Case No. VFA-0575, 27 DOE ¶ 80,279
May 26, 2000
DECISION AND ORDER
OF THE DEPARTMENT OF ENERGY
Appeal
Name of Appellant:Edward A. Slavin, Jr.
Date of Filing:April 24, 2000
Case Number: VFA-0575
Edward A. Slavin, Jr., files this Appeal pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552.(1) Slavin’s Appeal concerns a decision of the Department of Energy's Oak Ridge Operations Office (ORO) refusing to expedite the processing of his requests. As explained below, we will deny the Appeal.
Background
Between March 19 and March 31, 2000, Slavin filed six FOIA requests with ORO. He asked that each request be given expedited processing, under the provisions of 5 U.S.C. § 552(a)(6)(E). Rather than expediting Slavin’s requests, ORO responded that they would be processed on a “documents first in, documents first out basis.” Slavin then filed the present Appeal.
A highly condensed version of each request that Slavin filed is listed below, with the number assigned to it by ORO.
Request #00-233: various documents, including all documents bearing Slavin’s name, and all documents relating to activities of various DOE officials, to the selection of and billing by various contractors, to the handling of whistleblower cases, and to affirmative action by legal contractors of ORO.
Request #00-239: documents relating to Millard Day, said by Slavin to be a party in a whistleblower case before the Department of Labor, including all documents bearing Day’s
name, personnel files of persons involved in the case, and documents relating to legal preparation by DOE attorneys.
Request #00-245: documents relating to an accident at ORO’s Y- 12 plant on December 8, 1998, particularly concerning individuals involved with the accident and disciplinary actions taken against them.
Request #00-249: all documents mentioning Linda Gass.
Request #00-250: all documents mentioning the Anderson County, Tennessee, executive.
Request #00-251: documents relating to hiring data and personnel records for attorneys at ORO, including all personnel, security, and health files and files concerning hiring of attorneys.
Analysis
Under the FOIA, an agency must respond to a request for information within twenty working days. 5 U.S.C. § 552(a)(6)(A)(i). As a general rule, agencies process FOIA requests on a "first-in, first-out" basis, according to the order in which they are received. Open America v. Watergate Special Prosecution Force, 547 F.2d 605, 614-16 (D.C. Cir. 1976). The FOIA also provides, however, for expedited processing of requests in certain cases. 5 U.S.C. § 552(a)(6)(E).
Granting one requester expedited processing gives him a preference over previous requesters, by moving his request “up the line” and delaying processing of other requests. Exner v. FBI, 542 F. 2d 1121 (1976). Therefore, the FOIA provides that expedited processing is to be provided only when the requester demonstrates “compelling need,” or when otherwise determined by the agency. 5 U.S.C. § 552(a)(6)(E)(i).
“Compelling need,” as defined in the FOIA, arises in either of two situations. The first is when failure to obtain requested records on an expedited basis could reasonably be expected to pose an imminent threat to the life or physical safety of an individual. The second situation occurs when the requester, who is primarily engaged in disseminating information, has an urgency to inform the public about an activity of the Federal Government. 5 U.S.C. § 552(a)(6)(E)(v).
Slavin has failed to demonstrated a compelling need for expediting any of his six requests. In his submissions requesting the information, he implies that expediting his requests will save lives. He claims in each request that “due to the chilling effects of on-going anti-whistleblower harassment upon the workforce, employees are reluctant to engage in protected activity under environmental and occupational safety laws which can needlessly cause the loss of human lives in accidents and exposures.”
We are firmly committed to providing expedited processing of FOIA requests where there is a reasonable expectation that failure to do so would jeopardize the life or physical safety of an individual. Slavin, however, has provided us with no reason to believe that release of the documents he has requested will accomplish those goals. There is no discernible connection between any of the extensive set of documents requested by Slavin and any individual’s health or physical safety. We have only Slavin’s assertion that release of the documents will somehow prevent the “loss of human lives in accidents and exposures.” In the absence of some other urgency, however, a requester “cannot meet his burden by merely making a naked assertion ... in order to accelerate his FOIA processing." Edmond v. U.S. Attorney, 959 F. Supp. 1, 6 (D.D.C. 1997) (Edmond). Thus, we find that Slavin’s unsupported assertion is insufficient to establish a need for expedited processing.
Slavin also implies in his requests that he meets the second criterion for expedited processing – that he is a person primarily engaged in disseminating information, and has an urgency to inform the public about an activity of the Federal Government. He states that, among other accomplishments, he was the editor of a newspaper from 1981 to 1983 and was recommended for a Pulitzer Prize, and has published a book and seven articles in American Bar Association Publications. He further claims to have the “ability to inform the people of Anderson County and the world regarding Oak Ridge pollution.” Despite Slavin’s past occupations, however, he is currently an attorney and not primarily engaged in disseminating information. In connection with this FOIA request, he has a client who is employing him to perform services of a legal nature. Moreover, he has not shown that there is any urgency to inform the public about the contents of the documents he is requesting. We therefore find no basis in Slavin’s submissions for expediting the processing of his requests.(2)
Conclusion
Slavin has not shown the exceptional need or urgency that would warrant his being given preferential treatment by expediting the processing of his requests. Therefore, we find that ORO should respond to his requests in a manner consistent with applicable FOIA statutory and regulatory provisions. Sangre de Cristo Animal Protection, Inc., 25 DOE ¶ 80,121 (1995).
It is Therefore Ordered That:
(1) The Freedom of Information Act Appeal filed by Edward A. Slavin, Jr. (Case No. VFA-0575) is hereby denied.
(2) 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)(6)(E)(iii). 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: May 26, 2000
(1) The Freedom of Information Act is implemented by the Department of Energy at 10 C.F.R. Part 1004.
(2) Slavin raised an additional ground for expedited processing in his Appeal. At the time the Appeal was filed, Slavin was the attorney of record for Linda Gass, a complainant in a whistleblower case before the Office of Hearings and Appeals (Case No. VWA-0028). Slavin stated that expedited processing was required because of the “the urgency of obtaining information in a timely manner,” since “Gass’s [whistleblower] hearing ... currently scheduled for one month from now – is being obstructed due to ... [DOE’s] obstreperous delays...” While this FOIA Appeal was under consideration, Gass filed her whistleblower complaint with the Department of Labor, and her complaint with the Department of Energy was dismissed. Since there is no longer a need to expedite these documents for the DOE hearing, we will give no consideration to this argument for expediting.