the fee waiver denial issue and the court below and the da on appeal have advanced for erroneous arguments as to why the district court should not have to even reach the merits of those fee issues the first is the argument that a there were that mr coleman had a duty to prepay to prepay when they were disputed facts raised in the administrative appeal in order to get you to review the second issue was that the case was controlled by pollock the third was that mr coleman had to do an appeal a second to peel after the court case had already been filed in order to advance his fee waiver issue and the fourth issue was that there was no construct the argument to raise only on appeal that no constructive exhaustion is even allowed after an administrative  any any of the requested documents that's correct they never reached the fee to the fee issues never were reached and therefore there is a complete impasse even at the very basic stage the prepayment  fees a sensually shutdown the request let me start by saying that prepayment of fees is not required when there is a direct challenge to the basis for that fee assessment here where the commercial request was incorrectly assigned to mr coleman and he presented in administrative appeal to the d o j saying why he was in the wrong fee category and the  j agreed with him and they remained it back to the da and they sat on and they sat on it and he constructively exhausted and so for that reason this case is not at all like polic where they say that this court suggested you should events here administrative remedies here he did his administrative remedies and the da just did not do a determination on the feet category the problem with this prepay if you think about it is it completely blocks judicial review of fee issues because what if the agency were to say a million dollars is due or no judicial review they say that and what are you going to do if you don't have a million dollars you cannot go to court that's not the rule the rule is you have to constructively exhaust number one and you have to present the issue number two he did both of those things if the agency had the power to say well let's make it a billion dollars a billion dollars prepay or no judicial review  alone would cost seventeen hundred x dollars and that was a modest non disputed amount there the point is that in order for mr coleman to determine if he wanted to go forward he needed to know the full ticket price in other words they couldn't tell him they said in the letter they couldn't write and they just said that we have a search cost right i mean hundred thirty four dollars  ever dollars now he didn't pay that he did not because shouldn't he have paid that to go forward no because in effect he had the right to be fully knowledgeable about fee category he was in and he knew that the fee category they come and that i may be misunderstanding your carries but i thought your case was not the agency was necessarily wrong on whether he was a commercial or a noncommercial requester or what have you but it was simply the extraordinary length of time it took him to get any answer of any kind of at all stages of a well your honor that is what gives us the constructive exhaustion but to cut one step further it's the fact that there was no determination made as to whether that fee category decision was correct or incorrect in other words you have no record from the district court saying he should be nervous when they never told him what the decision was all what the reason will in fact you don't flee is supposed to be a to stop process you've got a request and you go from there to an appeal and then judicial review this whole business of actually something that shouldn't even be happening because if you look at the time frames you've got twenty working days from the request twenty years of this is the problem i have the you have a timeframe which is set out in the in the statute and it's section five fifty two a six a crack and it says do something within twenty days and here they delay processing of the request for a year and four months and they're told by statute to do something within twenty days now there are exceptions to that they can plead unusual circumstances or they can point to the volume of records request and say we can't give you an answer twenty days because it's such a large number of requests re need we need more time with they didn't do that as i understand it may be i may be wrong if i am correct i don't think that the agency needed the exceptional circumstances exception and i didn't think that i didn't think that they  invoked any kind of exceptions to for your life it was personnel sensitive personal information all that it was sensitive classified information it was a trade secret or whatever they just did he just didn't hear ultimate decision was correct it may may not be but the point is the man's entitled to something more than just total silence i mean i don't i'm a mis case but that's what troubles me about it your honor what he's entitled to is that the district court should have determined the fee category issue that once you well the beauty of constructive exhaustion is when the agency sits on it the court gets to decide the issue and the agency has blown its opportunity because it missed a deadline well let me ask you the district court includes agrees with you that noncommercial were what happened at that point the in the end of course there is the fee waiver issue that has to be resolved but assuming that's what i was going to lead yes surely that's a totally new issue well that was you know the regulation requires you to set forth with reasonable specificity all the justifications for it and the arguments throughout this were commercial noncommercial until very late in the game when you wanted a waiver and it seems to me on that issue there has been no appeal to the agency there was no exhaustion and so forth i was trying to stick with the commercial versus noncommercial and so the district court says you're right it's noncommercial in that case you would have to that's sixteen under forty dollars is that what you would say assuming that the feel of or issue was not reached by this court but i will say it was raised on appeal at the j at thirty nine the joint appendix at forty one you'll see that it was raised and the question is was it raised well enough but it's not a situation where the district court should not h e reached the issue that was raised and then if you look at exhibit h which is what came in after the the the da was allowed to do a decision document in november after the case was filed and then  that's allowed then mr coleman should certainly be allowed to respond wrong with this we were all wrapped around the axle where's there's something troubling maybe the agency can explain it as to why there is this incredible delay because you have a statutory provision after statutory provision after statutory provision saying do this within twenty days if you don't the remedy is will be constructively exhausted and here years and years afterwards he's even when the agency admits that there's a problem  e still doesn't have the paper i just can't believe that congress wants to go through the congress morning some a requester to go through all the us and it's not the fact that agency was necessarily wrong in their classification that troubles me it was just the delay in addition to the one year and four months it took him to get an answer under statute which requires twenty days then he takes after this after several years it was still not acted upon he submitted it in april of two thousand and ten nobody acted upon until in august out of desperation or exhaustion or whatever he just nineteen thirty five miles this lawsuit in the eastern district and then in september twenty ninth the a finally gets around to doing something after the march remain and if there hadn't been a lawsuit filed there probably would have gotten around around it then but at each stage  initial response and the a pill and the remains and it's delay after delay after delay they're not you know if a citizen doesn't have a right to have this this kind of basic information from his government whether it be a positive reaction to his request or a negative reaction to requests maybe the agency is right maybe the proper fee should have been seventeen hundred forty eight dollars but why i have to go through all this litigation to get there that is my frustration here we honor if i just briefly respond i see my time is up is that congress did decide that when you miss the deadline then the district court should be there to determine the issue presented in this case the issue presented was the commercial category and the public interest he waiver secondarily and really the district court should not have ducked the issue they said there was failure to exhaust but there was the most exhaustive exhaustion that as you described and there was raising of the issue so what more in pollok have you asked and therefore what the district court should have done is just squarely addressed where it says that the section five fifty to  be on complaint the district court has jurisdiction to enjoy the agency from withholding agency record and to or of the production of any agency records improperly withheld from the complaint and separate jurisdiction to do feed dispute resolution is also in the in the other what you're saying is then the built in remedies or delay and i gather the agency probably has a lot of good answers i mean they don't have personnel they've got backlog and when you're searching millions of documents in the government whatever it is it's it's understandably very difficult but what congress has built in for de lay is access to the court exactly and so your argument basically is the district court sort of should have addressed some of these issues so we're leaving that's what whether it is commercial noncommercial or whether it's how much to pay in advance or a total waiver now the total waivers a little more the delay and i'm not here to defend the delay the agency was wrong in they have an obligation to do that but ultimately before there actually ever was a complaint filed which he had a right to do twenty days after not receiving an answer they did provide a response and that response found that based on the size of the request it was going to be a lengthy search process and they asked for him to pay sixteen hundred forty dollars of the seventeen hundred eighty five dollars in search fees that they estimated and they were permitted to do so why did you say that earlier i mean that it was just you got us you know that i'm not sure how complicated this is but you know and i keep thinking i must be missing something must be wrong in the way that i'm i'm looking at this and i want you know we can't believe that mass implicity view is actually correct which is that the statute requires a response within which says determine within twenty days after the receipt whether to comply with s requests and shall immediately notify the person making such request of such determination in the reasons therefore in other words you could have said we can't get to this right away or we have a we can't do it because there's a statutory exemption it's classified it sensitive personnel it deals with this or that or trade secrets or whatever the whole list of exemptions but just tell the man something i up and i mean this can't be with all the all this can't be what congress wanted this it must be missing something because if i'm not it's a bit of a horror show i agree here that it is the agency should have responded earlier they should have responded no doubt well before a year that it took them but ultimately they did respond and this is no different than the public case where again there they took a year and they were wrong in pollack and they were wrong here but ultimately but also you know timeliness is everything if you're trying to get some records the reason you might want them this is very you know all competitors may distance you or whatever i mean there are people out there who is serious researchers that they need this kind of an timeliness is important if you've got an important project i agree but ultimately they have the right twenty days later if there is no response to bring a suit immediately in court if timeliness is of the essence that is what they are allowed to do if you wait for a decision by the agency then you are stuck with what the agency says and even if you could go to the court for twenty days years you can't fault the man for trying you know we would put so much emphasis on exhaustion right to file suit twenty days later immediately to get to go forward with this but even if he had done so that still doesn't mean that he doesn't have to pay the fees for the search and that's also really what's at issue here because the search is incredibly broad search for basically any correspondence about this particular why did you can tell him that it was a deny the request but it was an incredibly broad search i believe we did tell him many times and when my office got involved i will say we tried to work with your office the united states attorney's office ok in alexandria when we got involved we did try to work with him to narrow the search and this predates me am unfortunately very new to the office so i don't know anything specifically other than speaking with colleagues but they did try to work with him to narrow the search in a way that would lower the cost and would lower the when did you communicate that to him i believe in the record there were multiple phone calls with him and then he wrote letters in tobar in november of twenty that when when was that after when was the first of those will have to february twenty ninth two thousand and eight so this is this is all after he filed the complaint and it's pretty close i don't think about was there any correspondence beforehand because it would be nice to if one could work these things out without having to go to better district co i agree with that and in fact in the appeal which took longer than it should have no doubt but they did specifically request that if the fee amount was too high and that he wanted to work with  search they suggested specifically that he contact and call the office and i don't believe that he ever did that and so i completely agree with you that there should be ways to work this out but ultimately there has never been and narrowing of the request in a way that would lower the search fees the search fees are the only fees that the agency has ever tell me where exactly the suggestion was that he narrow the requests sure  it's day what day well it would be between september and october of twenty ten when after filing the suit and also  there's specifically language in the so in other words this whole idea of narrowing the requests one year and four months passed without telling him to narrow the request to seven months during the appeal passed without telling him to narrow the request six months or so on remain past without telling him to narrow the request so there wasn't any back and forth at all between the agency they were not trying to be helpful in any stage they you haven't pointed to any administrative correspondence prior to the suit that told them to narrow their requests w the i did point to the appeal from the office of information policy which is j forty where that says that told him specifically to contact the de directly if he was willing to accept less than a complete processing i can narrow the request in a way that would come up with what he wanted most importantly and to for example some of this correspondence over sixteen years if he was willing to get rid of some of that it would make and so yes it took a long time for i had no doubt agree that it took way too long for the agency to respond there are you know many excuses but ultimately congress has given the agency the responsibility to respond in twenty days and they didn't meet that but when they did respond ultimately they were within their right to seek the fees they showed asked for him to only forward six hundred forty dollars part of the search to process his request he never did that he never said he was willing to do that he always said he was only willing to pay a thousand dollars total and under the d o j regulations which i have been up ahead of you has a right to contest th well but he's not actually contesting those fees he's contesting review fees that the agency has never actually asked him to pay and has never put a dollar amount never it's never been an issue of them this point is the district court can put an end to this i'm not sure that that's actually true because ultimately we're hearing that as you say that's not true well because ultimately his status as a required as a commercial request or a noncommercial request or doesn't seem to matter here because he's not willing to pay the fees for the search if he were willing to pay the fees for this search then we would be much further along in the process and that's kind of where you know we're stuck here oh  presented that request once to the agency and it is true that you may waive a that me exam constructive exhaustion as to what you have presented to the agency but what you have not presented to the agency is not constructively exhausted and so had he put that in his request any time you know before filing suit and by fifty two  a seven or eight which is an agency shall not assess search for the us or in the case of a noncommercial request of duplication if the agency fails to comply with any time limit in the statu if no unusual or exceptional circumstances a lot of the processing requests so i believe there are actually referring to a new section that was added by congress partially to address this issue that they've not actually asked for that to apply but it wouldn't apply here because that was added in did not become effective in till after these requests were made you are doing one you know this isn't retroactive i think you're losing the forest  here you know you just you trying to instead of making it easier and simpler and making there be a communication between the government and the citizen who's making a request you time the whole thing  through you know through delay isn't through you know the all sorts of questions which may demand all sorts of further litigation at this even at this stage about whether they're going to be searched charged or whether limited yooper cation and those of you know there's a question of whether he's in the public interest or not and all of this should have been sorted out a long time ago i agree it should have been sorted out a long time ago but it's not only the agency's fault he has an obligation to present his request with specificity he never presented his request for a public interest waiver until december si ten that part of it just fine and you keep want to bleed into the merits the point is he was met with total silence if you had asked him for a more specific request or say we cannot meet your request because we don't know it's two then egg or or is it in their own usual circumstances here because the number of documents requested are too many or just that we don't understand exactly what it is you're looking for all i was saying is that i thought congress in these statues simply wanted you to tell the man something something tell him that you know he that the request was denied not if it's not and then the statute goes on to say tell this gentleman some reason there for what you've just been you've been telling me the reasons but the point is the statute says the agency should have told him the reasons and should have told him within twenty days if you look at a request and if you can't make heads or tails of the request  agency has the right to say we can't make heads or tails we deny it and say what the reasons for the denial is because what i don't see is i don't think you have a right to sit on it with four year in four months and then another seven months and then another six months without saying one doggone thing well i would say that they did sit on it way too long and they sat on it for a year and they should not have sat on it for a year but when they did come back in a year they told him longer than the statute provides but when they did come back to him at that time they provided him they said we will process your request if you pay sixteen hundred forty dollars in search fees if you put that forward our d o j regulations say you must pay for the search fees he didn't do that at that point in time the regulations say no further processing is required it might have been that they were wrong initially but issue that really wasn't relevant as to whether he was commercial or noncommercial because the only fees that the agency was requesting were search fees and whether he's commercial or whether he's noncommercial it doesn't matter he still has to pay the search fees and that's ultimately what the district court is getting at is that he doesn't need to determine which is what his status is because he's not willing to pay the six hundred forty dollars and so he very well might be a noncommercial requester but he still hasn't paid the six hundred  forty dollars and they still haven't improperly withheld the documents because they are allowed to not process the doc the the request further intil there's the payment of the six hundred forty dollars and that's what pollock says the exact same thing happened where the agency waited way too long and the court said two wrongs don't make a right agency might have waited way too long but the agency was still entitled to the fees and that's all that we're saying here we're not trying to defend what the agency did in terms of timing or anything else on ultimately on the public interest waiver it's i think of a totally different issue which is the need to present it to the agency before bringing the case here and it just wasn't done and that is an exhaustion issue the fees issue is is separate in the sense of that's the policy issue says he had to pay those fees now he could have brought a fee waiver request he had the opportunity to do it he didn't do it until december sixth two thousand and ten i know my opposing counsel said he raised this on appeal but in fact the statement on appeal was said you know despite being eligible to request a fee waiver i offered to reimburse the da for  duplication costs up to a thousand dollars i mean he he clearly didn't take an appeal and if you need or didn't request a fee waiver and if you need any further confirmation of that he filed an affidavit in the court below saying that he quote and this is still you know you did something and it totally is ironic but ultimately it helps the district court because as the statute specific on the fee waiver says is that the only thing that the court is allowed to look at is what's in the record before the agency and ultimately there's only one of the we don't have we don't some cases you just have to cut the gordian knot and if we don't cut the gordian knot in a case like this the signals that we are are sending is an agency can come out with you know with with him in numeral delays and all of these this bureaucratic  to of void giving someone a record to which he is by act of congress in entitled and this man he shouldn't have to hire counsel to deal with all of these very arcane statutory provisions you know you should go out of your way to do this person was under he was not represented by counsel at the time he made his request was he was not represent although he is quite knowledgeable about the foyer maybe so we can have a sliding scale of knowledge ability he was under represented and i don't want to stand while the agency can when they have an unrepresented request or try out to make things easier romo than more difficult by not giving him any answer tying him up and not and you know knowing that he's not going to be able to hire a lawyer because a lawyer in an attempt to resolve this issue would pay it would cost many many more thousands of dollars than the difference between a thousand dollars and the seventy hundred forty eight figure that the agency in the requester are quarreling over you know you have him over a barrel he doesn't have a lawyer and he can't afford to hire a lawyer so you think you can take your own sweet time in dealing with  ely if the court wants to send a strong message to the agencies that they need to respond that's fine i still think we're completely right on the law i don't disagree with you they were should respond faster and in problem  addressing the problem and i'm not trying to justify it but the problem was the way that statue was designed and i gather basically it's an agency responsibility to do it in twenty days but what the congress said is the sanction is if you don't you go to court and get it done right and a court can do it in twenty days or twenty one days and repeat if time was of the essence he could do that the problem for this man your argument i gather is that when finally did respond delay wasn't the issue it was the payment of the sixteen forty and sixteen forty was a gate he had to go through in order to get documents and he chose not to and  he went to court court said he didn't go through that gate i think that exactly sums up our argument well i'm wondering something more even more basic because there are all kinds of issues were delaying their waivers of agency rights and i'm wondering in a situation like this where the record is no condemned natori of the stepped forward and said here is how we're going to resolve it in the future it didn't apply to this particular fee but going forward if he were to put a new request in today he would have that provision that you mentioned and if they don't respond in twenty days they can't get search fees and so congress has responded here and i don't think it's even why wouldn't that why wouldn't that provision that says we're not going home you're not going to have you're going to be limited to duplication phase why would that provision apply because that provision specifically says that it only applies to information requests after a year after the enactment of the statute which is you know after the request at issue here but at some point there has to be paula case involves almost the exact same delays and yes he didn't ever ask for a fee waiver anywhere he said he wasn't in a pain and fees but it's no different you know he was actually asking exactly what your honor is proposing here is that well the agency can't charge me any fees because of the excessive way i have or statutory provision which which would waive the search it would going forward but again congress was quite explicit as to starting the starting date of when what request it would apply to and it doesn't apply here and they haven't argued i assume that's why they haven't argued here because you know congress was very clear as to when they were which requests for information applied to and it was after th but going forward i do think that that will help agencies push them for whatever additional incentive they need to act quickly because i know i mean it's a very minor s if we want to get into what congress intended now surely in trying to do nothing why yes agreed but ultimately i think once the agency did act even if it was too slow they had the right to the fees and us i would like to make three brief points that directly address the questions that were presented to my able posing counsel first is as to the legal right this is a situation where the legal right under constructive exhaustion actually occurred in one of the later stages that judge wilkinson referred to when the d o j issued its decision on march twenty ninth two thousand and ten and it sent the request back to the a at that point they received the request they received it from the d o j and the twenty working days apply there and there wasn't anything that mr coleman could appeal he was waiting for a decision so as a matter of law what distinguishes this case from ovals be or holic or any of those other cases is this is not a case where he did appeal initially he got a decision any one the appeal it was sent back to the agency in the agency gets the request and then he was entitle to a decision within twenty working days and he had nothing to appeal so as a matter of law this was a case where constructive exhaustion exactly my second point the the payment issue and the prepayment of the search allows the agency to not go forward to the money that's exactly the second point i was going to raise the prepayment issue the prepayment issue is this if you are ordering food at a restaurant you know the price that you're going to pay the total price you have a menu this gentleman had a right to know which feat category he was going to be in because frankly he could decide i'm not even going to go forward with request if i go to a restaurant that's the menus too expensive i can say i will not order an order if i will not order dinner and the point is he had a right to get a decision of which fee category he was in to decide do i go forward at all and and i think that preliminary question would have dictated whether he did go forward or not and related to your all of the questions from counsel as to narrowing this process let me say that mr coleman did offer to narrow and i will affirmatively say if this case is it seems to me if your hypothetical is right that are not hypothetical if your argument is correct then his sanction is twenty days after they remain and go to district court and get that or the sanction of congress provided isn't punishment for delay i mean the government is us as an operation that no one person controls go to court is go to court that's your exactly right that's what he got on board and he can go back but the agency still is justified it seems to me to say we're not going to start until we get pre payment that's right and he is not arguing that he doesn't have to pay and he's not arguing that he has to get the records first all he wants is a settlement of which category he is under before he gives a blank check to not even knowing which fee category he would fit under let me say this if this case is reminded number one there is no question that mr coleman is prepared to work with the agency because he thinks they do not understand his request in a way that significantly could narrow the request number two he's offered in his in his letter of april twenty second which is in the record at forty two he's offered to help the narrow the process by doing what's called the reading room review where he goes through the records and says i want i don't they i want item b it saves a ton of agency time it saves a ton of agency costs so mr coleman is absolutely willing to narrow this request the problem is he never got the chance and the reason he never got the chance is because a the agency on remain and dropped the ball and he constructively exhausted and b the district court respectfully dropped the ball by saying we're not going to cut to the chase we're not going to resolve the the fee issues and let this move on to the next stage because it would have led to a if they gave a price tag that was too high it would have led to a natural tendency a win win whereby he would say i only want this and not and they say sure that's only going to cost five hundred and everybody wins the problem is when the district court says we're going to throw the case out after he's public interest fee waiver i appreciate that the comments of mabel posing counsel that there was a limited raising of that issue before the case was filed but the thing that is important to recognize is eafter mr coleman filed on to december sixth two thousand and ten a document that exhaustively walk through the public interest fee waiver fact already in court by them so the question presented is if the agency is allowed to respond after the court cases filed does it not follow that the requestor has the same the administrative remedy the administrative process is effectively still going on just subject to the court's judicial oversight and so i would argue that those documents if they are allowed in it has to be either both of them are out or both of them are and it does not follow that one of them can come in the agency's response and not mr coleman's detailed letter saying