Case No. VFA-0447, 27 DOE ¶ 80,167

October 28, 1998

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Tod N. Rockefeller

Date of Filings: September 29, 1998

Case Numbers: VFA-0447

On September 29, 1998, Edward Slavin, Jr., Esq. (Slavin), filed an Appeal with the Office of Hearings and Appeals (OHA) of the Department of Energy (DOE) on behalf of his client Tod N. Rockefeller (Rockefeller) in response to a determination that DOE’s Albuquerque Operations Office (AL) issued to Rockefeller on September 24, 1998. The determination concerned a request for information that Rockefeller submitted pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004. The Appeal, if granted, would result in AL releasing any existing responsive material to Rockefeller free of charge.

I. Background

On August 4, 1998, Slavin, on behalf of Rockefeller, filed a FOIA request with AL requesting copies of: (1) the telephone records of several AL employees, (2) any DOE legal bills for whistleblower issues, (3) legal audits of AL and DOE’s Carlsbad Area Office (CAO), (4) a government ethics file for a former CAO manager, (5) and any and all documents regarding Tod Rockefeller that exist in AL, CAO, OHA, DOE Headquarters, or Westinghouse, contractor for CAO. Letter from Slavin to Tyler Przybylek, Chief Counsel, AL (August 4, 1998) (Request Letter). Slavin stated that “a full fee waiver is requested in the public interest in preventing, detecting and exposing government fraud. . . . “ Request Letter at 8. According to Slavin, “DOE site workers and managers have a right to know the truth of all of the matters covered by this request.” Id.

AL denied Rockefeller’s request for a fee waiver. Letter from Elva Barfield, AL, to Slavin (September 24, 1998). According to AL, both the Merit Systems Protection Board and the Office of Special Counsel of the Department of Labor had found Rockefeller’s whistleblower allegations to be without merit. Thus, AL concluded that Rockefeller’s current action was “personal in nature” and that Slavin, as Rockefeller’s attorney, made the FOIA request for Slavin’s own commercial interest. AL went on to state that it determined that Rockefeller’s request was not likely to contribute

significantly to public understanding of the operation and activities of the government. Id. Thus, AL denied Rockefeller’s request for a fee waiver. Slavin then filed this Appeal, asserting that AL failed to properly weigh the fee waiver criteria and the public interest. Letter from Slavin to OHA Director (September 29, 1998) (Appeal).

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.).

Statutory Standard For Fee Waiver

The burden of satisfying the two-prong test for a fee waiver is on the requester. See International Brotherhood of Electrical Workers, 26 DOE ¶ 80,153 (1997) (IBEW); Larson v. CIA, 843 F.2d 1481, 1483 (D.C. Cir. 1988) (per curiam). 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 which must be considered by the agency in order to determine whether the first statutory fee waiver condition has been met, 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;” (Factor A)

(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; (Factor B)

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

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

(A) The existence and magnitude of a commercial interest: Whether the requester has a commercial interest that would be furthered by the requested disclosure; and, if so

(B) The primary interest in disclosure: Whether the magnitude of the identified commercial interest of the requester is sufficiently large, in comparison with the public interest in disclosure, that disclosure is “primarily in the commercial interest of the requester.”

10 C.F.R. § 1004.9(a)(8)(ii). We have performed a de novo review of the merits of Rockefeller’s request for a fee waiver and find that Rockefeller should not be granted a fee waiver for the reasons described below.

Disclosure Would Not Be In The Public Interest

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 material concerns government operations or activities. See IBEW, 26 DOE at 80,671. We have previously found that standard telephone billing records, without any evidence linking them to identified government operations, have no informative value in relation to government operations or activities. See William H. Payne, 24 DOE ¶ 80,134 at 80,857 (1994). Thus, we find that disclosure of this part of Rockefeller’s request is not in the public interest. However, the remaining items requested by Rockefeller (DOE legal bills related to whistleblower issues, legal audits of AL and CAO, a government ethics file for a former CAO manager, and all documents regarding Rockefeller) are likely to contain information that specifically concerns government operations or activities. See William H. Payne, 25 DOE ¶ 80,184 (1996) (stating that subject matter of law firm invoices discloses how the government spends taxpayer money). Therefore, we conclude that the subject of most of the requested material meets the requirement of Factor A.

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 Seehuus Associates, 23 DOE ¶ 80,180 (1994) (Seehuus). If the information is publicly available or common knowledge among the general population, release to the requester would not contribute to the public understanding. Seehuus, 23 DOE at 80,694. The material at issue here is not in the public domain, and could contribute to the public’s understanding of how the government deals with whistleblower issues. Thus, the requested information meets this requirement.

Factor C asks us to determine whether the requested material would contribute to the general public’s understanding of the subject. To meet this test, the requester must have the ability and intention to disseminate this information to the public. See IBEW, 26 DOE at 80,671; James L. Schwab, 22 DOE ¶ 80,133 (1992). See also Judicial Watch, Inc. v. Department of Justice, No. 97-

2089, slip op. at 13 (D.D.C. Jul. 14, 1998) (finding failure to establish intent and ability to convey information fatal to request for fee waiver); Carney v. Department of Justice, 19 F.3d 807, 814 (2d Cir. 1994) (stating that relevant inquiry is whether requester will disseminate the disclosed records to a reasonably broad pool of interested persons). We find that Slavin’s statement that “Rockefeller merely seeks to share information about . . . his case with the public” is insufficient and does not demonstrate either Slavin or Rockefeller’s intent or ability to meaningfully disseminate the information to the public. See McClellan Ecological Seepage Situation v. Carlucci, 835 F.2d 1282, 1285 (9th Cir. 1987) (McClellan) (conclusory statements will not support a fee waiver request). Therefore, we conclude that release of the requested material would not contribute to the general public’s understanding of the subject, and thus does not meet the requirement of Factor C.

Factor D requires us to consider the significance of the contribution made under Factor C. Because we have previously determined that the release of the material would not contribute to public understanding under Factor C, we find that there is no significance to the contribution. Therefore, we conclude that the requested information does not meet the requirement of Factor D.

III. Conclusion

Because the requester has not met his burden of satisfying all four factors of the fee waiver regulation, we need not consider whether disclosure of the information is primarily in the commercial interest of the requester.(1) Accordingly, the Appeal should be denied.

It Is Therefore Ordered That:

(1) The Appeal filed on September 29, 1998 by Tod Rockefeller, OHA Case No. VFA-0447, is hereby denied.

(2) 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: October 28, 1998

(1)We note, however, that we do not agree with AL’s conclusion that Slavin should be designated a commercial requester because his client did not prevail in previous whistleblower actions. We have no evidence that Rockefeller’s current action is “personal in nature” as AL contends, or that Rockefeller is not pursuing a new action seeking compensation or retribution for wrongs he allegedly suffered. Courts have held that where a requester seeks information to assist in a suit seeking “compensation or retribution,” such a suit is not a “commercial interest” within the meaning of the FOIA. See McClellan, 835 F.2d at 1285 (finding no commercial interest in records sought in furtherance of requesters’ tort claim). See also Government Accountability Project, 25 DOE ¶ 80,203 (1996) (granting fee waiver to public interest law firm); Government Accountability Project, 23 DOE ¶ 80,169 at 80,668 (1993); Muffoletto v. Sessions, 760 F.Supp. 268, 277-78 (E.D.N.Y. 1991) (finding no commercial use when records were sought to defend against state court action to recover debts).