The Century Foundation, Plaintiffv.Betsy Devos, in her official capacity, and the United States Department of Education, Defendants
OPINION & ORDERPlaintiff The Century Foundation (“TCF”) moves for attorneys’ fees and costs pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. §552(a)(4)(E). Defendant, the United States Department of Education (“The Department”), opposes. For the following reasons, TCF’s motion is DENIED.BACKGROUNDOn January 23, 2018, TCF submitted two FOIA requests to the Department. Compl. Exs. B, C. The FOIA requests sought materials in connection with a notice (the “Solicitation”) that the Department had released for publication in the Federal Register the following day. See 83 Fed. Reg. 3335 (Jan. 24, 2018). The Solicitation called for public comments “concerning the performance of accrediting agencies,” stated that written comments “must be received” by February 16, 2018, and explained that “[o]nly written material submitted by the deadline…become part of the official record.” Id. Despite soliciting public comments “concerning the performance of accrediting agencies” and specifying that “[c]omments about an agency’s recognition after review of a compliance report must relate to issues identified in the compliance report,” id., strangely, the Department did not make publicly available the applications for recognition or the compliance reports submitted by the accrediting agencies. In other words, the Department was seeking comments on reports which it had not made available. Hence, TCF’s FOIA requests sought disclosure of an application for initial recognition submitted by the Accrediting Council for Independent Colleges and Schools (“ACICS”) and a compliance report submitted by the American Bar Association (“ABA”). Compl. Exs. B, C. TCF also requested a fee waiver and expedited processing of the FOIA requests in order to obtain the documents before the February 16, 2018 deadline for public comments. Id. On February 6, 2018, the Department granted TCF’s request for a fee waiver, but it denied expedited processing, stating that TCF had “not demonstrated a compelling need for the information.” Compl. Exs. F, G.Two days later, on February 8, 2018, TCF brought this action alleging violations of FOIA and the Administrative Procedure Act (“APA”). See Compl., Dkt. 9. TCF sought to compel the Department under the APA to extend the comment period and under FOIA to immediately provide the requested documents. Id.
