Case No. VFA-0453, 27 DOE ¶ 80,173
November 17, 1998
DECISION AND ORDER
OF THE DEPARTMENT OF ENERGY
Appeal
Name of Appellant: Ruth Towle Murphy
Date of Filing: October 19, 1998
Case Numbers: VFA-0453
Ruth Towle Murphy files this Appeal pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the Department of Energy at 10 C.F.R. § 1004.
Murphy filed a FOIA request with the Department’s Office of Scientific and Technical Information (OSTI) in Oak Ridge, Tennessee.(1) In her request, Murphy sought material dealing with health and safety issues at OSTI. In addition, she asked for a waiver of fees for finding and duplicating the requested materials.
Lowell Langford, the Freedom of Information Officer at OSTI, initially responded to Murphy in a letter dated September 18, 1998. Langford stated that her request “does not meet the necessary criteria” for a fee waiver set out at 10 C.F.R. § 1004.9(a)(8), but gave her until October 9 to provide more information. On October 9, Langford sent Murphy his final response, informing her that “our decision to … deny a fee waiver for providing the information requested stands.” Murphy now appeals the denial of her request for a fee waiver. Because we find that Murphy failed to show her eligibility for a fee waiver, we will deny the Appeal.
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, it provides a two-pronged test for agencies to use in considering whether to waive the fees. The two prongs can be summarized as the “public interest” prong and the “commercial interest” prong. The public interest prong requires an examination of whether disclosure of the information is likely to contribute significantly to public understanding of the operations or activities of the government. The commercial interest prong asks whether the request is primarily in the commercial interest of the requester. 5 U.S.C. § 552(a)(4)(A)(iii).
The burden of satisfying the two-prong test for a fee waiver is on the requester. Larson v. CIA, 843 F.2d 1481, 1483 (D.C. Cir. 1988);International Brotherhood of Electrical Workers, 26 DOE ¶ 80,153 (1997) (IBEW).
In order to determine whether the requester meets the first prong - that is, 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 - the Department considers the four factors listed below.
(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.
(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). A requester who satisfies the four factors of the public interest prong must then address the second prong by showing that disclosure of the information is not primarily in his or her commercial interest.
Although OSTI did not explain why it denied Murphy’s request for a fee waiver, we find Factor C - whether the disclosure contributes to the understanding of the general public - to be determinative in this case. In considering whether the requester satisfies this factor, the relevant inquiry is whether he or she will disseminate the disclosed records to a reasonably broad audience of persons interested in the subject. Carney v. Department of Justice, 19 F.3d 807, 814 (2d Cir. 1994) (Carney). To meet this test, the requester must have the intention and ability to disseminate this information to the public. IBEW, 26 DOE at 80,671; James L. Schwab, 22 DOE ¶ 80,133 (1992). The inability to disseminate information, by itself, is sufficient basis for denying a fee waiver request. Larson v. CIA, 843 F.2d 1481, 1483 (D.C. Cir. 1988).
Murphy stated in her appeal that she is a doctoral student at the University of Tennessee. She said that the information she is requesting is for research on her dissertation, and “will be offered to the general public at no cost.” She provides no explanation, however, of how her dissertation will be disseminated to a reasonably broad academic audience, as required in Carney.
The courts have looked closely at a requester’s ability to broadly disseminate the requested information. For example, a researcher sought a fee waiver based on his statement that “I am an instructor and researcher employed by Middle Tennessee State University, and intend to use the information I am requesting as the basis for a planned book.” Burriss v. CIA, 524 F. Supp. 448, 449 (M.D. Tenn. 1981). The court upheld the agency’s denial of a fee waiver request based on its finding that the requester’s statements had not demonstrated his ability to effectively disseminate the information to the public. Similarly, a requester’s intention to merely place the requested information in a library is insufficient, in itself, to establish public dissemination for the purpose of obtaining a fee waiver. Klamath Water Users Protective Ass’n v. Department of the Interior, No. 96-3077, slip op. at 47 (D. Or. June 19, 1997) (magistrate’s recommendation), adopted (D. Or. Oct. 16, 1997) (appeal pending).
Although the requester must disseminate the disclosed information to the public to obtain a fee waiver, the information need not reach a broad cross-section of the public. As the court explained in Carney:
The [agency] suggests that, because [the requester’s] dissertation and proposed articles and book ... are scholarly in nature, they will not reach a general audience and hence will not benefit the public at large. Such work by its nature usually will not reach a general audience, but, by enlightening interested scholars, it often is of great benefit to the public at large.... The relevant inquiry, as we see it, is whether the requester will disseminate the disclosed records to a reasonably broad audience of persons interested in the subject.
From the information he submitted to the [agency], we are satisfied that [the requester] will disseminate the disclosed records to a sufficiently broad audience of students and academics interested in his work.... While it is true that [the requester’s] book is only tentative, the fact that he is working on a related dissertation is sufficient evidence, for purposes of the public interest fee waiver, to conclude that his book will be completed.
Carney 19 F.3d at 815.
While it is clear that the dissemination requirement may be met by disclosing the information to a community of scholars, we do not find that Murphy has met this standard. Murphy has provided us with no evidence of her ability to disseminate the information to a sufficiently broad audience, and she has thus failed to meet the requirements for a fee waiver for this request. We will therefore deny this Appeal. (2)
It Is Therefore Ordered That:
(1) The Appeal filed by Ruth Towle Murphy, Case No. VFA-0453, 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: November 17, 1998
(1) 1/ Murphy filed nine separate FOIA requests between August 31 and September 15, 1998, all dealing with health and safety at OSTI. The FOIA office at OSTI aggregated the nine requests into one.
(2) 2/ Because Murphy has not met the burden of satisfying the public interest prong, we need not consider the second prong of the test - whether disclosure of the information is primarily in the commercial interest of the requester.