Case No. VFA-0238 , 26 DOE ¶ 80,147

December 23, 1996

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Glen Milner

Date of Filing: December 2, 1996

Case Number: VFA-0238

On December 2, 1996, Glen Milner (Appellant) completed the filing of an Appeal from determinations issued to him by the Albuquerque Operations Office (AO) of the Department of Energy (DOE) on May 8, 1996 and October 7, 1996.(1) In each determination, AO denied a request for a waiver of fees in connection with a request filed by the Appellant under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004. In his Appeal, the Appellant asks that we reverse AO's determinations and grant him a fee waiver, either unconditionally or until such time as he fails to publish an article based on information contained in the requested documents.

I. Background

In a submission dated March 22, 1996, the Appellant filed a Request for Information under the FOIA (March 22 Request) requesting from AO all documents on record since 1985 concerning specially fitted railcars for the transport of nuclear weapons. In his FOIA Request, the Appellant also requested a fee waiver for the costs associated with processing his FOIA Request. In support of this request, he stated that he intended to write a newspaper article concerning the requested information and submit the article to various newspapers. He also asserted that the requested information would contribute significantly to the public's understanding of the operations of government by illustrating that the DOE had not followed through on plans announced in 1992 to send the specially fitted

railcars to Russia for use in that country's disarmament. The Appellant described these plans in his March 22 Request as a "public relations effort" on the part of DOE.(2)

In its May 8, 1996 determination letter (Determination Letter), AO denied the Appellant's fee waiver request. AO concluded that the Appellant did not have the qualifications to "extract, synthesize, and the means to effectively convey to the public the information contained in the records."

In subsequent letters to AO, the Appellant argued that he had already received a commitment from one newspaper, Ground Zero, to publish his intended article. He also proposed that AO grant him a fee waiver, but if he did not succeed in publishing an article, he would then pay the fees associated with his FOIA request. He also argued that because he had succeeded in publishing an article in the Seattle Times in 1989 and the Seattle Post-Intelligencer in 1990 on the topic of nuclear weapons and their transportation, he had shown the ability to disseminate the information to the general public. AO determined on October 7, 1996, that the FOIA regulations did not provide for a conditional fee waiver. Therefore, it stated that in the absence of a commitment from the Appellant to pay fees, AO considered the Appellant's FOIA request as withdrawn. On November 26, 1996, the Appellant submitted his Appeal to this Office.

II. Analysis

The FOIA generally requires that requesters pay fees for the processing of their requests. 5 U.S.C. § 552(a)(4)(A)(i); 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) (1988 ed.). The burden of satisfying this two prong test is on the requester. Larson v. Central Intelligence Agency, 843 F.2d 1481, 1483 (D.C. Cir. 1988) (per curiam) (Larson). The DOE has implemented the statutory standard for fee waiver in its FOIA regulations. See 10 C.F.R. § 1004.9(a)(8). Those regulations set forth the following four factors that an agency must consider to determine whether the requester has met the first statutory fee waiver condition, i.e., whether disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of government operations or activities:

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

We note initially that there is no provision in the DOE FOIA regulations for the type of conditional fee waiver that the Appellant has proposed.(3) Therefore, we have performed a de novo review of the merits of the Appellant's request for an unconditional fee waiver and find that the Appellant should be granted a fee waiver for the reasons described below.

Factor A

Factor A asks us to determine whether the subject of the requested documents concerns the operations or activities of the government. A fee waiver is appropriate only where the subject matter of the requested documents specifically concerns identifiable "operations or activities of the government." See Department of Justice v. Reporters Comm. for Freedom of the Press, 109 S. Ct. 1468, 1481-83 (1989); U.A. Plumbers and Pipefitters Local 36, 24 DOE ¶ 80,148 at 80,621 (1994) (Local 36). The requested documents concern DOE's operation of railcars used for the transport of nuclear weapons, clearly a government activity, and thus, we find this request meets the conditions outlined in Factor A.

Factor B

Factor B requires a consideration of whether the disclosure of information is "likely to contribute" to the public's understanding of government operations and activities. See Local 36; Seehuus Associates, 23 DOE ¶ 80,180 (1994) (Seehuus). The focus of this factor is on whether the information is already in the public domain or otherwise common knowledge among the general population. Seehuus, 23 DOE at 80,694. If the information is already publicly available, release to the requester would not contribute to public understanding and a fee waiver may not be appropriate. The information at issue is not in the public domain and could contribute to the public's understanding of government operations. We therefore find that the requested information meets this criterion.

Factor C

Factor C requires us to consider whether the requested documents would contribute to the understanding of the subject by the general public. To meet this test, the requester must have the ability and intention to disseminate this information to the public. James L. Schwab, 22 DOE ¶ 80,133 at 80,569 (1992). In the present case, the Appellant has, since filing his Appeal, contacted one of the New York Times reporters, William J. Broad, who wrote one of the stories cited in Footnote 2. In a telephone conversation with an OHA attorney, Mr. Broad confirmed his belief that information contained in the documents would be newsworthy, because it might explain why DOE has apparently failed to follow through on the publicized 1992 plans. See Memorandum of Telephone Conversation between Dawn L. Goldstein, OHA Attorney, and William J. Broad, Reporter, New York Times (December 4, 1996). The Appellant has also demonstrated the ability to summarize complex information into understandable articles, as shown by two articles he has published in major Seattle papers, albeit approximately seven years ago. Given the facts that have recently come to light, we find that the Appellant has now demonstrated that he has the ability to disseminate information to the general public. We also find that the Appellant has demonstrated the intention to disseminate information he obtains from the requested documents to the public and thus improve its understanding of government operations. See Eugene Maples, 23 DOE ¶ 80,111 at 80,522 (1993).

Factor D

In order to satisfy the requirements of Factor D the requested documents must contribute significantly to the public understanding of government operations or activities. The Department of Justice has suggested the following test for this factor:

To warrant a fee waiver or reduction of fees, the public's understanding of the subject matter in question, as compared to the level of public understanding existing prior to the disclosure, must be likely to be enhanced by the disclosure to a significant extent.

1995 Justice Department Guide to the Freedom of Information Act 381 (1995); See Local 36; Seehuus.

In the present case, the Appellant asserts that the requested documents will enable him to determine whether DOE failed to follow through on stated intentions to send specially fitted railcars to Russia for disarmament purposes and thus will contribute significantly to the public's understanding of government operations and activities. If the requested documents do in fact contain such information, we believe that the public's understanding of this matter would likely be enhanced to a significant extent by disclosure. However, we note that the public interest aspect of the Appellant's request relates only to documents generated between the time of DOE's publicized plans for the railcars in 1992 and the present time, because the newsworthy issue, in the context of this Appeal, is whether the railcars were ever sent to Russia as planned. Therefore, we will grant a fee waiver only for documents relating to that time period.

In view of our evaluation of the foregoing factors, we find that the Appellant has, with respect to the documents relating to the period above, satisfied the four factors that an agency must weigh to determine whether the requester has met the first statutory fee waiver condition. In other words, the Appellant has shown that disclosure of some of the requested documents is in the public interest because this disclosure is likely to contribute significantly to the public understanding of government operations or activities. We further note that AO did not determine whether the Appellant's interest is commercial, but there is no basis in the record for finding that it is.

Having determined that the Appellant has satisfied the regulatory fee waiver requirements discussed above, we find that his Appeal should be granted in part and that he should be granted a fee waiver for his March 22, 1996 FOIA Request.

It Is Therefore Ordered That:

(1) The Appeal filed by Glen Milner on December 2, 1996, is hereby granted in part as set forth in Paragraph (2) below and denied in all other respects.

(2) The fees assessed for complying with Glen Milner's March 22, 1996 FOIA request shall be waived in full with regard to documents generated from 1992 until the completion of the search that concern specially fitted railcars for the transport of nuclear weapons.

(3) This is a final order of the Department of Energy from which any aggrieved party may seek judicial review. 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: December 23, 1996

(1)The Appellant initially filed a submission with the OHA on November 1, 1996, but did not make any arguments asserting why AO's determination should be reversed. The OHA held the submission in abeyance until we received his arguments and the May 8, 1996 determination. We have accepted the Appellant's Appeal of the May 8, 1996 determination, despite its lack of timeliness, because the Appellant and AO continued to communicate regarding the fee waiver issue until AO's October 7, 1996 determination.

(2)These railcars were part of what was known popularly as the "White Train" or the "Nuclear Train." This train transported nuclear weapons in the 1980s, and was a source of much public protest. In 1992, several newspaper articles reported that the railcars would be sent to Russia to aid in disarmament. See Thomas L. Friedman, Baker and Yeltsin Agree on U.S. Aid in Scrapping Arms, N.Y. Times, February 18, 1992 at A1; Lloyd Pritchett, White Train May Travel in Russia, Bremerton Sun, February 13, 1992 at A1; see also William J. Broad, Moving A-Arms by Rail: Can Terrorists Be Foiled?, N.Y. Times, February 18, 1992 at A8. The Appellant has submitted a decision by this Office noting that an employee of DOE's Defense Programs stated that there never were any such plans. Glen Milner, 25 DOE ¶ 80,215 at 80,791 (1996). According to the Appellant, this statement is erroneous and contradicted by the newspaper articles.

(3)The Appellant argues that the DOE may start processing cases based merely on "an agreement to pay." While it is true that under certain circumstances, DOE can process a large request based on a "satisfactory assurance of full payment," 10 C.F.R. § 1004.9(b)(8)(i), the Appellant has been unwilling to make such an assurance here. He is only willing to pay the fees if he fails to publish an article, which is not a "satisfactory assurance of full payment."