Case No. VFA-0539, 27 DOE ¶ 80,250

December 23, 1999

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: STAND, Inc.

Date of Filing: November 19, 1999

Case Number: VFA-0539

On November 19, 1999, STAND, Inc. (Serious Texans Against Nuclear Dumping) filed an Appeal from a determination issued to it in response to a request for documents submitted 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. The determination was issued on October 28, 1999 by the Albuquerque Operations Office (AL). This Appeal, if granted, would require that AL release responsive documents and grant STAND a fee waiver.

I. Background

STAND is a nonprofit, tax-exempt regional environmental and public policy citizens’ group. On May 6, 1999, STAND submitted a FOIA request to AL for a copy of all news releases from DOE’s Amarillo Area Office and its contractors between January 1, 1951 and May 3, 1999. In that letter, STAND also requested that AL waive all processing fees. Letter from STAND to FOIA Officer, AL (May 6, 1999). AL then informed STAND that without specific reasons why a fee waiver would be appropriate, AL was unable to make a determination on waiving fees for the request. Letter from AL to STAND (July 27, 1999). AL explained that the search costs would be substantial, due to the lengthy search required and the many pages of responsive records that could be released. Id. STAND responded with further information to justify the request for a fee waiver. Letter from STAND to AL (August 6, 1999) (Justification Letter). On September 30, 1999, AL denied the fee waiver, stating that the request was not likely to contribute significantly to public understanding of the operations and activities of the government. According to AL, the media had decided which releases were in the public interest, and had already published stories about those releases. Letter from AL to STAND (September 30, 1999) (Determination). AL told STAND that it could not process the request further without an agreement to pay processing costs. (1) STAND did not reply,

and AL closed the file. Letter from AL to STAND (October 28, 1999). On November 19, 1999, STAND filed this Appeal requesting that AL waive all processing fees on its FOIA request. Letter from STAND to Director, OHA (November 19, 1999) (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, it provides a two-pronged test for agencies to use in considering whether to waive fees. The two prongs can be summarized as the “public interest prong” and the “commercial interest” prong. See Ruth Towle Murphy, 27 DOE ¶ 80,173 (1998) (Murphy). 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. 5 U.S.C. § 552 (a)(4)(A)(iii). The commercial interest prong asks whether the request is primarily in the commercial interest of the requester. Id. The requester bears the burden of satisfying the two-prong test for a fee waiver. See Roderick Ott, 26 DOE ¶ 80,187 (1997) (Ott).

In order to determine whether the requester meets the first prong (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) the DOE considers four factors:

(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. See Information Focus on Energy, 26 DOE ¶ 80,199 (1997).

In denying STAND’s fee waiver request, the AL FOIA Officer wrote:

Also, I have determined that your request is not likely to contribute significantly to public understanding of the operation and activities of the government. News releases are given to the local press and those “experts” decide what is in the public interest in Amarillo and print what is of interest; thus putting the majority of the information requested in the public domain. . . . The information in your letter [of August 6, 1999] does not convince me that other news release information not in the public domain already would contribute significantly to public understanding of the operations or activities of the government; therefore, your request does not meet the requirements for a fee waiver.

Determination Letter at 1. Thus, AL concluded that STAND failed to satisfy Factor D, and based its determination on that conclusion. In addition, in response to OHA’s request for comments on the Appeal, the Office of the Chief Counsel at AL concurred in the FOIA Officer’s denial and concluded that STAND did not provide sufficient justification to satisfy any of the factors. Memorandum from Jake Chavez, AL Office of Chief Counsel, to AL FOIA Officer (December 8, 1999).

Factor A

STAND alleges that the requested information concerns activities of the federal government because the Pantex Nuclear Weapons Plant is a federal facility, even though it has been operated by independent contractors since 1951. Justification Letter at 1. According to STAND, Pantex is an integral part of the nation’s nuclear posture and national security strategy. We have reviewed copies of recent press releases, and find that they provide information about Pantex operations. The releases often contain quotes from Pantex executives and give the general public information about events and occurrences at the plant. AL argues that because the contractor has its own management and operating structure, press releases from the plant only describe activities of the contractor. We disagree. The plant is owned by a federal agency, and is considered part of the federal nuclear weapons complex. The general public views events occurring at Pantex and the other nuclear weapons plants as government activities and not merely the operations of a private company. Thus we find that STAND has satisfied the requirement of Factor A.

Factor B

The focus of this factor is on whether the information is already in the public domain or otherwise common knowledge among the general public. See Ott; Seehuus Associates, 23 DOE ¶ 80,180 (1994) (Seehuus). As we stated in Seehuus, “[i]f the information is already publicly available, release to the requester would not contribute to public understanding and a fee waiver may not be appropriate.” AL contends that the material has already been released, and is in the public domain. We acknowledge that the information in those recent releases that were chosen by the media for publication is in the public domain. Nonetheless, “the mere fact that particular records have been released to other requesters does not mean that the information contained in the records is readily available to the public.” Compare Carney v. Department of Justice, 19 F.3d 807, 815 (2d Cir. 1994) with Friends of the Coast Fork v. United States Dep’t of the Interior, 110 F.3d 53, 55 (9th Cir. 1997) (holding that availability in an agency’s public reading room does not necessarily justify denial of fee waiver). It is likely that the information contained in older press releases is not readily available to the interested public today. Therefore, we find that STAND has satisfied Factor B.

Factor C

This test requires us to consider whether the requested documents would contribute to the understanding of the subject by the public. Ott, 26 DOE at 80,780. To satisfy this factor, the requester must have the ability and intention to disseminate this information to the public. Id; see also Tod N. Rockefeller, 27 DOE ¶ 80,184 (1999); James L. Schwab, 22 DOE ¶ 80,133 (1992).

We find that STAND has provided sufficient evidence of its ability and intention to disseminate this information to the public. The organization provided us a copy of its newsletter, the Nuclear Examiner, which it states is distributed to over 2,000 people. STAND also holds news conferences several times a year, operates a library available to the public, gives interviews to local television stations and newspapers, and distributes press releases. Justification Letter at 2-3. STAND gave us copies of several print articles with references to the organization and its program director, copies of press releases, and an article written by its program director. Therefore, we find that STAND has satisfied the Factor C test.

Factor D

In order to satisfy the requirements of Factor D, the requested documents must contribute significantly to the public understanding of the operations and activities of the government. “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.” Ott, 26 DOE at 80,780 (quoting 1995 Justice Department Guide to the Freedom of Information Act 381 (1995)); see also Seehuus.

STAND argues that disclosure of the press releases is likely to contribute to an understanding of the operations and activities of the government. STAND contends that Pantex has a history of secrecy in its public affairs operations that has resulted in misperceptions of its safety record, environmental legacy, and impact on the region. Justification Letter at 2. According to STAND, “[a]nalysis of the Pantex public relations program, by focusing on its news releases over time, will substantially help people understand the validity of past and present statements concerning Pantex’s impacts on their health, safety, and the environment.” Id. STAND argues that the requested information is critical to raising the level of the public’s understanding of Pantex operations because STAND, as a “nuclear

watchdog group,” provides information to counterbalance the often inaccurate press releases emanating from Pantex. Justification Letter at 3. As an example, STAND refers to a 1998 Pantex press release stating that workers followed standard procedures during disassembly operations that resulted in a fire. Pantex Plant News Release, “Weapons, Personnel In No Danger During Small Fire” (Dec. 30, 1998). However, after an investigation, DOE recommended a penalty for violations of nuclear safety requirements relating to the fire. Pantex Plant News Release, “DOE Issues Preliminary Notice of Violation” (September 23, 1999). According to STAND, this demonstrates that press releases are often inaccurate, those inaccuracies may go uncorrected for a long period of time, and the public can be lulled into a false sense of security about the plant’s safety. STAND has requested copies of the original Pantex press releases in order to “dissolve public myths about past Pantex operations, and to further the debate on the role of federal agencies and their contractors in shaping public opinion.” Justification Letter at 3.

We find that the release of past press releases would significantly enhance the public’s level of understanding of the credibility of information that Pantex releases to the public. (2) As noted above, STAND has provided us with information that reflects serious inaccuracies in the press releases distributed by Pantex’s public affairs organization.(3) See also The Nuclear Examiner at 5 (June 1999) (Pantex redefined a public description of its plutonium pits). Moreover, the group has proven its commitment to providing the community with accurate information about the operations of the Pantex nuclear weapons plant. Therefore, we find that STAND has satisfied the test for Factor D.

Having determined that STAND has satisfied the regulatory fee waiver requirements discussed above, we find that STAND should be granted a fee waiver regarding its May 6, 1999 FOIA request.(4) Accordingly, we shall grant this Appeal.

It Is Therefore Ordered That:

(1) The Freedom of Information Act Appeal filed by STAND, Inc. on November 19, 1999 (Case Number VFA-0539) is hereby granted in part as set forth in Paragraph (2) below.

(2) The fees assessed for complying with STAND’s May 6, 1999 FOIA request shall be waived in full.

(3) This is a final order of the Department of Energy from which any aggrieved party may seek judicial review pursuant to 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: December 23, 1999

(1)AL has provided STAND with copies of recent (within the past two years) press releases. Memorandum from R. O’Dowd, AL Office of Chief Counsel, to C. Becknell, AL FOIA Officer (December 8, 1999).

(2)We reject AL’s argument that the press releases that were not published as news stories do not contain information in the public interest. Memorandum from Ron O’Dowd, AL to Carol Becknell, AL (December 9, 1999). There are many reasons that a newspaper could decide not to publish a story from a press release, and we have no evidence that those decisions are based on the public interest.

(3)Although conclusory statements will not support a fee waiver request, the regulations do not require that the requester provide a certain amount or particular type of information to justify the significance to the public of the information sought. See Pederson v. Resolution Trust Corporation, 847 F. Supp. 851, 855 (D.Colo. 1994) (quoting McClellan Ecological Seepage Situation v. Carlucci, 835 F.2d 1282, 1284 (9th Cir. 1987)).

(4)AL contends that the required search would be burdensome. However, the fee waiver standards do not permit consideration of these concerns with regard to whether a fee waiver should be granted to a requester. See Government Accountability Project, 25 DOE ¶ 80,203 at 80,762 n.2. Nonetheless, we strongly encourage STAND to honor its repeated offers to work with AL to narrow the scope of the search and reduce processing time and costs. Justification Letter at 1; Appeal at 4.