI’s untimely
January 13, 2010 response letter is a “post hoc response” that should be stricken from
the administrative record. An administrative record includes “the initial FOIA
request, the agency’s response, and any subsequent materials related to the
administrative appeal.” Forest Guardians v. United States Dep’t of the Interior, 416
F.3d 1173, 1177 (10th Cir. 2005) (emphasis added). As many cases demonstrate, the
fact that an agency’s response was untimely does not preclude inclusion of that
response in the administrative record for consideration by the courts. See Pollack v.
United States Dep’t of Justice, 49 F.3d 115, 117, 120 (4th Cir. 1995); Jeanes v. United

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States Dep’t of Justice, 357 F. Supp. 2d 119, 121, 123 (D.D.C. 2004); Maydak v.
United States Dep’t of Justice, 254 F. Supp. 2d 23, 50 (D.D.C. 2003). The reason for
this is simple: a court’s function is to review the decision made by the agency and not
to relitigate the facts or to create a new record on appeal. See Camp v. Pitts, 411 U.S.
138, 142-43 (1973). Here, the FBI’s untimely response was not an attempt to
manipulate the record on judicial review. To the contrary, with the exception of
timeliness, the response appears to be the FBI’s attempt to comply with FOIA: it
explained the FBI’s determination that the waiver was unwarranted, provided detailed
reasons for that determination, informed Monaghan of his right to appeal, notified
Monaghan of the unusual circumstances affecting the amount of time it would take
to disclose the documents, informed Monaghan of the accrued costs of the search,
requested advanced payment of these high costs, and was written by the section chief
of the Record/Information Dissemination Section, not by an attorney from the legal
team defending the lawsuit. See 5 U.S.C. §§ 552(a)(4)(A)(iii), (a)(6)(A)(i),
(a)(6)(B)(i)-(ii); 28 C.F.R. § 16.11(c)(2). Thus, it was not an improper post hoc
response, and the district court properly considered it.

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B. Fee Waiver Under 5 U.S.C. § 552(a)(4)(A)(iii) & 28 C.F.R.
§ 16.11(k)
Both the FBI and the district court correctly concluded that the administrative
record does not support a fee waiver for Monaghan’s FOIA request. While fee waiver
requests are to be liberally construed, the burden is on the requester to satisfy FOIA’s
statutory requirements and the Department of Justice’s regulatory standards.
Monaghan fails to meet his burden because he has provided only conclusory
allegations. See Forest Guardians, 416 F.3d at 1177- 78 (quoting Judicial Watch Inc.
v. Rossotti, 326 F.3d 1309, 1312 (D.C. Cir. 2003)). For example, Monaghan states
that because “the FBI investigation of the terrorist attacks of September 11, 2001 is
the largest ever undertaken by the bureau,” the “[r]elease of the requested records will
contribute greatly to the public understanding of government operation,” but he does
not explain why. It is unclear how documents that address “broad public skepticism”
and “public doubts” regarding the crashes of American Airlines flight 77 and United
Airlines flight 93 are “meaningfully informative” on governmental operations or
activities, and it is not the FBI’s responsibility to infer a connection. See 28 C.F.R.
§ 16.11(k)(2)(ii); Jarvik v. Cent. Intelligence Agency, 495 F. Supp. 2d 67, 72-73
(D.D.C. 2007).

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Monaghan also fails to show how disclosure will contribute to public
understanding because he does not establish either an ability or intention to effectively
convey information to a broad public audience. See 28 C.F.R. § 16.11(k)(2)(iii). The
FBI explains in its response that Monaghan’s sub-blog is not easily accessible through
general searches conducted on common search engines. Monaghan does not dispute
this, nor does he provide any information regarding the website traffic or number of
hits that either his sub-blog or the 911blogger.com website attract. Given these
uncertainties, Monaghan fails to establish that any information put on his sub-blog
will reach the public and contribute to a “public understanding” of government
activities. The references to the Beacon-News, “Loose Change 9/11: An American
Coup,” and “The New Pearl Harbor Revisited: 9/11, the Cover-Up, and the Exposé”
are likewise inadequate. The record is completely silent (absent Monaghan’s bare
assertions) as to what information these publications reported and whether Monaghan
received any credit for supplying the information. The only way to verify these claims
would be to read the news reports, listen to the documentary programs, and buy and
read the book. It is not the FBI’s responsibility to go on a scavenger hunt.
Finally, the FBI’s response letter observes that portions of the responsive
documents have previously been released to the public. Monaghan does not challenge
this position, and the documents’ prior availability makes them unlikely to further

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contribute to public understanding of government operations. See 28 C.F.R. §
16.11(k)(2)(ii).
C. Fee Preclusion
Monaghan’s final attempt to avoid paying fees - an argument predicated on
FOIA’s fee preclusion subsection - is likewise unavailing. When he filed his lawsuit,
Monaghan knew the FBI had failed to comply with FOIA’s time requirements.
Indeed, it was a prerequisite for the lawsuit. Yet, his Amended Complaint, which
contains a section entitled “waiver of search and reproduction fees,” is entirely silent
on fee preclusion. Moreover, when Monaghan filed his summary judgment motion
on April 22, 2010, it had been three months since the FBI’s response letter requesting
that Monaghan pay $864 in accrued search fees. Because the parties had agreed to
resolve all fee issues during the first part of the bifurcated trial, and the FBI’s response
put Monaghan on notice of his obligation to pay, any fee preclusion arguments should
have been raised at summary judgment; no such arguments were raised. When
Monaghan did finally decide to raise the issue - in response to the FBI’s motion to
dismiss - he was too late; the time for raising the issue had already passed, and thus
Monaghan waived the fee preclusion argument. See Dettmann v. United States Dep’t
of Justice, 802 F.2d 1472, 1476 (D.C. Cir. 1986).

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D. Failure to Pay FOIA Fees
Monaghan’s argument that the district court erred in dismissing the case
because he constructively exhausted his administrative remedies misunderstands
FOIA’s exhaustion requirement. It is undisputed that when the FBI failed to respond
to Monaghan’s initial August request and his September 29 appeal letter, Monaghan
constructively exhausted his administrative remedies regarding decisions on his FOIA
request and fee waiver, and he properly filed suit in the district court. “The
constructive exhaustion provision, however, did not relieve [defendant] of his
statutory obligation to pay any and all fees which the agency was authorized to
collect.” Pollack, 49 F.3d at 119; see also Dettmann, 802 F.2d at 1477 (“[A] plaintiff
may have exhausted administrative remedies with respect to one aspect of a FOIA
request . . . and yet not have exhausted her remedies with respect to another aspect of
a FOIA request.”). Once the district court denied Monaghan’s motion for summary
judgment, Monaghan became obligated to pay the fees related to his request,
regardless of the FBI’s untimeliness. See Pollack, 49 F.3d at 119-20; Kurdyukov v.
Drug Enforcement Admin., 578 F. Supp. 2d 61, 65 (D.D.C. 2008). Because he failed
to do so, the FBI has not “(1) ‘improperly’ (2) ‘withheld’ (3) ‘agency records’” and
the district court properly dismissed Monaghan’s claim. See United States Dep’t of
Justice v. Tax Analysts, 492 U.S. 136, 142 (1989).

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AFFIRMED.

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-1-
Monaghan v. Federal Bureau of Investigation, 11-16214
BERZON, Circuit Judge, dissenting:
I respectfully dissent.
First, the preclusion issue under 5 U.S.C. § 552(a)(4)(A)(viii) was not
waived. The statute’s fee preclusion provision is more limited than the broader
waiver Monaghan originally sought when he moved for summary judgment, as it
does not necessarily cover duplication costs. Compare § 552(a)(4)(A)(viii) with
§ 552(a)(4)(A)(iii). The preclusion argument was raised in response to the motion
to dismiss, which was an appropriate time to raise it, as it was a defense to the
Federal Bureau of Investigation’s (“FBI’s”) assertion that Monaghan had failed to
exhaust by paying all the fees demanded—namely, the $864 in fees accrued as of
January 2010.
The preclusion provision is directly applicable, as the FBI did not make a
determination on Monaghan’s request, received on August 31, 2009, within twenty
days, or notify Monaghan of an extension of that statutory deadline, as required
under § 552(a)(6)(A)(i).
Moreover, as I read the “unusual circumstances” exception to the fee
preclusion provision, it does not absolve the FBI of the obligation to inform FOIA
requesters that the agency cannot comply with the application deadline because of
FILED
JAN 28 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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-2-
unusual circumstances. See § 552(a)(4)(A)(viii), (6)(B)–(C). As no such notice was
provided, the unusual circumstances exception does not apply.
Second, I also would hold that the record supports a public interest fee
waiver, under § 552(a)(4)(A)(iii), for Monaghan’s FOIA request. Unlike the
majority, I do not find “unclear” the assertion that release of FBI records
concerning the investigation of the 9/11 crashes could prove informative for the
public concerning government operations. That assertion seems self-evidently true.
Nor do I see the relevance of the precise location of Monaghan’s blog on the
internet; it is accessible, even if not “easily,” to those interested in 9/11 issues, and
Monaghan did, in the blog entries that were included in the stipulated
administrative record, include substantive information regarding the 9/11 attacks,
as well as accounts of his attempts to acquire more information.
For the foregoing reasons, I would reverse the district court’s grant of the
FBI’s motion to dismiss and remand for further proceedings.

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