Case No. VFA-0329, 26 DOE ¶ 80,222

September 26, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner:William H. Payne

Date of Filing: September 2, 1997

Case Number: VFA-0329

On August 14, 1997, William H. Payne made a request under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the Department of Energy (DOE) in 10 C.F.R. Part 1004, and at the same time, sought a fee waiver for this request from the Freedom of Information Officer of the Office of Public Affairs of the DOE's Albuquerque Operations Office (FOIA Officer). On September 2, 1997, Mr. Payne filed a FOIA Appeal requesting that the Office of Hearings and Appeals (OHA) of the DOE grant a fee waiver for his August 14, 1997 FOIA request and respond to his allegation that the FOIA Officer violated federal law when she did not issue a determination concerning his FOIA request within ten days.

In an August 15, 1997 letter titled "RECEIPT OF FREEDOM OF INFORMATION ACT REQUEST," the FOIA Officer informed Mr. Payne that "[i]f the estimated cost of fulfilling your FOIA request exceeds what you are allowed [without charge], we will correspond with you again addressing your request for a fee waiver." The FOIA Officer informed us that she did not consider this letter to be a denial of Mr. Payne's fee waiver request. See September 3, 1997 Record of Telephone Conversation between Leonard M. Tao, OHA Staff Attorney, and Elva Ann Barfield, FOIA Officer, Albuquerque Operations Office. Since the FOIA Officer acknowledged that she did not make a determination regarding Mr. Payne's fee waiver request nor has she completed her search for documents, Mr. Payne's fee waiver appeal is not ripe for our review. See 10 C.F.R. § 1004.8(a). Thus, we must dismiss the fee waiver portion of this appeal. However, we encourage the FOIA Officer to issue a determination concerning Mr. Payne's fee waiver request as quickly as possible.

Mr. Payne also asks us to describe "the steps . . . [OHA is] taking to bring . . . [the FOIA Officer] to justice for violating federal law." Under the FOIA, OHA has jurisdiction to review agency determinations related to information access. The unspecified relief that Mr. Payne seeks against the FOIA Officer is not part of OHA's jurisdiction. When a FOIA Officer fails to respond to a FOIA request within ten days, we can only request that the FOIA Officer act on this matter expeditiously. If Mr. Payne chooses, he has the right under the regulations to seek judicial review on this issue in federal district court. See Association of Public Agency Customers, 26 DOE ¶ 80,103 (1996).

It Is Therefore Ordered That:

(1) The Appeal filed by William H. Payne on September 2, 1997, Case Number VFA-0329, is hereby dismissed.

(2) This is a final Order of the Department of Energy from which any aggrieved party may seek judicial review pursuant to the provisions of 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: September 26, 1997