William H. Payne, Case No. VFA-0128, March 26, 1996

Case No. VFA-0128, 25 DOE ¶ 80,184

March 26, 1996

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: William H. Payne

Date of Filing: February 28, 1996

Case Numbers: VFA-0128

VFA-0137

VFA-0138

VFA-0139

VFA-0140

VFA-0141

On February 28, 1996,<1> William H. Payne filed an Appeal from three determinations, two letters and one Decision and Order. Mr. Payne requests that we release information that he requested from the Department of Energy (DOE) under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004.

The FOIA requires that documents held by federal agencies generally be released to the public upon request. If responsive documents cannot be located, the requestor must be informed whether the requested record is known to have been destroyed or never to have existed. 10 C.F.R. § 1004.4(d).

I. Background

In a letter dated February 5, 1996, Mr. Payne seeks to appeal various FOIA requests and DOE FOIA determinations. Specifically Mr. Payne requests that we review the DOE's handling of three requests for information concerning: (i) the names, last known addresses, and phone numbers of what he claims are 60 to 100 whistleblowers with unsettled cases in the Office of Contractor Employee Protection (OCEP) (Request No. 9512210001), (ii) all DOE authored investigation reports examining allegations that the National Security Agency willfully and purposely attempted to sabotage Sandia National Laboratory (SNL) cryptographic projects (Request No. 9511200002) and (iii) reports on certain investigations of misconduct made by DOE's Office of Inspector General (IG) (Request No. 9512110004) (OHA Case No. VFA-0137). Additionally, Mr. Payne appeals a January 24, 1996 DOE-AL determination denying a requested fee waiver for law firm invoices he requested under the FOIA (OHA Case No. VFA-0128), and a November 6, 1995 DOE-AL determination stating that documents responsive to his request for current SNL employees who are retired from the military ("double dippers") are not agency records subject to the FOIA (OHA Case No. VFA-0139). Mr. Payne also seeks review of a January 5, 1996 DOE-AL determination stating that no responsive documents exist concerning husband-wife pairs employed at either SNL or DOE-AL (OHA Case No. VFA-0140); and a December 14, 1995 letter signed by a University of California<2> employee concerning husband-wife pairs employed at Los Alamos National Laboratory (LANL) (OHA Case No. VFA-0138). Finally Mr. Payne has also filed a Motion for Reconsideration (OHA Case No. VFA-0141) of a Decision and Order issued by this office concerning his request for LANL "double dippers." See William H. Payne, 25 DOE ¶ 80,147 (1995) (Payne).<3>

In support of his fee waiver request which DOE-AL denied on January 24, 1996, Mr. Payne stated that he has published three books (one book was published in both English and Spanish) and six magazine articles. <4> He also notes that he has supplied information to the Baltimore Sun for its whistleblowing series on the National Security Agency and "published" numerous letters on the Internet. Moreover, Mr. Payne indicates that he is writing a book about fraud, waste, mismanagement, corruption, violations of law, classification abuse, and the abuse of national security interests at the DOE. Finally, Mr. Payne references two articles that discuss his allegations with regard to his "whistleblower" activities.<5>

II. Analysis

1. Pending FOIA requests at the FOIA Division

This portion of Mr. Payne's FOIA appeal relates to three requests for documents submitted to the FOIA Division for information concerning certain investigations performed by DOE's IG and OCEP (OHA Case No. VFA-0137). In the course of evaluating this matter, we learned that these requests are still pending with the FOIA Division. See Memorandum of Telephone Conversation between Ariane Cerlenko, OHA Staff Attorney and Ed McGinnis, FOIA Division analyst (February 15, 1996). OHA can only assume jurisdiction over a FOIA matter after a DOE Authorizing Official has rendered an initial determination. See Suffolk County, L.I., 17 DOE ¶ 80,111 at 80,524 (1988). Because the FOIA Division has not yet issued determinations regarding these requests Mr. Payne's appeal is not ripe and we will dismiss this portion of Mr. Payne's FOIA appeal.

2. Fee Waiver Denial

This portion of Mr. Payne's FOIA appeal concerns a determination issued by DOE-AL in which Mr. Payne's request for a fee waiver was denied (OHA Case No. VFA-0128). Mr. Payne requested a fee waiver with respect to his FOIA request for law firm billing invoices stating that he intended to use the information in a book he was writing on waste, fraud and abuse. Mr. Payne argues that the billing invoices would show the amount of taxpayer money "wasted" by Sandia Corp. in contesting certain lawsuits. DOE-AL found that "any benefit associated with the release of the requested documents will flow primarily to [Mr. Payne] and not to a greater understanding or for a greater benefit to the public." See January 24 Determination Letter at 2.

The FOIA generally requires that requesters pay the cost of fees for the processing of their requests.

5 U.S.C. § 552(a)(4)(A)(ii); see also 10 C.F.R. § 1004.9(a). However, the Act provides:

Documents shall be furnished without any charge or at a charge reduced below the fees established under clause (ii) if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.

5 U.S.C. § 552(a)(4)(A)(iii). The burden of satisfying this two prong test rests on the requester. Larson v. Central Intelligence Agency, 843 F.2d 1481, 1483 (D.C. Cir. 1988) (per curiam) (Larson). The DOE has implemented this statutory standard for fee waivers in its FOIA regulations. See 10 C.F.R. § 1004.9(a)(8). Those regulations set forth the following four factors which must be considered by the agency in order to determine whether the first statutory fee waiver condition, public understanding of the government, has been met:

(A) The subject of the request: Whether the subject of the requested records concerns "the operations or activities of the government;"

(B) The informative value of the information to be disclosed: Whether the disclosure is "likely to contribute" to an understanding of government operations or activities;

(C) The contribution to an understanding by the general public of the subject likely to result from disclosure; and

(D) The significance of the contribution to public understanding: Whether the disclosure is likely to contribute "significantly" to public understanding of government operations or activities.

10 C.F.R. § 1004.9(a)(8)(i).<6>

A fee waiver is only appropriate where the subject matter of the requested records specifically concerns the operations or activities of the government. See Department of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 772-75 (1989). Therefore, fees may be waived only when the records are sought for their informative value in relation to specifically identified government operations or activities. See William H. Payne, 24 DOE ¶ 80,134 (1994) (finding that telephone billing records of certain DOE-AL employees had no informative value in relation to government operations or activities). In the present case, the law firm invoices sought by Mr. Payne relate to the amount of taxpayer money spent by a contractor defending lawsuits at a national laboratory. It appears clear that this information concerns identifiable "operations or activities of the government." Cf. Indian Law Center v. Department of Interior, 477 F. Supp. 144 (D.D.C. 1979); The Rio Grande Sun, 15 DOE ¶ 80,132 (1987); H. Michael Clyde, 13 DOE ¶ 90,101 (1985).

Even if the particular records requested concern the operations or activities of the government, in order to be granted a fee waiver, the requester must demonstrate at least some capability to disseminate the information received from responsive documents to the public. See Larson, 843 F.2d at 1483. This ability to disseminate information includes an examination of the qualifications of the requester to determine if they have the ability to understand and process the requested records. See McClellan Ecological Seepage Situation v. Carlucci, 835 F.2d 1282, 1286 (9th Cir. 1987).

In the present case , Mr. Payne's representations that he is writing a book do not allow us to infer an ability to disseminate information regarding the requested law firm invoices. See Burriss v. CIA, 524 F. Supp. 448, 449 (M.D. Tenn. 1981) (denial of fee waiver request "based upon mere representation that [the requester] is a researcher who plans to write a book" is not an abuse of discretion). Similarly, Mr. Payne's claim that he has "published" numerous letters on the Internet concerning waste, fraud and abuse and that this "publication" establishes an ability to disseminate information regarding the law firm billing invoices, is unconvincing. <7> In addition, while Mr. Payne has shown some media interest in his "whistleblowing" activities, he has shown an interest on the part of neither the media in general nor a particular publisher on the subject matter of his request, i.e. law firm billing invoices as evidence of waste, fraud and abuse. See Eugene Maples, 23 DOE ¶ 80,111 (1993); James L. Schwab, 22 DOE ¶ 80,133 at 80,569 (1992).

Mr. Payne also asserts that his proven ability to publish material in the past is evidence of his ability to disseminate the requested material. While it is true that Mr. Payne has published in the past, the vast majority of his published material concerns computer programming and is not linked to government or other waste, fraud and abuse. The two articles that Mr. Payne wrote which arguably concern waste, fraud and abuse were written over 23 years ago while Mr. Payne was a visiting Research Associate and serving on a Graduate Studies committee. This does not establish the type of current, specialized knowledge necessary to extract, synthesize and then convey the information to the general public. See Pederson v. Resolution Trust Corp., 847 F. Supp. 851 (D. Colo. 1994).

As mentioned earlier, the burden of satisfying the fee waiver requirements rests on the requester. In the present case, Mr. Payne has not demonstrated that he can meaningfully disseminate information about the law firm invoices, even if they concern the operations or activities of government.<8> Accordingly, this portion of Mr. Payne's Appeal should be denied.

3. Agency Records

This portion of Mr. Payne's appeal concerns two determinations issued by DOE-AL. The first determination issued on November 6, 1995, found that responsive records, to the extent that they exist, and contain the names and dates of employment of retired military personnel employed at SNL ("double dippers"), are not agency records subject to the provisions of the FOIA (OHA Case No. VFA-0139). In this portion of the Decision we also address a second determination issued by DOE-AL for records containing the names and dates of employment of "double dippers" employed at LANL (OHA Case No. VFA-0141). Since the second determination was the subject of a Decision and Order already issued by this office, we have treated Mr. Payne's attempted "appeal" of that determination as a Motion for Reconsideration of this Office's Decision and Order.

a. Retired Military Personnel Employed at SNL

The threshold inquiry in addressing this portion of Mr. Payne's appeal is whether personnel files, which would possibly contain responsive information, generated by and in the possession of a DOE contractor are subject to the FOIA. In making this determination, we must first determine whether such records are "agency records," and thus subject to the FOIA, under the criteria set out by the federal courts. See 5 U.S.C. § 552(f). Records that do not meet these criteria however can nonetheless still be subject to release under the DOE regulations. 10 C.F.R. § 1004.3(e); see 59 Fed. Reg. 63,884 (December 12, 1994). In the present case, we conclude that the records in question are not "agency records" and are not subject to the FOIA under DOE regulations.

The statutory language of the FOIA does not define the essential attributes of "agency records," but merely lists examples of the types of information required to be made available to the public. See 5 U.S.C. § 552(a). In interpreting this phrase, we have applied a two-stage analysis fashioned by the courts for determining whether documents created by non-federal organizations, such as the Sandia Corp., are subject to the FOIA. See, e.g., B.M.F. Enterprises, 21 DOE 80,127 (1991); William Albert Hewgley, 19 DOE ¶ 80,120 (1989); Judith M. Gibbs, 16 DOE ¶ 80,133 (1987) (Gibbs). That analysis involves a determination (i) whether the organization is an "agency" for purposes of the FOIA, and if not, (ii) whether the requested material is nonetheless an "agency record." See Gibbs, 16 DOE at 80,595.

The FOIA defines the term "agency" to include any "executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch . . . , or any independent regulatory agency." 5 U.S.C. § 552(f). The courts have identified certain factors to consider in determining whether an entity should be regarded as an agency for purposes of federal law. In United States v. Orleans, 425 U.S. 807 (1976), a case which involved a statute other than the FOIA, the Supreme Court defined the conditions under which a private organization must be considered a federal agency as follows: "[T]he question here is not whether the . . . agency receives federal money and must comply with federal standards and regulations, but whether its day-to-day operations are supervised by the Federal Government." Id. at 815. In other words, an organization will be considered a federal agency only where its structure and daily operations are subject to substantial federal control. See Ciba-Geigy Corp. v. Matthews, 428 F. Supp. 523, 528 (S.D.N.Y. 1977). Subsequently, the Supreme Court ruled that the Orleans standard provides the appropriate basis for ascertaining whether an organization is an "agency" in the context of a FOIA request for "agency records." Forsham v. Harris, 445 U.S. 169, 180 (1980) (Forsham). See also Washington Research Project, Inc. v. HEW, 504 F.2d 238, 248 (D.C. Cir. 1974), cert. denied, 421 U.S. 963 (1975) (degree of independent governmental decision-making authority considered); Rocap v. Indiek, 539 F.2d 174 (D.C. Cir. 1976).

Under its contractual relationship with the DOE, Sandia Corp. manages and operates SNL. While the DOE obtained Sandia Corp.'s services and exercises general control over the contract work, it does not supervise Sandia Corp.'s day-to-day operations. We therefore conclude that Sandia Corp. is not an "agency" subject to the FOIA. See William Kuntz, III, 25 DOE ¶ 80,157 (1996).

Although Sandia Corp. is not an agency for the purposes of the FOIA, its records relevant to Mr. Payne's request could become "agency records" if they were obtained by the DOE and were within the DOE's control at the time the FOIA request was made. See Department of Justice v. Tax Analysts, 492 U.S. 136, 144-46 (1989); Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136 (1980) (Kissinger); Forsham, 445 U.S. at 182. In this case, the documents in question had not been obtained by the DOE and were not in the agency's control at the time of the appellant's request. Thus, the records do not qualify as "agency records" under the test set forth by the federal courts. See Tax Analysts, 492 U.S. at 145-46; Forsham, 445 U.S. at 185-86; Kissinger, 445 U.S. at 150-51.

Even if contractor-acquired or contractor-generated records fail to qualify as "agency records," they may still be subject to release if the contract between the DOE and that contractor provides that the document in question is the property of the agency. The DOE FOIA regulations provide that "[w]hen a contract with DOE provides that any records acquired or generated by the contractor in its performance of the contract shall be the property of the Government, DOE will make available to the public such records that are in the possession of the Government or the contractor, unless the records are exempt from public disclosure under 5 U.S.C. § 552(b)." 10 C.F.R. § 1004.3(e)(1).

We therefore next look to the contract between the DOE and Sandia Corp. to determine the status of these records. That contract states:

Except as is provided in paragraph (b) of this provision and as may be otherwise agreed upon by the Government and the Contractor, all records acquired or generated by the Contractor in its performance of this contract shall be the property of the Government and shall be delivered to the Government or otherwise disposed of by the Contractor either as the Contracting Officer may from time to time direct during the progress of the work, or in any event, as the Contracting Officer shall direct upon settlement of this contract.

Contract DE-AC04-94AL85000, Cl. H-18 (a). Paragraph (b) of this clause states that the category of records that remain the property of the Contractor includes "Personnel records, medical records and files (excluding personnel radiation exposure records ) maintained on individual employees, applicants and former employees[.]" Id. at H-18 (b)(1). Thus, because personnel records are not among the records which are "property of the Government" under the DOE's contract with Sandia Corp., these records are not subject to release under the DOE regulations.

For the reasons set forth above, we find that the records sought by the appellant are neither "agency records" within the meaning of the FOIA, nor subject to the FOIA under DOE regulations. Accordingly, we shall deny this portion of Mr. Payne's Appeal.

b. Retired Military Personnel Employed at LANL

Mr. Payne's Motion for Reconsideration concerns a request for information concerning "double dippers" working at LANL. See Payne, 25 DOE at 80,611. In circumstances similar to those detailed above with respect to Sandia Corp. records, we found in the Payne case that the requested documents were contained in personnel files in the possession and control of the University of California, the prime contractor responsible for maintaining and operating LANL and were therefore not agency records subject to the provisions of the FOIA. Id. Accordingly, we denied Mr. Payne's appeal.

We have thoroughly reviewed this Motion for Reconsideration, and have found no new material or circumstances that would lead us to alter our prior Decision.<9>In his Motion, Mr. Payne merely states that he wishes to appeal the denial of the information. Since he has provided no new additional information or shown changed circumstances, we will deny this Motion for Reconsideration. See E.O. Smelser, 24 DOE ¶ 80,161 (1994).

4. Adequacy of the Search

This portion of Mr. Payne's appeal concerns a January 5, 1996 DOE-AL determination in which DOE-AL states that it did not find material responsive to Mr. Payne's request for documents containing the "names, date of employment, current salaries of all husband-wife pairs employed at [SNL or DOE-AL]" (OHA Case No. VFA-0140).

The FOIA requires that documents held by federal agencies generally be released to the public upon request. Following an appropriate request, agencies are required to search their records for responsive documents. We have stated on numerous occasions that a FOIA request deserves a thorough and conscientious search for responsive documents, and we have not hesitated to remand a case where it is evident that the search conducted was in fact inadequate. See, e.g., Barton Kaplan, 22 DOE ¶ 80,125 (1992); Hideca Petroleum Corp., 9 DOE ¶ 80,108 (1981); Charles Varon, 6 DOE ¶ 80,118 (1980).

In order to determine whether an agency's search was adequate, its actions are examined under a "standard of reasonableness." McGehee v. CIA, 697 F.2d 1095, 1100-01 (D.C. Cir. 1983). This standard "does not require absolute exhaustion of the files; instead it requires a search reasonably calculated to uncover the sought materials." Miller v. Department of State, 779 F.2d 1378, 1384-85 (8th Cir. 1985) (Miller). Furthermore, the determination of whether a search was reasonable is "dependent upon the circumstances of the case." Founding Church of Scientology v. National Security Agency, 610 F.2d 824, 834 (D.C. Cir. 1979).

In reviewing the Appeal, we contacted Elva Barfield, FOIA Officer, DOE-AL, to ascertain the extent of the search that had been performed and to determine whether any documents responsive to the Mr. Payne's request might exist. According to Ms. Barfield, searches were conducted by the Kirtland Area Office (KAO) and the Human Resources Division (HRD) of DOE-AL. In addition, searches were conducted by Sandia Corp. to determine if it possessed responsive documents which are the property of the DOE. No responsive records were located in any of the offices searched. While it is theoretically possible that the information that Mr. Payne requested could be retrieved by comparing each and every personnel file, the FOIA neither requires the creation of a responsive record where none exists, nor an exhaustive search. See Miller, 779 F.2d at 1384-85; Linda P. Yeatts, 25 DOE ¶ 80,154 (1995); Lloyd Makey, 24 DOE ¶ 80,163 (1994); Dr. Robert Sanchez, 24 DOE ¶ 80,136 (1994).

Under these circumstances, we are convinced that DOE-AL followed procedures which were reasonably calculated to uncover the information sought by Mr. Payne. DOE-AL has performed a rationally based search for responsive agency records. Moreover, despite the fact that the FOIA does not apply to records of nongovernmental entities, including government contractors, those facilities were searched as well. Furthermore, Mr. Payne has not presented any evidence that DOE possesses responsive documents. See Mark S. Boggs, 22 DOE ¶ 80,102 (1992). Accordingly, this portion of Mr. Payne's appeal will also be denied.

5. Contractor Response to a Request for Information

Lastly, Mr. Payne appeals a December 14, 1995 letter sent to Mr. Payne by a University of California employee in response to his request for information concerning husband and wide pairs employed at LANL (OHA Case No. VFA-0138). The OHA can assume jurisdiction over a FOIA matter only after an Authorizing Official has rendered an initial determination on the matter. See 10 C.F.R. § 1004.8(a). An Authorizing Official is a DOE officer having custody of or responsibility for records requested under the FOIA. See 10 C.F.R § 1004.2. The December 14 letter is not an agency determination under the FOIA. Accordingly, this portion of Mr. Payne's Appeal will also be dismissed.

It Is Therefore Ordered That:

(1)The Appeal filed by William H. Payne, Case No. VFA-0137, on February 28, 1996, is hereby dismissed.

(2)The Appeal filed by William H. Payne, Case No. VFA-0128, on February 28, 1996, is hereby denied.

(3)The Appeal filed by William H. Payne, Case No. VFA-0139, on February 28, 1996, is hereby denied.

(4)The Motion for Reconsideration filed by William H. Payne, Case No. VFA-0141, on February 28, 1996, is hereby denied.

(5)The Appeal filed by William H. Payne, Case No. VFA-0140, on February 28, 1996, is hereby denied.

(6)The Appeal filed by William H. Payne, Case No. VFA-0138, on February 28, 1996, is hereby dismissed.

(7)This is a final Order of the Department of Energy from which any aggrieved party may seek judicial review pursuant to 5 U.S.C. § 552(a)(4)(B). Judicial review may be sought in the district in which the requester resides or has a principal place of business, or in which the agency records are situated, or in the District of Columbia.

George B. Breznay

Director

Office of Hearings and Appeals

Date: March 26, 1996

<1>Mr. Payne's correspondence with the Secretary of Energy was forwarded to this Office on February 21, 1995 (Feb. 5 Payne correspondence). In reviewing the correspondence we determined that Mr. Payne was appealing several different Freedom of Information Act (FOIA) matters. However, the correspondence did not include copies of the determinations so that this Office could begin processing the FOIA Appeal. See 10 C.F.R. § 1004.8(b). After contacting Mr. Payne and speaking with FOIA officials at the Department of Energy's Albuquerque Operations Office (DOE-AL) and its Headquarters Freedom of Information and Privacy Act Division (FOIA Division), we believe that we now possess the Decision and Order, letters and determinations which were the subject of Mr. Payne's correspondence. His Appeal was considered to be filed as of February 28, 1996.

<2>The University of California is the prime contractor responsible for maintaining and operating LANL.

<3>In addition to those items mentioned above, it appears that Mr. Payne also desired to appeal a denial under the FOIA of copies of Sandia Corporation (Sandia Corp.) computer chip purchase orders at SNL. However, we have been unable to locate any FOIA request filed by Mr. Payne or a determination letter issued by the DOE concerning this matter. DOE-AL informs us that its database, which tracks all incoming FOIA requests, shows no record of a request for computer chip purchase orders, and DOE-AL would be the appropriate operations office to process such a request if it was filed pursuant to the FOIA. See Memorandum of Telephone Conversation between Elva Barfield, DOE-AL FOIA Officer and Ariane Cerlenko, OHA Staff Attorney (February 14, 1996). FOIA appellants may not file new requests for information in their appeals. See Alan J. White, 17 DOE ¶ 80,117 at 80,539 (1988); Arthur Scanla, 13 DOE ¶ 80,133 at 80,622 n.2 (1986). Mr. Payne should therefore file a request for this information with DOE-AL if he seeks to determine whether there is any responsive information on this matter.

<4>It appears that Mr. Payne has published the following materials:

(1) William H. Payne, Machine, Assembly and System Programming for the IBM 360 (1969) (in English and 1971 in Spanish);

(2) William H. Payne, Implementing BASICs: How BASICs Work (1982);

(3) William H. Payne, Embedded Controller Forth for the 8051 Family (1990);

(4) William H. Payne, Graduate Education: The Ph.D. Glut, 16 Communications of the ACM (1973);

(5) P. Freeman, M.A. Malcolm, William H. Payne, Graduate Education: The Ph.D. Glut, Response and Rebuttal, 17 Communications of the ACM 206-07 (1973);

(6) William H. Payne, Setting FORTH, 4 Timex/Sinclair User 42-46 (1982);

(7) William H. Payne, ROMable FORTH Applications Code Development, 4 IEEE Software 100-102 (1984);

(8) William H. Payne , Decode overlapped EPROM, RAM, and I/O, EDN (May 17, 1987);

(9) William H. Payne, Combine FORTH with other Tools for Rapid Software Development, Electronic Design 103-06 (1988).

<5>The two articles, which appeared in the Albuquerque Journal, discuss the lawsuit that Mr. Payne filed against Sandia Corp. and efforts by the DOE to scrutinize old "whistleblower" cases. See Stieber, Tamar, Fired Worker Files Lawsuit Against Sandia, Albuquerque Journal (April 25, 1993); Spohn, Lawrence, DOE to Scrutinize Fairness in Old Whistleblower Cases, Albuquerque Journal (November 7, 1995). Mr. Payne was interviewed for the article written by Mr. Spohn.

<6>If the DOE finds that a request satisfies these four factors, it must also consider whether disclosure of the information is primarily in the commercial interest of the requester. 10 C.F.R. § 1004.9(a)(8)(ii).

<7>In investigating Mr. Payne's claim to have "published" letters via posting on the Internet, we performed four comprehensive searches of the various resources available on the Internet (World Wide Web, Gopher, Telnet and Usenet Newsgroups) using Yahoo, AltaVista, Webcrawler and Lycos search engines. We searched for any documents containing his name. The only responsive material we discovered consisted of a Decision and Order issued by this office containing Mr. Payne's name and the book published by Mr. Payne entitled Embedded controller Forth for the 8051 family. We note that the posting of an article or articles on the Internet is not necessarily the type of broad circulation envisioned by courts evaluating fee waiver requests. See e.g. National Treasury Employees Union v. Griffin, 811 F.2d 644, 648 (D.C. Cir. 1987); Crooker v. Department of the Army, 577 F. Supp. 1220, 1223 (D.D.C. 1984). Further, our inability to locate this "published" information supports the finding that the "publication" claimed by Mr. Payne is insufficiently broad to show dissemination ability.

<8>Even if we had found that Mr. Payne had the ability to disseminate the requested information, we would still have upheld DOE-AL's denial of his fee waiver request. In evaluating a fee waiver request, the agency must also determine whether disclosure of the information is "likely to contribute" to the public's understanding of the government operations and activities. In this regard, we note that the Office of Chief Counsel, DOE-AL, has released to Mr. Payne the aggregate invoice amount related to both the "Morales" litigation and the work performed by the law firm of Simons, Cuddy and Friedman at SNL. See Letter from Charles S. Przybylek, Chief Counsel, DOE-AL to William H. Payne (February 21, 1996). Since Mr. Payne already possesses the total amount of money spent on these matters at SNL, the itemization of amounts claimed on any particular invoice is not likely to contribute anything new to the public's understanding. See e.g. Knolls Action Project, 25 DOE ¶ 80,148 (1995); U.A. Plumbers and Pipefitters Local 36, 24 DOE ¶ 80,148 (1994).

<9>We will modify a prior Decision and Order in an FOIA proceeding where an applicant persuasively demonstrates that (1) the prior determination was incorrect because we did not consider all material facts or we misapplied the law, or (2) the prior determination, though correct when issued, is no longer correct because of a change in the applicable law or the circumstances of the case. See Ron Vader, 23 DOE ¶ 80,183 (1994); Power City Electric, Inc., 23 DOE ¶ 80,126 (1993).