Case No. VFA-0589, 28 DOE ¶ 80,107
August 3, 2000
DECISION AND ORDER
OF THE DEPARTMENT OF ENERGY
Appeal
Name of Petitioner: Donald R. Patterson
Date of Filing: June 23, 2000
Case Number: VFA-0589
On June 23, 2000, Donald R. Patterson (Patterson) filed an Appeal from a determination issued to him 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 May 23, 2000 by the Chicago Operations Office (DOE/CO). This Appeal, if granted, would require that DOE/CO release responsive documents and grant Patterson a fee waiver.
I. Background
On May 10, 2000, Patterson submitted a FOIA request to DOE/CO for a copy of “all government owned records relating to any alleged or actual incidents of reprisal against any [Argonne National Laboratory] ANL employees for 'whistleblowing.’” Letter from Patterson to Linda Rohde, FOI Officer, DOE/CO (May 10, 1000) (Request). Patterson further stated that he sought the information for personal use, and requested a fee waiver for the request. In the Request, Patterson addressed four factors that DOE/CO had previously advised him would be considered in granting a fee waiver. First, he explained that his request concerned the operations and activities of the government, since he sought information about DOE and a DOE contractor, ANL. Second, he wrote that the information would contribute to an understanding of how DOE investigates charges of whistleblowing and complaints of contractor retaliation against the whistleblower. Third, according to Patterson, the information would contribute to an understanding by the general public of the subject matter of the request. He states that he planned to present the information to elected representatives and testify at congressional hearings, if provided the opportunity. Request at 3. Finally, Patterson alleged that the disclosure was likely to contribute significantly to public understanding of government operations because “public understanding of the means that government takes to assure the safety of contractor employees is of utmost significance.” Id. at 3. Patterson further stated that he would disseminate the information to the general public by submitting it to organizations dedicated to publicizing retaliation by DOE against DOE contractor employees. He stated that he intended to encourage the groups to post the documents on the Internet, and if they did not, he would create his own web site and post the documents there. Id. at 4-5.
On May 23, 2000, DOE/CO issued a determination letter, and denied Patterson’s request for a fee waiver. DOE/CO indicated that it denied the request because Patterson did not demonstrate the capability of widely disseminating this information and because he failed to demonstrate any specialized knowledge that could enable him to effectively convey the information to others. Letter from DOE/CO to Patterson (May 23, 2000) (Determination). On May 30, 2000, Patterson wrote to DOE/CO requesting further explanations of its denial. DOE/CO sent Patterson an electronic mail message advising him to review the determination letter, insisting that the determination letter adequately explained the reasons for denying his request. On June 23, 2000, Patterson filed this Appeal. Letter from Patterson to Director, OHA (June 23, 2000) (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 will 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 Patterson’s fee waiver request, the DOE/CO FOIA Officer opined that Patterson had not demonstrated a capability of widely disseminating this information, and that he had failed to demonstrate any specialized knowledge that would enable him to effectively convey this information to others. Determination at 1. Thus, DOE/CO concluded that Patterson failed to satisfy factor C, and based its determination on that conclusion. After reviewing Patterson’s submission and the relevant case law, we find that DOE/CO properly denied Patterson’s request for a fee waiver.
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 STAND, Inc., 27 DOE ¶ 80,250 (1999) (STAND); Tod N. Rockefeller, 27 DOE ¶ 80,184 (1999); James L. Schwab, 22 DOE ¶ 80,133 (1992).
Patterson states that he will use the disclosed information as “the basis for written and verbal communications with other members of the public on the topic of the government’s response to allegations of retaliation against ?whistleblowers’ . . . .” Request at 3. He plans to present the information to elected representatives, members of Congress ( if provided the opportunity to testify at hearings), and public interest organizations, encouraging them to post the documents on their web sites. Id. at 4. Further, Patterson indicates that he would create his own website if the public interest organizations were not receptive to the information he offered. Id.
We find that Patterson has not provided sufficient evidence of his ability and intention to disseminate this information to the public. Courts have previously stated that passively making information available to anyone who might seek access to it does not meet the burden of demonstrating that the material will be disseminated to the public. See Van Fripp v. Parks, No. 97-0159, slip op. at 12 (D.D.C. Mar. 16, 2000) (emphasizing that placement in library amounts to a passive method of distribution that does not entitle requester to a fee waiver); Klamath Water Users Protective Ass’n v. United States Dep’t of the Interior, No. 96-3077, slip op. at 47 (D.Or. June 19, 1997) (finding placement in library insufficient to merit a fee waiver). Merely placing the data in the public domain without analysis or explanation does not contribute to the public’s understanding. S.A. Ludsin & Co. v. SBA, 1997 U.S. Dist. LEXIS 8617, at *16. Patterson’s plan to post information on a website or submit that information to a public interest group is a passive method of placing the information in the public domain, compared to, for instance, distributing the material in a newsletter or journal. See, e.g., STAND, 27 DOE at 80,888. In addition, we have stated in a previous case involving the same requester that there is no indication that Patterson’s elected representatives would be interested in conveying the information to a broad audience. See Donald Patterson, 27 DOE ¶ 80,267 (2000) (Patterson). Therefore, we find that Patterson has not satisfied the factor C test. The inability to disseminate information, by itself, is sufficient basis for denying a fee waiver request. See Patterson, 27 DOE at 80,927 (citing Larson v. CIA, 843 F.2d 1481, 1483 (D.C. Cir. 1988)). Accordingly, we shall deny this Appeal.
It Is Therefore Ordered That:
(1) The Freedom of Information Act Appeal filed by Donald Patterson on June 23, 2000, OHA Case Number VFA-0589, 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)(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: August 3, 2000