good morning just says brian gaffney propellants environmental protection information center and four sisters group i'd like to reserve five minutes if i may for a rebuttal if any this case involves the interplay between the freedom of information act korea and the ira cultural adjustment act of one nine hundred thirty eight the main issues in this case are one is seven u s c thirteen eighty seven of cultural just an act its express prohibition against affecting the power to dispose of materials under any other provision of law a statute specifically providing for setting the level of peace and to what is the relationship of first impression no agency has ever claimed that seven u s c thirteen a seven is a statute that specifically studying the level of fees such that it qualifies as a for a fo in just a couple of minutes tell us on a practical basis how this is that affecting people so that we're in the greatest mention of anywhere i don't know from a small amount after court thousand dollars and so i'm just the practical one applications people are coming in wanting to look at records and how much it cost and what sort of tell me and agencies want to recoup some money so that they don't have to pay for this or both of  on plans by the united states for service for national forests they do this on a continual basis in two thousand and two proximately three years ago both the group in humboldt county environment protection information center and the group not only did they not get those documents because as hand to mouth nonprofit groups they don't have the three hundred fifty dollars to pay but not only that the groups have stopped  requests for this data and so now when they comment to the u s forest service they're deprived of the information the agency has in order to comment on the half of the public so this is happening not only with these two particular groups and then the practical effect i guess to the other side is if someone is claiming that they have to pay four thousand dollars that's a lot of work that an agency has to do to copy things so that people can just click through right here it's slightly different because when the fire was always amended in one thousand nine hundred ninety six under the electronic freedom of information act records were expanded to include electronic data and so this is actually more than just hard paper copies electronic data it provides three dimensional juice spatial information and so the harm to the agency is i assume that they would have to make copies on to cd roms which in many cases including these appellants was provided and click it above and push and copy it onto a cd rom and then mail it now in the context of that is the fact that congress has that agencies shall provide the waivers when they find as here that the requesters meet the criteria and the criteria for a fee waiver as the court knows is it's a  decision i believe the position that was taken was that the statutes are clear on their face and that's the court need not look to any tools of statutory interpretation moreover under a for a three  itself from being used as such a statute specifically providing fee's congress uses the term shall not affect the power the other part of our argument is that contrary to the forest service position the forest service does not have discretion as to whether or not to comply with or provide the documents under thirty seven under the our first argument of an express prohibition the office of management and budget which has been given a privileged position by congress and for oil because it says that all other agency regulations must conform to o m b guidelines o m b published a rule that specifically stated after this  six was added in one thousand nine hundred sixty four that says that quote guidance makes it clear that a qualifying statute must require and not merely permit an agency to establish fees for particular records and our position is that the statute thirty seven does not require or permit it expressly prohibits secondly the services own regulations contradict their position here in one nine hundred ninety seven they published a final rule and that final rule states that costs under seven u s c thirty seven quote do not affect accessibility under the freedom of information act there's been no rule modifying this proposed or otherwise and so courts have found qualified as a for six statutes because they specifically provide none of them contain the exemption language here that such statutes shall not affect the power to dispose under any other statute now regarding the forest service arguments that somehow they have some sort of discretionary power as a as a politically matter it's important to point out that both the statute in this  friends of coast for stated that the court's review is limited to the record before the agency and that post hoc rationalisations are pretty well this argument that somehow it has discretion to choose was never raised administr mandatory language of shall that the agency shall provide the waivers when as here the criteria are met moreover last two years ago in t p s first as department of defense the court held that in regards to computer data that the purpose of congress was to expand rather than rather than narrow the agency's obligations under for it also the services position is again contrary to their own regulations nothing in the regulations nothing in the forest service manual allows the agency a choice of whether to comply with oil or creates an exemption from for ya for fee waivers for computer g i s data instead of the regs and the forest service manual continually reiterate availability of the waivers and state the specific criteria that all data including b again in a final rule concluded that quote the legislative history relating to for the section eight for a six is unambiguous in stating that it is not intended to change existing law record is clear both the house and the senate in the report states that this section shall not change current law the house goes on to explain that the new language simply clarifies that statutes setting specific that for your fee waivers are to be liberally construed in favor of noncommercial requesters and that the main purpose of the statute is to remove road blocks being used by agency  congress again in two thousand and three took it upon itself to publish of point a handbook and that for a handbook states that decisions about fees charged for a question are quote separate and different than decisions about fee waivers the bottom line is these days for what reason you should reverse because the statute and waivers under if for three and as this court did in mcclellan because the agency's reasons are inadequate are probably going to say that it is it isn't that easy so tell us how what you do in the statutory construction and i told you the relative times what do we have to first say about thirteen eighty seven to get to your other arguments the statutes clear on its face so the starches have been shall not affect the power of the agency to dispose that's an express prohibition there is nothing about discretion because for as states that fee waiver shall be granted once it and see determines that the requestor has met the criteria that to the extent that there is a conflict between the statutes that are under statutory construction that statutes are not read as perspective what the thirteen eighty seven have had to it's excessive thirty seven would it have to not include the provision that this section shall not affect the power of the secretary to dispose of records under any other structure when when when the court looks at the legislative history o m b and ogles be out of the d c circuit every time that a co that a statute specifically sets the level of fees none of those statutes stop the one from the government printing office the national medical library at cetera include this statement about the section shall not of effect the power to dispose like you want provision to supersede the standing statutes but the statute says just the opposite the statute is controlling here there is no ambiguity and there is no need to refer to the legislative history because the court raised to the planes as a practical application question with respect to the amount of money that is involved here the record here shows that the charge for the first request was three hundred fifty dollars fifty six dollars for the second request fifty six dollars for the third request and seventy one dollars for the last request and that's at the supplemental excerpts of record at pages one ninety three through one ninety four to  nine through to ten to twenty four to two to twenty five to thirty four to thirty six and the court also pointed out that to the extent that the practical application involves expenditure of funds that it would be that you would with respect to the assertion that was made by the plaintiff that these requests are being made by agencies that are hand to mouth public interest agencies what we're seeing in the brief is that the plant of seemed to be trying to make the argument that affordability equals accessibility and the law does not the law does not provide for that sort of an interpretation and the fee waivers are not granted based upon financial need it's quite possible that some of these interest and whether it lends itself to more understanding of government operations that sort of thing so the issue of allegedly being hand to mouth is certainly not an issue here some it's not they don't have to put down how much money they take an or anything along those lines but they do have to satisfy a level that they're doing this for the public interest and and as opposed to that they just want their just curious exactly exactly  of management and budget him anything to do with should be should anything just came from the office of management and budget in there into consideration as we decide who wins know you're on our leave it was not nothing from the office of management and budget was a part of the district court decision and the district court looked to the plane and unambiguous wording of the statute and impact with respect to the public bearing the cost of reproducing this information for private groups that he i understand you have helen just say that you're the only people that are charging you're saying this would be the first and everyone saying this is your view about taking different positions on what's the truth i mean what you're saying they haven't been charged before by other people tell you started arjen your honor my understanding which is based upon the the record case the matthews case there was a similar statute the ts statute which did allow for charging and my understanding is that government agencies may charge for certain documents and also my understanding is that with respect to the purpose of the freedom of information act it was basically enacted so that there's not government secrecy and so that it's clear to the public the type of other activities that the government is engaging in and that sort of thing there are other documents that the government may have including maps and deals spatial information other information that has its value not in the information that's contained there but has its value in the amount of intended for to begin with at this point and perhaps instead of purchasing your maps from brand mcnally or thomas brothers you make a freedom of information act request and as a public interest case and that statute such as thirteen eighty seven we're not a pleasurable then that could have been included in section eighty four eighty six it was not included there was no limitation and i'd also like to point out that with respect to the amounts that are being charged here and what is being charged for the records shows that an individual who is requesting the g i as records is charge for supplies materials shipping and mailing charges and labor costs directly associated with regenerating to the extent that they addressed this question with respect to charging for documents the discretion in this case is necessary in order for the agency to continue with its mission and to serve its mission and  resources are are diverted to producing this information for private individuals that that is very problematic consistent with the purposes of point and there applicable here it seems to me that you live and so i've got i've got to have a reason not to find those applicable as first off there's there's no support that there's some out isn't there some sort of burdensome criteria that needs to be applied here in the statutes or the regs secondly the argument that somehow the documents and argue that it provides the majority because it states that the forest service charge the fee for copies of records not generally made available but released pursuant to a four request what they fail to point out is that the statement goes on to state that it references the regulations at seven c a four appendix a appendix a is where the fee waiver is laid out in their own regulations and where the few whatever criteria is laid an argument is sure nothing means nothing but it's has to do with these charges will not be waivers and when we look at the legislative history that a six was not supposed to change existing law the way it was that the in the books for twelve years at that point the the not only is that the o m b regulations which the court should look at which they should but also the services regulations in a final route sixty four federal register three three ninety five that says that seven u s c thirty seven quote shall not affect acceptability under the tree of information act excess ability under the freedom of information act includes access to documents for noncommercial questers here what the court should do