Barbara Schwarz, Case No. VFA-0623, November 17, 2000

Case No. VFA-0623, 28 DOE ¶ 80,126

November 17, 2000

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

APPEAL

Name of Petitioner: Barbara Schwarz

Date of Filing: October 20, 2000

Case Number: VFA-0623

Barbara Schwarz (Appellant) appeals from a determination of the FOI/Privacy Act Division of the Department of Energy (DOE) Headquarters (DOE/FOI) denying Appellant’s request for fee waiver, which she filed pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, and the DOE implementing regulations, 10 C.F.R. Part 1004. The FOIA requires federal agencies to release documents to the public upon request, but provides that, absent a waiver, requesters must pay applicable processing fees. 5 U.S.C. § 552(a)(4)(A)(i); 10 C.F.R. § 1004.9(a). This appeal, if granted, would waive the processing fees associated with Appellant’s FOIA request.

I. Background

On July 19, 2000, Appellant filed a FOIA request with the DOE/FOI. Appellant requested records indicating that the German government secretly (1) motivated the Cuban government to foster hostile relations with the United States; (2) implanted a Communist form of government in Cuba or any other Communist state; (3) invented Communism; and (4) controlled or controls the countries of the former Soviet Union, Korea, Vietnam, Cuba or China. Pursuant to 10 C.F.R. 1004.4(e), the DOE/FOI issued a letter to Appellant on August 23, 2000, which sought either an assurance to pay the fees associated with processing her request, or a request for fee waiver. On September 9, 2000, Appellant filed a request for fee waiver (Waiver Request).(1) That request was denied, and it is that denial which is the subject of this appeal.

Appellant based her Waiver Request on three main premises. First, Appellant stated that she is indigent and cannot afford to pay applicable search fees. Waiver Request at 1. Second, Appellant maintained that she requests the records for “personal” reasons, to be used as evidence that she was

abducted from the United States by the German government. Id. Third, Appellant asserted that she requests the records for “educational reasons as to the secret German Nazi infiltration of the U.S. government and other countries.” Waiver Request at 2. To that end, Appellant further asserted that she intends to distribute the information in the records to the public through use of the Internet. Id.

On October 5, 2000, the DOE/FOI denied Appellant’s Waiver Request, and, on October 20, 2000, Appellant appealed the denial with the Office of Hearings and Appeals. In her appeal, Appellant maintains that she is entitled to a fee waiver on substantially the same bases she set forth in her Waiver Request, as cited above, and makes several statements in support of the truth of her assertion that the “United States government is secretly infiltrated by German Nazi conspiracy.” Appeal letter at 1. Appellant further asserts she is entitled to two hours of free search time and 100 copies of documents at no charge (the initial processing fees), and appeals from the DOE/FOI’s alleged denial of the initial processing fees.

II. Applicable Legal Principles

The FOIA generally obligates requesters to pay processing fees, “except that the first 100 pages of reproduction and the first two hours of search time will be furnished without charge.” 5 U.S.C. § 552(a)(4)(A)(ii), 10 C.F.R. § 1004.9(a), (b)(4). Either an assurance of willingness to pay fees assessed in accordance with Section 1004.9, or a request for fee waiver, must be included in a FOIA request. The FOIA provides for a reduction or waiver of fees only if a requester satisfies his burden of showing that disclosure of the information (1) is in the public interest, because it is likely to contribute significantly to public understanding of the operations or activities of the government (the public interest prong); and (2) is not primarily in the commercial interest of the requester (the commercial interest prong). 5 U.S.C. § 552(a)(4)(A)(iii).

In order to satisfy the public interest prong, the DOE requires that a requester show each of the following:

(A) The subject of the requested records concerns “the operations or activities of the government” (Factor A);

(B) Disclosure of the requested records is “likely to contribute” to an understanding of government operations or activities (Factor B);

(C) Disclosure of the requested records would contribute to an understanding of the subject by the general public (Factor C); and

(D) Disclosure of the requested records is likely to contribute “significantly” to public understanding of government operations or activities (Factor D).

10 C.F.R. § 1004.9(a)(8)(i).

If a requester satisfies the four factors of the public interest prong, he must then satisfy the commercial interest prong by showing that disclosure of the information is not primarily in his commercial interest. 10 C.F.R. § 1004.9(a)(8)(ii). Administrative appeals of fee waiver denials generally are reviewed de novo. See Tod N. Rockefeller, 27 DOE ¶ 80,167 (September 29, 1998).

In denying Appellant’s Waiver Request, the Director of the DOE/FOI found that Appellant failed to satisfy each element of the public interest prong. We agree. After performing a de novo review of the merits of Appellant’s fee Waiver Request, we find that disclosure is not in the public interest and, therefore, Appellant should not be granted a fee waiver.

III. Analysis

Factor A under the public interest prong requires that the requested records be sought for their informative value with respect to specifically identifiable government operations or activities. See Van Fripp v. Parks, No. 97-0159, slip op. at 10, (D.D.C. Mar. 16, 2000) (characterizing request as “fishing expedition that does not relate to defined operations or activities of the government”) (Van Fripp); Atkin v. EEOC, No. 91-2508, slip op. at 27-28 (D.N.J. Dec. 4, 1992) (finding requested list of agency attorneys and their bar affiliations “clearly does not concern idenifiable government activities or operations”). A request for access to records for their intrinsic informational content alone will not entitle one to a fee waiver. See Carney v. United States Dep’t of Justice, 19 F.3d 807, 814 (2d Cir. 1994) (stating subject matter of information sought relevant to consideration of fee waiver) (Carney).

In this case, records indicating that the German government secretly controls or controlled certain governments might have intrinsic informative value and be of general interest. However, Appellant has failed to show that such records have informative value with respect to a specifically identifiable operation or activity of the United States government. Appellant’s Waiver Request and appeal letter are laden with denouncements of Nazi Germany and personal attestations as to the reality of discrete, worldwide German influence, but they do not address the issue relevant to a FOIA fee waiver determination, namely, whether the information Appellant seeks relates to or will shed light upon a particular aspect of government conduct. Because Appellant has failed to show that the requested records have informative value with respect to specifically identifiable government operations or activities, Appellant has failed to satisfy Factor A.

Under Factor B, disclosure of the requested information must be likely to contribute to the public’s understanding of specifically identifiable government operations or activities, i.e., the records must be meaningfully informative in relation to the subject matter of the request. See Carney, 19 F.3d at 814. Because, as explained with regard to Factor A, there is no evidence linking the subject matter of Appellant’s request to a specifically identifiable government operation or activity, disclosure of the requested information is not likely to contribute to or enhance public understanding of a specific government operation or activity. Thus, Appellant has failed to satisfy Factor B.

Factor C requires that the requested material contribute to the general public’s understanding of the subject matter. Disclosure must contribute to the understanding of the public at large, as opposed to the individual understanding of the requester or a narrow segment of interested persons. Schrecker v. United States Dep’t of Justice, 970 F. Supp. 49, 50 (D.D.C. 1997). Thus, the requester must have the ability and intention to disseminate the requested information to the public. See Larson v. Central Intelligence Agency, 843 F.2d 1481, 1483 & n.5 (D.C. Cir. 1988) (holding inability to disseminate information alone is sufficient basis for denying fee Waiver Request); Donald R. Patterson, 28 DOE ¶ 80,107 (2000) (denying fee waiver based on requester’s failure to satisfy Factor C). Furthermore, passively making information available to anyone who might access it does not satisfy Factor C, because merely placing data in the public domain without analysis or explanation will not contribute to the public’s understanding of the subject matter. See Van Fripp, slip op. at 11-12 (finding “it is plaintiff’s burden to disseminate the requested information to the public and not, merely, to make it available”); Donald R. Patterson, supra (citing Van Fripp, supra).

Although Appellant asserts that she intends to distribute the requested information on the Internet, we have previously held that posting information on a website is a passive method of dissemination and insufficient for purposes of Factor C. See Donald R. Patterson, supra (“Patterson’s plan to post information on a website . . . is a passive method of placing information in the public domain, compared to, for instance, distributing the material in a newsletter or journal.”). Because Appellant has set forth no evidence that she will use a means of distribution other than the Internet, she has not demonstrated the ability and intention to disseminate the requested information to the public at large. Thus, Appellant has failed to satisfy Factor C.

Under Factor D, the last element of the public interest prong, disclosure must contribute “significantly” to public understanding of government operations or activities. Because, as explained with regard to Factor A, Appellant has not shown that the requested information relates to specifically identifiable government operations or activities, release of the requested information will not significantly contribute to public understanding of government operations or activities. Thus, Appellant has failed to satisfy Factor D.

The foregoing analysis reveals that Appellant has not satisfied the public interest prong, and on that basis alone, should not be granted a fee waiver. It is therefore unnecessary to proceed to analysis of the commercial interest prong.

In addition, to the extent Appellant claims entitlement to a fee waiver because she is indigent, and because she seeks the requested information for personal reasons, we note that neither basis is a proper consideration under the FOIA for purposes of making a fee waiver determination. See Ely v. United States Postal Serv., 753 F.2d 163, 165 (D.C. Cir. 1985) (“Congress rejected a fee waiver provision for indigents.”); McClain v. United States Dep’t of Justice, 13 F.3d 220, 220-21 (7th Cir. 1993) (finding fee waiver inappropriate where requester sought to serve private rather than public interest).

Finally, we need not address Appellant’s assertion that the DOE/FOI denied her two free hours of search time and 100 copies free of charge (the initial processing fees). It appears that the October 5, 2000 determination from the DOE/FOI denied only Appellant’s fee Waiver Request and not the initial processing fees provided for by 5 U.S.C. § 552(a)(4)(A)(ii), 10 C.F.R. § 1004.9(a), (b)(4) (quoted supra).

IV. Conclusion

Based on the foregoing, Appellant has failed to show that disclosure of the requested information is likely to contribute significantly to public understanding of the operations or activities of the government. Therefore, her appeal will be denied.

It Is Therefore Ordered That:

(1) The Freedom of Information Act appeal filed by Barbara Schwarz on October 20, 2000, OHA Case Number VFA-0623, 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 the provisions of 5 U.S.C. § 552(a)(4)(B). Judicial review may be sought in the district where 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 Appeal

Date: November 17, 2000

(1)Appellant also appealed the DOE’s August 23, 2000 fee letter. However, on September 28, 2000, the DOE Office of Hearings and Appeals dismissed Appellant’s appeal for lack of jurisdiction.