Case No. VFA-0562, 27 DOE ¶ 80,267

March 23, 2000

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Donald R. Patterson

Date of Filing: February 24, 2000

Case Number: VFA-0562

This Decision and Order concerns an Appeal that was filed by Donald R. Patterson from a determination issued to him by the Department of Energy’s (DOE) Chicago Operations Office. In this determination, the Chicago Office denied Mr. Patterson’s request for a waiver of fees with regard to a request that he filed under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004. In his Appeal, Mr. Patterson asks that we grant his request for a fee waiver.

The FOIA requires that federal agencies generally release documents to the public upon request. The Act also provides for the assessment of fees for the processing of requests for documents. 5 U.S.C. § 552(a)(4)(A)(I); see also 10 C.F.R. § 1004.9(a). However, the DOE is authorized to grant a full or partial waiver of applicable fees in certain circumstances.

I. Background

In his FOIA request, Mr. Patterson sought access to information relating to the investigation and resolution of allegations of reprisals taken against employees of the Argonne National Laboratory (Argonne) for reporting safety and health concerns; to modifications to the software program of Argonne’s Advance Photon Source Access Control and Interlock System (APS); to an article which describes how to use the APS computer network and the Internet to search for jobs outside of Argonne; to an annual performance appraisal of Mr. Patterson for the period from June 1, 1995 through May 31, 1996; and to e-mail communications concerning daily meetings called by a named individual to check on the progress of APS technicians. Mr. Patterson further requested that all applicable fees arising from the processing of his request be waived. In support of this request, Mr. Patterson stated that release of this information would contribute to the public’s understanding of government operations or activities. He said that the “disclosed information, if deemed to be appropriate, will be used as the basis for written and verbal communications with other members of the public” on the topics of how the government: (i) responds to allegations of retaliation against whistleblowers, (ii) controls modifications to safety equipment; (iii) implements its computer use policies; and (iv) oversees the work output of its contractor employees. January 16, 2000 Letter from Mr. Patterson to Linda Rohde, Chicago Operations Office, at 4. In a letter dated February 4, 2000,

the Chicago Office denied Mr. Patterson’s fee waiver request based on its findings that “(1) any benefit to the general public is outweighed by a personal benefit to [Mr. Patterson]; and (2) [Mr. Patterson has] not described [his] expertise in the subject area to effectively convey the information; and the specific method which will be utilized by [Mr. Patterson] to disseminate the information to the general public.”

In his Appeal, Mr. Patterson argues that he will not benefit personally from the requested information. Instead, he contends that he will present the information to his elected representatives in an attempt to convince them that the current whistleblower laws and DOE policies are ineffective. He adds that, if requested, he will “testify at congressional hearings to inform all of Congress and the general public” about his concerns. Appeal at 3.

II. Analysis

The DOE will grant a full or partial waiver of applicable fees if disclosure of the information sought in a FOIA request (i) is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government, and (ii) is not primarily in the commercial interest of the requester. 5 U.S.C. § 552(a)(4)(A)(iii). The burden of satisfying this two- prong test is on the requester. Larson v. Central Intelligence Agency, 843 F.2d 1481, 1483 (D.C. Cir. 1988) (per curiam). The DOE has implemented the statutory standard for fee waivers in its FOIA regulations. See 10 C.F.R. § 1004.9(a)(8). Those regulations set forth the following four factors that an agency must consider to determine whether the requester has met the first statutory fee waiver condition, 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”;

(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; 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.

10 C.F.R. § 1004.9(a)(8)(i). Finally, in addition to satisfying these four factors, the DOE must also find that disclosure of the requested information would not be primarily in the commercial interest of the requester. 10 C.F.R. § 1004.9(a)(8)(ii). In making this determination, the DOE must, in most

cases, consider whether the requester has a commercial interest that would be furthered by the requested disclosure, and, if so, whether that commercial interest outweighs the public interest in disclosure.

After reviewing the arguments raised by Mr. Patterson, we find that he has failed to demonstrate that release of the requested information is in the public interest because it would be likely to contribute significantly to public understanding of the activities of the government. Specifically, we find Factor (C), the contribution to an understanding by the general public of the subject likely to result from disclosure, to be dispositive of this matter. In previous cases, we have determined that in order to receive a waiver of fees, a requester must demonstrate both the intent, and the means, to disseminate the requested information to the general public. See, e.g., James L. Schwab, 22 DOE ¶ 80,133 (1992). The federal courts have held that in considering whether a requester satisfies this criterion, 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). 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). See also Ruth Towle Murphy, 27 DOE ¶ 80,173 (1998) (Murphy).

In this case, Mr. Patterson has not demonstrated that he is capable of achieving the type of wide dissemination of information needed to qualify for a fee waiver. His statements that the information will form the basis of communications with an unspecified number of “other members of the public,” and with his elected representatives, do not suggest that he will be able to disseminate the information to a reasonably broad audience of interested persons. See, e.g., Crooker v. Department of the Army, 577 F. Supp. 1220, 1223 (D.D.C. 1984) (rejecting fee waiver under previous standard for information of interest to a small segment of the scientific community); Fazzini v. United States Department of Justice, No. 90 C 3303, slip op. at 12 (N.D. Ill. May 2, 1991) (requester cannot establish a public benefit merely by alleging that he has corresponded with members of the media and intends to share the requested information with them). See also Murphy (doctoral student who intends to include requested information in thesis has not demonstrated ability to disseminate to a reasonably broad academic audience); Tod N. Rockefeller, 27 DOE ¶ 80,167 (1998) (stated intention to share information with the general public insufficient to show ability to achieve meaningful dissemination). While it is possible that Mr. Patterson’s elected representatives could convey information of the type he requested to a broader audience, there is no indication that they would be interested in doing so, and Mr. Patterson’s prospects of presenting the requested data and other information at any type of congressional hearing are, at best, speculative.

Furthermore, Mr. Patterson has not indicated that he has the technical expertise needed to make the requested information understandable to a significant portion of the public. A portion of his request is for technical information concerning modifications to the APS software. Mr. Patterson has not described his qualifications in this area, and has therefore failed to demonstrate an ability to effectively convey this information to others. See, e.g., McClellan Ecological Seepage Situation v. Carlucci, 835 F. 2d 1282 (9th Cir. 1987).

For these reasons, we find that disclosure of the requested information to Mr. Patterson is unlikely to contribute significantly to public understanding of government operations or activities and is therefore not in the public interest. We conclude that the Chicago Office correctly denied his request for a fee waiver. (1)

It Is Therefore Ordered That:

(1) The Appeal filed by Donald R. Patterson in Case No. VFA-0562 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: March 23, 2000

(1)In finding that any benefit to the general public would be outweighed by a personal benefit to Mr. Patterson, it appears that the Chicago Office incorrectly applied the second requirement for a fee waiver. As previously stated, that requirement is that release of the information not be primarily in the commercial interest of the requester. However, because Mr. Patterson has not documented that release of the information is in the public interest, we need not address the issue of whether such a release would be primarily in his commercial interest.