Case No. VFA-0468, 27 DOE ¶ 80,184

January 21, 1999

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Tod N. Rockefeller

Date of Filing: December 22, 1998

Case Number: VFA-0468

On December 22, 1998, Tod N. Rockefeller (Appellant) filed an Appeal from a determination issued to him on December 15, 1998, by the Freedom of Information Officer at the Department of Energy’s Albuquerque Operations Office (DOE/AL). That determination followed a Decision and Order of this Office in which the Appellant appealed a previous determination by the DOE/AL. See Tod N. Rockefeller, 27 DOE ¶ 80,167 (1998) (Rockefeller). DOE/AL's first determination denied the Appellant’s request for a fee waiver with regard to a request for information submitted pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, implemented by the DOE in 10 C.F.R. Part 1004. In Rockefeller, we affirmed DOE/AL's denial of a fee waiver. DOE/AL then requested that the Appellant provide adequate assurances that he would pay the fees associated with processing his FOIA request. The Appellant failed to provide what DOE/AL considered adequate assurances and that office notified him that it was administratively closing his case. If the present Appeal were granted, the DOE would be ordered to continue processing the Appellant's case and conduct his initially requested search under a full fee waiver.

I. Background

In an August 4, 1998 FOIA request, the Appellant sought information connected with his dismissal from his job and a waiver of fees for processing that request. In a September 24, 1998 determination, DOE/AL denied the Appellant’s request for a fee waiver.

The Appellant appealed, and in Rockefeller, we found that a fee waiver should not be granted to the Appellant. Rockefeller, 27 DOE at 80,667. DOE/AL then requested that the Appellant provide adequate assurances that he would pay the fees that would be incurred in processing the Appellant's August 4, 1998 request. The Appellant responded in the following manner: "while Mr. Rockefeller is willing to pay fees if a fee waiver were denied, he is unemployed. He is unwilling to pay improper fees, excessive fees, exorbitant fees, confiscatory fees, or retaliatory fees." Letter from Appellant's Counsel to Elva Ann Barfield, Freedom of Information Officer, DOE/AL (December 5, 1998). DOE/AL responded that since it did not consider this response to convey the Appellant's willingness to pay fees as requested, it was closing the Appellant's request file. Letter from Elva Ann Barfield

to Appellant's Counsel (December 15, 1998). The Appellant subsequently filed the present Appeal in which he contends that he had adequately conveyed the willingness to pay "reasonable" fees and challenges our original Rockefeller determination. Letter from Appellant's Counsel to Director, OHA (December 22, 1998) (Appeal Letter).

II. Analysis

In the Appeal Letter, the Appellant made a number of different arguments. First, he argued that his December 5, 1998 letter adequately conveyed his willingness to pay "reasonable" fees. Second, he argued that we should overturn our Rockefeller determination because he now meets all of the requirements for granting a fee waiver and because this Office failed to consider an important document in reaching our fee waiver determination. Third, he noted that he has made two additional FOIA requests that he does not believe that DOE/AL is processing.

We have examined each of the Appellant’s arguments carefully and make the following determinations. First, we note that the question of whether the Appellant has adequately conveyed his willingness to pay fees would not normally appear to be a question subject to this Office's jurisdiction as laid out in 10 C.F.R. § 1004.8(a).(1) However, because this issue is related to the Appellant's fee waiver denial (an issue squarely within our jurisdiction) and because we are mindful that the DOE intends to provide customer-friendly service whenever possible, we will resolve the issue the Appellant has raised.

We find that the Appellant's offer to pay only legal, non-excessive and reasonable fees is not adequate. Requesters may state their willingness to pay only fees provided for by either the DOE regulations or the FOIA statute. They may also place certain limitations on their assurance to pay fees such as the amount of costs they are willing to authorize the agency to incur. However, the Appellant's limitation appears to leave the discretion as to the definition of "excessive" and "reasonable" to the Appellant. This puts the shoe on the wrong foot. DOE/AL is the deciding authority in the first instance. The subjective limitation which the Appellant seeks cannot be considered a satisfactory assurance of full payment. For this reason, it was not improper for DOE/AL to administratively close the Appellant's August 4, 1998 request.(2)

Next, we do not agree with the Appellant that he now meets all of the requirements for granting a fee waiver. In our Rockefeller decision, we found that the Appellant failed to meet the requirements of Factor C and Factor D of the fee waiver test. Factor C is the amount of "the contribution to an understanding by the general public of the subject likely to result from disclosure." 10 C.F.R. § 1004.9(a)(8)(i)(C). To meet this test, the requester must have the ability and intention to disseminate this information to the public. International Brotherhood of Electrical Workers, 26 DOE ¶ 80,153 at 80,671 (1997). The only additional information on this topic the Appellant has provided is that he is obtaining statements "from New Mexico citizens concerned about environmental issues and expect[s] to file them soon." See Appeal Letter at 2. This information is irrelevant because it conveys nothing about the Appellant's ability to spread the information obtained to the general public at large. Therefore, we find that the Appellant has again failed to meet Factor C of this test. Cf. Glen Milner, 26 DOE ¶ 80,147 at 80,649 (1996) (Factor C met where requester had had articles published in major newspapers and a New York Times reporter stated that the requested documents were newsworthy).(3) Because the meeting of Factor C is a pre-requisite for addressing Factor D (the significance of the contribution made to public understanding), Factor D need not be considered. Therefore, we find no reason to grant a fee waiver and overturn our earlier Rockefeller decision

With regard to the Appellant's final argument, the Appellant asserts that he made two additional information requests to DOE/AL in his December 5, 1998 letter to that office and that DOE/AL has failed to respond to these requests. We note that this Office does not have jurisdiction in cases where no appealable determination has been issued, as is the case here, and therefore we will not consider these issues. Where the department has failed to respond to requests in a timely manner, however, the Appellant does have the right to file a complaint with the appropriate federal district court. See 5 U.S.C. § 552(a)(4)(B), (6)(C). We have nevertheless discussed these two requests with DOE/AL and can give the Appellant some guidance.

In the first request, the Appellant stated that if his request for a fee waiver in connection with his August 4, 1998 request was denied again, he then wished to re-request all items mentioned in that previous request, in order to avail himself of another opportunity to show that he meets Factors C and D of the fee waiver test. As discussed above, the Appellant does not meet these factors and has had an adequate opportunity to show that he does meet them. His sole remaining remedy on the fee waiver issue is to proceed to federal court. We view the Appellant's December 5, 1998 request for all documents he previously requested in his August 4, 1998 request as purely a means for continuing to challenge the DOE's fee waiver determination and not in fact a new request for information. Thus, we believe that DOE/AL correctly refused to process that December 5, 1998 request.

In his other December 5, 1998 request, the Appellant sought all documents relating to his FOIA requests. DOE/AL has informed us that it will begin processing this request. See Record of Telephone Conversation between Dawn L. Goldstein and Terry Apodaca (December 29, 1998).

In conclusion, we find that it was not erroneous for DOE/AL to administratively close the Appellant's August 4, 1998 FOIA request. We also find no reason to overturn our earlier Rockefeller decision. Further, we believe that DOE/AL correctly refused to begin processing the Appellant's new request for all documents he previously requested on August 4, 1998. Finally, DOE/AL has informed us that it will begin processing the Appellant's new FOIA request for documents relating to his FOIA requests. However, because OHA has no jurisdiction over those latter two issues, we will dismiss that portion of the Appeal. Consequently, the Appellant's appeal is being dismissed in part and denied in part.

It Is Therefore Ordered That:

(1) The Appeal filed by Tod N. Rockefeller on December 22, 1998, Case Number VFA-0468, is hereby dismissed to the extent set forth in paragraph (2) below and is denied in all other respects.

(2) The portions of the Appeal filed in Case No. VFA-0468 concerning the Albuquerque Operations Office's failure to begin processing the two December 5, 1998 requests are hereby dismissed.

(3) This is a final order of the Department of Energy of 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: January 21, 1999

(1) 1/ This regulation provides the following: "[w]hen the Authorizing Official has denied a request for records in whole or in part or has responded that there are no documents responsive to the request consistent with Section 1004.4(d), or when the Freedom of Information Officer has denied a request for waiver of fees consistent with Section 1004.9, the requester may, within 30 calendar days of its receipt, appeal the determination to the Office of Hearings and Appeals."

(2)We further note that DOE/AL had requested from the Appellant a partial advance payment of $1,500 in order to process the request. The payment was never made. See Record of Telephone Conversation between Dawn L. Goldstein, OHA Staff Attorney and Terry Apodaca, DOE/AL (December 30, 1998). This is a separate, equally valid reason for DOE/AL to administratively close the Appellant's August 4, 1998 request. Moreover, if the Appellant wishes to have the request reopened, DOE/AL would be entitled to obtain "an advance payment of an amount up to the full estimated charges" because the estimated fees in this case were greater than $250 and the Appellant apparently has no history of payment with the DOE. 10 C.F.R. § 1004.9(b)(8)(i).

(3) 3/ The Appellant also complained that DOE/AL failed to consider a Department of Labor whistleblower complaint that he had filed and considers relevant to his fee waiver request. We have examined this complaint and find that it contains no information relevant to the Appellant's ability to meet Factor C.