R.E.V. Engineering Services, Case No. VFA-0664, April 20, 2001

Case No. VFA-0664, 28 DOE ¶ 80,165

April 20, 2001

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: R.E.V. Engineering Services

Date of Filing: March 26, 2001

Case Number: VFA-0664

On March 26, 2001, R.E.V. Engineering Services (the Appellant) filed an Appeal from a partial determination issued to it on March 8, 2001, by the Rocky Flats Field Office (Rocky Flats) of the Department of Energy (DOE) under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004. The Appellant contends that Rocky Flats has failed to: (1) acknowledge or respond to its FOIA request in a timely fashion, (2) conduct an adequate search for the requested document, (3) adequately explain or justify its determination, (4) provide for an adequate segregation of nonexempt information, and (5) properly classify it in the fee category which only requires payment of search fees, and (6) grant its request for a fee waiver.

By letter dated July 11, 2000, the Appellant filed a FOIA request with Rocky Flats seeking a copy of a document that is commonly known as the “1999 SSSP." On November 30, 2000, Rocky Flats informed the Appellant that the SSSP is currently a classified document and that the DOE would conduct a two stage review of the document in accordance with the DOE classification regulations.

On December 11, 2000, the Appellant filed an Appeal in which it alleged that Rocky Flats had (1) failed to acknowledge or respond to its FOIA request within the time required by law, and (2) failed to conduct an adequate search for an unclassified, electronic version of the 1999 SSSP. On January 10, 2001, the Office of Hearings and Appeals (OHA) issued a decision and order adjudicating these two issues. R.E.V. Engineering Services, 28 DOE ¶ 80,135 (2001) (REV I). In that opinion, we found that the portion of the Appeal that was based on the failure to process a FOIA request within the time specified by law must be dismissed because OHA does not have jurisdiction to decide such an issue. To this end, we stated:

Section 1004.8(a) has been construed to confer jurisdiction on OHA only when an Authorizing Official has issued a determination that (1) denies a request for records, (2) states there are no records responsive to the FOIA request, or (3) denies a request for a waiver of fees. Suffolk County, 17 DOE ¶ 80,111 at 80,524 (1988). OHA has consistently held that Section 1004.8(a) does not confer jurisdiction when the requester has not received an initial determination from an Authorizing Official, or when an appeal is based on the agency’s failure to process a FOIA within the time specified by law. John H. Hnatio, 13 DOE ¶ 80,119 at 80,566 (1985) (dismissing appeal because no determination issued); Tulsa Tribune, 11 DOE ¶ 80,161 at 80,741 (1984) (no administrative remedy for agency's non-compliance with a timeliness requirement). Accordingly, the portion of the Appeal that deals with the agency’s failure to process a FOIA request within the time specified by law must be dismissed.

REV I, 28 DOE at 80,581. The Appellant has raised this same issue once again, and once again we will dismiss the portion of the present Appeal that merely reiterates the claim that Rocky Flats had not responded to its FOIA request in a timely manner.

The Appellant also reiterates the claim, made in its previous appeal, that Rocky Flats’ search for responsive documents was inadequate. We previously considered this contention in REV I. In that decision we found that: “Given the facts presented to us, we find that Rocky Flats conducted an adequate search which was reasonably calculated to discover an unclassified version of the 1999 SSSP. Therefore, we must deny this part of the Firm’s Appeal.” REV I, 28 DOE at 80,582. Since the Appellant has not presented any new evidence or compelling arguments concerning Rocky Flats’ search for responsive documents, we will not reconsider our previous determination in REV I. Accordingly that portion of the present Appeal challenging the adequacy of the search by Rocky Flats will be dismissed.

The present Appeal also contends that Rocky Flats failed to adequately segregate non-exempt information from exempt information. However, and as the Appellant is well aware, the DOE has yet to make a determination concerning the SSSP’s release. As we have discussed above, OHA’s FOIA appeal jurisdiction exists only when an Authorizing Official has issued an actual determination on an issue. Until an Authorizing Official has issued a determination on an issue, that issue is not ripe for review by this office. Accordingly, we are dismissing that portion of the present Appeal challenging the adequacy of segregation by Rocky Flats.

The only currently justiciable issues raised by the Appellant concern Rocky Flats’ fee determinations. The FOIA generally requires federal agencies to release documents to the public upon request, but provides that, absent a fee waiver, requesters must pay applicable processing fees. 5 U.S.C. § 552(a)(4)(A)(i); 10 C.F.R. § 1004.9(a). The processing fees charged to a requester depend upon the nature of the request. The FOIA sets forth 3 categories of request for this purpose at 5 U.S.C. § 552(a)(4)(A)(ii). Depending on the identity of the requester and their intended use of the requested information, 5 U.S.C. § 552(a)(4)(A)(ii) provides for the charging of fees for: (i) document duplication alone for an “educational institution” or “representative of the news media,” (ii) search time, duplication, and review time, where the request “appears to be for commercial use”, and (iii) search time and duplication for all other requesters. The DOE FOIA regulations implement this provision at 10 C.F.R. § 1004.9.

Rocky Flats, correctly noting that the Appellant is a commercial concern, classified the Appellant’s request as a “commercial use” request as defined in 5 U.S.C. § 552(a)(4)(A)(ii)(I). However, Rocky Flats determination is apparently based upon its reasoning that since the Appellant is a commercial concern, it seeks disclosure of the information for commercial use. This is not necessary true. It is conceivable that a commercial requester might make non-commercial use of information disclosed to it under the FOIA. Accordingly, we are remanding this portion of the Appeal to Rocky Flats. On remand, Rocky Flats must either re-categorize the request or explain why it has determined that the information was requested for commercial use.

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 (1998).

The FOIA and DOE’s FOIA regulations require that the agency provide the requester with a written determination notifying the requester of the results of a fee waiver determination. 5 U.S.C. § 552(a)(6)(A)(i). The statute further requires that the agency provide the requester with an opportunity to appeal any adverse determination. Id. The written determination letter serves to inform the requester of the results of the agency’s fee waiver determination. In doing so, the determination letter allows the requester to decide whether the agency’s response to its request was adequate and proper and provides this office with a record upon which to base its consideration of an administrative appeal.

In the present case, the determination letter fails to apply the four factors set forth at 10 C.F.R. §1004.9(a)(8)(i). As a result, the determination letter does not satisfy DOE’s obligation to fully explain and justify its determination as required by the applicable FOIA case law. Accordingly, we are remanding this portion of the Appeal to Rocky Flats with instructions to apply the four factors set fourth at 10 C.F.R. §1004.9(a)(8)(i). After applying these factors, Rocky Flats must issue a new determination letter which either grants a full or partial fee wavier or denies the request for a fee waiver. If the new determination letter denies the request for a fee waiver it must include a full explanation of its determination. A full explanation of such a determination would include an explanation of how Rocky Flats applied the four factors set forth at 10 C.F.R. §1004.9(a)(8)(i).

Rocky Flats apparently reasoned that since the Appellant is a commercial concern, its interest in disclosure of the requested information is primarily in its commercial interest. This is not necessary true. It is conceivable that a commercial requester might have non-commercial interests in information disclosed to it under the FOIA. Accordingly, we are remanding this portion of the Appeal to Rocky Flats. On remand, Rocky Flats must grant the fee wavier request or provide a through explanation of why it is denying the Appellants fee wavier request.

It Is Therefore Ordered That:

(1) As set forth above, the Appeal filed by R.E.V. Engineering Services on March 26, 2001, is dismissed in part, granted in part as set forth in Paragraph (2), and denied in all other aspects.

(2) Those portions of the Appeal concerning fee determinations are hereby remanded to the Rocky Flats Area Office which shall issue a new determination in accordance with the instructions set forth above.

(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: April 20, 2001