Case No. VFA-0671, 28 DOE ¶ 80,175

June 27, 2001

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Barbara Schwarz

Date of Filing: May 15, 2001

Case Number: VFA-0671

On May 15, 2001, Barbara Schwarz (Schwarz) filed an Appeal from three determinations issued to her in response to requests for documents that she 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 determinations were issued on March 22, April 19, and April 27, 2001, by the DOE Headquarters FOIA/Privacy Act Division (DOE/HQ). This Appeal, if granted, would require that DOE/HQ perform an additional search and grant Schwarz a fee waiver.

I. Background

This Appeal concerns three FOIA requests that Schwarz submitted to DOE, the Department of the Army, and the Department of State. The request that was originally submitted to the Department of State (DOS) was subsequently referred to DOE after DOS searched its files and found responsive information that related to DOE. The request that was submitted to the Department of the Army asked for material related to litigation with DOE.

In her first request, Schwarz asked that DOS send Schwarz a copy of all records pertaining to her. Letter from Schwarz to DOS (October 21, 1999). DOS searched, and during its search found one responsive document that also contained information related to DOE. Letter from M. Grafeld, DOS to Abel Lopez, DOE/HQ (March 26, 2001). DOS referred the document to DOE, and DOE released the document to Schwarz in its entirety. On September 13, 2000, Schwarz requested the Department of the Army (the Army) to provide her with copies of records relating to her litigation with several government agencies, including DOE. Letter from Schwarz to the Army (September 13, 2000). The Judge Advocate General (JAG) of the Army forwarded the portion of the request pertaining to DOE to DOE/HQ on March 26, 2001 for appropriate action. Letter from JAG to DOE/HQ (March 26, 2001). On April 19, 2001, DOE/HQ informed Schwarz that the DOE Office of General Counsel (DOE/OGC) searched but found no responsive documents relating to her litigation with DOE. Letter from DOE/HQ to Schwarz (April 19, 2001). Finally, in the third request at issue in this Appeal, Schwarz asked DOE/HQ on December 18, 2000, for all information on several matters including: (1) earthquakes that may have been caused by individuals with access to power plants;

(2) the negative affects of electricity in residential areas; (3) alleged bribes by the German Secret Service to Utah Power employees; (4) the mental health of DOE and nuclear power plant employees; and (5) the alleged secret and illegal infiltration of the DOE by the “German Nazi Secret Service.” Letter from DOE/HQ to Schwarz (March 22, 2001) (Determination). She also requested that DOE waive fees in processing her request. Id. On March 22, 2001, DOE/HQ denied Schwarz’s request for a fee waiver and asked for an assurance that she would pay processing fees before initiating a search. Id. Schwarz appealed all of these determinations and asks that OHA grant the fee waiver and order DOE/HQ to conduct another search for responsive material. She also argues that she is entitled to two free hours of search time and 100 free pages of records. Letter from Schwarz to Director, OHA (May 15, 2001) (Appeal).

II. Analysis

Schwarz submits several reasons to justify her qualification for a fee waiver. First, she claims that she is indigent. Appeal at 2. Schwarz also contends that DOE has approved fee waivers for requesters who did not meet the requirements for a fee waiver. Id. (1) Finally, Schwarz argues that the requested information concerns government activities and that she is capable of disseminating the material to the public via the Internet and press releases. Appeal at 3.

A. Fee Waiver

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 public interest prong (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) 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 Schwarz’s fee waiver request, the Director of the DOE/HQ based this conclusion on Schwarz’s alleged failure to provide justification for any of the four factors. Determination at 1. After reviewing Schwarz’s arguments de novo, we agree, and find that DOE/HQ properly denied Schwarz’s request for a fee waiver based on the four factors in 10 C.F.R. § 1004.9(a)(8).

1. Factor A

DOE/HQ argues that the information requested “may not concern the operations or activities of the government and specifically the Department of Energy.” Letter from DOE/HQ to Schwarz (March 22, 2001) at 2. We agree. Information regarding electricity, earthquakes, and the causes of earthquakes is not likely to concern the operations or activities of government. Records must be sought for their informative value with respect to specifically identified government operations or activities. See Van Fripp v. Parks, No. 97-0159, slip op. at 10 (D.D.C. Mar 16, 2000). In addition, Schwarz has requested information on the mental health of DOE and power plant employees, and the alleged bribery of DOE employees. This information could, arguably, concern the operations of the agency. However, Schwarz has not specifically identified any DOE operations or activities nor has she made more than a conclusory statement about the public interest in this information. Oglesby v. Department of the Army, 920 F.2d 57, 66 n.11 (D.C. Cir. 1990) (conclusory statements insufficient to make public interest showing). Thus, there is a “tenuous link” between furnishing the requested information and any benefit to the general public. NTEU v. Griffith, 811 F.2d 644, 647 (D.C. Cir. 1987). For instance, Schwartz argues that the American people need to know this information because “whatever comes from the government might not always be in the best interest of the United States.” Appeal at 3. She also states that Americans want to know of a “secretly infiltrated DOE” so that they can “protect their lives and those of their family members.” Id. These are conclusory statements that do not enlighten the agency about any potential public interest in the requested material. Therefore, we find that Schwarz has failed to satisfy Factor A.

2. Factor B

In order for the disclosure to be “likely to contribute” to an understanding of specific DOE operations or activities, the responsive material must be meaningfully informative in relation to the subject matter of the request. See Carney v. Department of Justice, 19 F.3d 807, 814 (2d Cir. 1994) (stating that it is relevant to consider subject matter of fee waiver request). We cannot find that the requested information, if it exists, would contribute to an understanding of DOE operations or activities. Allegations of agency malfeasance do not warrant a fee waiver without further evidence that informative material will be found. See AFGE v. Department of Commerce, 632 F. Supp. 1272, 1278 (D.D.C. 1986); aff’d on other grounds, 907 F.2d 203 (D.C. Cir. 1990). Thus, Schwarz has failed to satisfy Factor B.

3. Factor C

This test requires us to consider whether the requested documents would contribute to the understanding of the subject by the general public. To satisfy this factor, the requester must have the ability and intention to disseminate this information to the public. See STAND, 27 DOE ¶ 80,250 (1999) (STAND); Tod N. Rockefeller, 27 DOE ¶ 80,184 (1999); James L. Schwab, 22 DOE ¶ 80,133 (1992).

We find that Schwarz has not proven an ability to disseminate the requested information to the public. She states that she wants to inform the public via the Internet and that she intends to prepare a document for Congress to use as a basis for legislation against the alleged infiltration. Appeal at 3. She adds that she is capable of dissemination via the Internet and press releases. Id.

This falls far short of the proof required to establish the requester’s ability to disseminate responsive material to the public. See STAND, 27 DOE at 80,250. A requester cannot establish public benefit by alleging an intent to share the requested information with the public. See Donald R. Patterson, 28 DOE ¶ 80,107 (2000). In addition, Schwarz has not established that there is a broad audience of persons interested in the subject of earthquakes, alleged Nazi infiltration of the DOE and the mental health of DOE employees. Mere access to the Internet does not prove an individual’s ability to disseminate information under Factor C. Id; Barbara Schwarz, 28 DOE ¶ 80,126 (2000). Therefore, we find that Schwarz has not satisfied the Factor C test.

4. Factor D

Under Factor D, disclosure must contribute “significantly” to public understanding of government operations or activities. Because, as explained with regard to Factor A, Schwarz 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, Schwarz has failed to satisfy Factor D. Because Schwarz has not satisfied the public interest prong, it is unnecessary to analyze the commercial interest prong. We therefore find that DOE/HQ properly denied Schwarz’s request for a fee waiver. (2)

B. ADEQUACY OF SEARCH

Schwarz asks that OHA order DOE/HQ to conduct a new search because she contends that more responsive documents exist at DOE and that DOE must have records regarding her cases against the Departments of Treasury, Health and Human Services, and the FBI. Appeal at 1. She requests detailed information about the search for these documents, including “search records” and a “search declaration” by the Acting Deputy Counsel for Litigation. Appeal at 2.

In responding to a request for information filed under the FOIA, it is well established that an agency must “conduct a search reasonably calculated to uncover all relevant documents.” Truitt v. Department of State, 897 F.2d 540, 542 (D.C. Cir. 1990). “The standard of reasonableness which we apply to agency search procedures does not require absolute exhaustion of the files; instead, it requires a search reasonably calculated to uncover the sought materials.” Miller v. Department of State, 779 F.2d 1378, 1384-85 (8th Cir. 1985); accord Truitt, 897 F.2d at 542. We have not hesitated to remand a case where it is evident that the search conducted was in fact inadequate. See, e.g., Glen Milner, 17 DOE ¶ 80,102 (1988). We have analyzed the search conducted by DOE/HQ and find that the search was adequate.

Schwarz filed a FOIA appeal with the Army on September 13, 2000. Her appeal contained a FOIA request for copies of records related to her litigation with DOE and other agencies. Letter from the Army to DOE/HQ (March 26, 2001). The Army searched its files in response to Schwarz’s request and found no responsive material. The Army then referred the request to the agencies that were actually parties to the litigation. Id. In the request, Schwarz stated that she sued DOE and gave a specific case number. DOE/HQ contacted the Department of Justice (DOJ) about the case, and was informed that because Schwarz did not file the case properly, the case was never sent to DOE. Letter from Sheila Jeter, DOE/HQ to Valerie Vance Adeyeye, OHA (June 1, 2001). Nonetheless, DOE/OGC still conducted a search of its files using the case number, but found no responsive documents. Letter from DOE/HQ to Schwarz (April 19, 2001).

We find that DOE/OGC conducted an adequate search reasonably calculated to uncover the material requested by Ms. Schwarz. Even though DOJ informed DOE that the case was never sent to DOE, DOE/OGC still searched its files for responsive material using the case number. DOE/OGC was not required to provide a detailed description of its search or a “search certificate.” The FOIA simply requires the agency to notify the requester of the determination, the reasons for the determination, and of the requester’s right to appeal. See Barbara Schwarz, 27 DOE ¶ 80,245 at 80,872 (1999).

C. PROCEDURAL ISSUES

Schwarz raised other objections to the manner in which DOE/HQ handled the FOIA appeals. She alleged that DOE/HQ attempted to “act like the final authority,” that she was not provided a copy of her appeal, and that she did not receive a transmittal form from the agencies. Appeal at 1. Upon review of Schwarz’s allegations and DOE’s response, we conclude that Schwarz has misinterpreted much of the correspondence relating to her requests for information. DOE/HQ has never claimed to be nor acted as if it were the final authority on the Army and DOS appeals. Rather, those agencies relinquished to DOE the responsibility for processing information related to DOE, and DOE has exercised that authority in its responses to Schwarz. See Letter from DOS to DOE/HQ (March 26, 2001); Letter from the Army to DOE/HQ (March 26, 2001). DOE/HQ has also stated that it will send Schwarz a copy of the transmittal memos that she requested in the Appeal. Letter from Sheila Jeter, DOE/HQ to Valerie Vance Adeyeye, OHA (June 1, 2001).

In conclusion, we find that DOE/HQ conducted a search reasonably calculated to uncover the responsive material. DOE/HQ also properly denied Schwarz’s request for a fee waiver. Accordingly, the Appeal is denied.

It Is Therefore Ordered That:

(1) The Freedom of Information Act Appeal filed by Barbara Schwarz on May 15, 2001, OHA Case Number VFA-0671, 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: June 27, 2001

(1)Schwarz did not offer any evidence that DOE approved “unqualified” FOIA requests. Therefore, we will not address that issue. We further note that indigence is not a basis for a waiver of fees under the FOIA. See Barbara Schwarz, 28 DOE ¶ 80,126 (2000); Ely v. United States Postal Service, 753 F.2d 163, 165 (D.C. Cir. 1985) (“Congress rejected a fee waiver provision for indigents.”).

(2)Regarding Schwarz’s entitlement to two hours of free search time and 100 free copies, we note that DOE/HQ did not deny these items. 10 C.F.R. § 1004.9(a), (b)(4). See Barbara Schwarz, 28 DOE ¶ 80,126 (2000). Rather, the Determination denied only Schwarz’s fee waiver request. It is the policy of DOE/HQ to require a requester to address fees before assigning a control number to the request and initiating a search. After DOE/HQ begins the search, the first two hours are free. See Schwarz, 27 DOE at 80,871 n2. However, DOE/HQ informed us that Schwarz did not include an assurance to pay in her request, nor did she submit one to that office after the determination letter specifically requested assurance. Memorandum of Telephone Conversation between Sheila Jeter, DOE/HQ and Valerie Vance Adeyeye, OHA (June 21, 2001).