Case No. VFA-0681, 28 DOE ¶ 80,181

July 23, 2001

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner:David B. McCoy

Date of Filing:June 27, 2001

Case Number: VFA-0681

This decision addresses the Freedom of Information Act (FOIA) appeal filed by David B. McCoy (Appellant) pursuant to 5 U.S.C. § 552, as implemented by the Department of Energy (DOE) at 10 C.F.R. Part 1004. For the reasons set forth below, the appeal will be granted in part and remanded.

I. Background

Appellant filed a FOIA request with the DOE Idaho Operations Office (Idaho) for 23 categories of documents ostensibly related to “Liquid Radioactive Waste Management Systems,” and specifically, the Process Equipment Waste Evaporator (PEWE). Appellant also sought a waiver of the fees associated with processing his request, stating that his FOIA request is in the public interest and he has no commercial interest in obtaining the requested documents.

In response, the Idaho FOIA Office (Idaho/FOI) asked Appellant to complete the filing of his FOIA request by providing additional information justifying a fee waiver. Appellant filed a supplement (the supplement), in which Appellant asserted that he is entitled to a fee waiver, because

  1. The DOE has not provided adequate information to the public regarding the [Resource Conservation and Recovery Act] Part B Application [for the PEWE].
  2. Appellant is an attorney with “prior experience in analyzing nuclear industry documents,” and that information “from facilities which [he has] received, analyzed and briefed was disseminated and resulted in . . . legal actions publicized in the press . . . utilized by other public organizations as well as reporters for newspapers . . . [and] posted on the Internet by organizations such as [the Environmental Defense Institute (EDI)] and utilized in press releases by EDI . . . .”
  3. Appellant has “no commercial interest in obtaining the FOIA materials but wish[es] only to provide the public with a clear picture of the actions of the government in its ongoing failure to properly permit and inform the public of the serious consequences of ill-made past and present decision making.”

Appellant’s supplemental letter, April 30, 2001.

The Idaho/FOI accepted as filed Appellant’s original FOIA request and the supplement on April 30, 2001. After considering both documents, the Idaho/FOI denied Appellant’s request for a fee waiver. In its determination, the Idaho/FOI cited the regulations governing fee waiver requests, 10 C.F.R. § 1004.9(a)(8), which provide that a waiver or reduction of a FOIA fee will be granted where disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government. The Idaho/FOI found that Appellant failed to meet the applicable standard, because

  1. Although Appellant “specifically linked the requested information to the [PEWE] . . . the link [between the requested information and the operations or activities of the government] is tenuous for some of the documents requested . . . .”
  2. Appellant failed to show that the information requested is “meaningfully informative about government operations” and would “be likely to contribute to an increased public understanding of the operations or activities. . . . Additionally, [his] previous requests regarding the PEWE, in which [he had] been granted a fee waiver, are very similar to this request. As such, this additional information . . . will not increase the public’s understanding beyond what [has been provided].”
  3. Appellant failed to show the ability to extract, synthesize and convey the requested information to a reasonably broad audience of persons interested in the subject matter.
  4. Appellant has not shown that the requested information will significantly increase the public’s understanding of the operation of the PEWE “beyond what is already being provided to you in a previous request.”

Determination letter, May 21, 2001.

In his appeal, Appellant argues on procedural grounds that by failing to respond to his request within the regulatory deadline, the Idaho/FOI wholly “waived its right to deny the fee waiver request.” Appellant responds to the substance of Idaho/FOI’s determination as follows:

  1. “DOE has the burden of proof that the documents requested do not relate to government operations.”
  2. The requested documents “taken as a whole” relate to serious public health and safety concerns at the Idaho National Engineering and Environmental Laboratories (INEEL). There is a public need for the information “due to the extraordinary veil of secrecy that shrouded” INEEL and the DOE’s failure to provide adequate information regarding the PEWE Part B application. Appellant “is not held to laying out in advance with specificity what documents will show in relation to government operations . . . . The nature of the documents can only be shown by the documents themselves.” In addition, because, “on far less information than is currently requested,” the Idaho/FOI waived the fees associated with processing Appellant’s previous FOIA request, the Idaho/FOI is “arbitrarily raising the level of its fee information requirements to avoid disclosure of embarrassing information.”
  3. Members of the EDI and “[n]umerous persons in Idaho” are interested in the requested information. In addition, as stated in the supplement, Appellant is an environmental attorney whose analysis of nuclear industry documents has been utilized by the press and public interest groups. Appellant submitted copies of seven newspaper articles that either were authored by Appellant or make reference to him and his analysis.
  4. Because “nothing has been provided to [Appellant] from his previous FOIA Request regarding the PEWE,” the Idaho/FOI unjustifiably relied upon that request as a basis for denying Appellant a fee waiver here.

Appeal letter, June 16, 2001.

II. Applicable Legal Standards

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 FOIA provides for a reduction or waiver of fees, but only if a requester shows 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, a requester must 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). Fee waiver denials generally are reviewed de novo. See Tod N. Rockefeller, 27 DOE ¶ 80,167 (1998).

III. Analysis

As initial matters, we note the following. Contrary to Appellant’s assertion, the Idaho/FOI issued a timely determination to him. 10 C.F.R. § 1004.5(d)(1) requires that the DOE respond to FOIA requests within 20 working days. Rather than rejecting Appellant’s FOIA request as improperly filed, the Idaho/FOI allowed Appellant to amend his FOIA request by filing the supplement. Upon receipt of the supplement, the Idaho/FOI deemed it and the original request as having been filed on April 30, 2001. Thus, the Idaho/FOI’s May 21, 2001 response was within the statutory deadline. In any case, the failure of a DOE office to respond to a FOIA request within 20 working days does not cause a of waiver of its ability to render a determination. Rather, it gives to the requester the right of review in district court. 5 U.S.C. § 552(a)(4); 10 C.F.R. § 1004.5(d)(4).

In addition, we emphasize that the FOIA places the burden on the individual to show that he qualifies for a fee waiver. Contrary to Appellant’s contention, the burden is not on the government to show that he does not qualify. Finally, the fact that Appellant received fee waivers in the past is not necessarily relevant to determining whether he is entitled to a fee waiver here. As indicated by a reading of Factors A through D of the public interest prong, whether a requester is entitled to a fee waiver depends upon the nature of the specific request at issue.

We now turn to the issue of whether the public interest prong is satisfied in this case. As discussed below, we find that Appellant has satisfied each element of the public interest prong and therefore may be entitled to a fee waiver or partial fee waiver.

We begin with Factor A. Factor A requires that requested records be sought for their informative value with respect to a specifically identifiable government operation or activity. See Van Fripp v. Parks, No. 97-0159, slip op. at 10 (D.D.C. Mar. 16, 2000). Appellant requested 23 categories of documents ostensibly related to the PEWE. We have little trouble concluding that the requested information relates to a specifically identifiable government operation or activity, i.e., the PEWE. Indeed, the Idaho/FOI so found.

The Idaho/FOI further stated, however, that “the link is tenuous for some of the documents requested such as the Denson notegrams.” The Idaho/FOI provided no additional detail on that point, perhaps because it proceeded to find that disclosure of the requested information does not satisfy the other public interest factors and that, therefore, Appellant was not entitled to a fee waiver for any documents. As further discussed below, upon remand, the Idaho/FOI must segregate those documents that satisfy Factor A from those that it believes do not satisfy Factor A and provide an adequate explanation for the distinction.

We next proceed to Factor B. Factor B requires that the requested information be likely to contribute to the public’s understanding of specifically identifiable government operations or activities. More specifically, Factor B asks whether the requested information is already in the public domain or is otherwise common knowledge among the general population. Glen Milner, 26 DOE ¶ 80,147 (1996). If the information is already within the public domain or common knowledge, then release to the requester would not likely contribute, or add to, public understanding of the subject matter. Milner, supra.

Appellant contends that the requested information is not already within the public domain; the Idaho/FOI contends that it is. In determining that the requested information does not satisfy Factor B, the Idaho/FOI found that the subject FOIA request is “very similar” to Appellant’s “previous requests.” Thus, reasoned the Idaho/FOI, the “additional information [Appellant is] requesting will not increase the public’s understanding beyond what is already being provided to [him in response to previous requests].”

It may be true that the duplicative release of information that has already been released to the Appellant, and thereby placed in the public domain, will not contribute or add to the public’s understanding of that information. This reasoning withstands scrutiny, however, only if Appellant indeed received documents responsive to his previous similar requests. The Appellant has not received documents responsive to his previous similar requests. OHA telephone conversation with Appellant, July 13, 2001. The Idaho/FOI confirmed that it has not produced documents responsive to the previous similar requests, as it is in the process of searching for information relative to those requests. OHA telephone conversation with Idaho/FOI, July 16, 2001. Whether and to what extent it will actually produce documents to Appellant will depend upon the nature of the documents discovered. The Idaho/FOI acknowledged that certain documents may fall within a FOIA exemption, which would protect them from disclosure.(1) Id. Because the Idaho/FOI has not released the documents responsive to Appellant’s previous requests, those documents are not already within the public domain. We therefore find that disclosure of the documents requested here would satisfy Factor B.

Factor C asks whether disclosure of the requested material would contribute to the understanding of the subject matter by the public, meaning a “reasonably broad audience of persons interested in the subject, as opposed to the individual understanding of the requester.” See Judicial Watch, Inc. v. United States Dep’t of Justice, 122 F. Supp. 2d 13, 18 (D.D.C. 2000) (Judicial Watch). Thus, the requester must have the ability and intention to disseminate the requested information to the public, and analyze and explain the information in a manner that will contribute to public understanding of it. See Larson v. Central Intelligence Agency, 843 F.2d 1481, 1483 & n.5 (D.C. Cir. 1988).

We find that Appellant satisfies Factor C. As the Idaho/FOI acknowledged, Appellant is knowledgeable on issues related to environmental law and the nuclear industry. The newspaper articles Appellant submitted, which either were authored by him or cite his work, demonstrate his ability to explain and analyze technical information, establish his contacts with press organizations and public interest groups, confirm his history of publicizing information, and evidence his ability and intention to disseminate the requested information at issue in this case. See Landmark v. Internal Revenue Serv., Civ. No. 97-1474, slip op. at 4 (D.D.C. 1997) (as discussed in Judicial Watch, supra, 122 F. Supp. 2d at 19) (finding past newspaper articles authored by non-journalist plaintiff demonstrated ability to disseminate requested information); Government Accountability Project, 25 DOE ¶ 80,203 (1996) (finding past ability to obtain media coverage and interest newspapers on certain issues demonstrated ability to disseminate requested information); Knolls Action Project, 25 DOE ¶ 80,148 (1995) (finding record of involvement with published articles demonstrated ability to disseminate requested information). In addition, the newspaper articles, which relate to environmental law and the nuclear industry, evidence that there exists a reasonably broad audience of persons who would be interested in information relating to the PEWE. Based upon the foregoing, we find that Appellant has the ability and intention to explain, analyze and disseminate the requested information to a reasonably broad audience of interested persons.

In order to satisfy Factor D, disclosure of requested information must be likely to contribute significantly to the public understanding of government operations or activities. Put another way, the public understanding of the subject matter after disclosure, as compared to the level of public understanding prior to disclosure, must be likely to be enhanced by the disclosure to a significant extent. Glen Milner, 26 DOE ¶ 80,147 (1996).

Appellant contends that because there is little, if any, information regarding the PEWE within the public domain, disclosure of the requested information would enhance public understanding of the subject matter to a significant extent. As with Factor B, the Idaho/FOI contends that disclosure of the information would not enhance public understanding of the subject matter “beyond what is already being provided to [Appellant] in a previous request[s].” The Idaho/FOI’s argument fails, however, for the same reason it fails with regard to Factor B. Appellant has not received documents responsive to the referenced previous requests, and, indeed, the Idaho/FOI has produced none. Thus, the information allegedly similar to the subject FOIA request is not already within the public domain. We therefore find that release of the requested documents would satisfy Factor D.

Based upon the foregoing, we find that disclosure of the requested documents is in the public interest. However, because the Idaho/FOI did not reach the issue of whether Appellant satisfies the commercial interest prong test set forth in the FOIA, we cannot review that finding here. Therefore, we will remand this matter to the Idaho/FOI for a further determination. Upon remand, the Idaho/FOI must specifically identify those documents which it found do not satisfy Factor A and provide an adequate explanation for that finding. For the remainder of the documents that do satisfy Factor A, the Idaho/FOI must proceed to analyze whether Appellant satisfies the commercial interest prong and therefore may be entitled to a fee waiver as to those documents. If, prior to issuing its determination in this matter, the Idaho/FOI releases documents responsive to Appellant’s previous FOIA requests, the Idaho/FOI may provide an adequate explanation as to why disclosure of the information requested in this case does not satisfy Factors B or D. In that circumstance, the Idaho/FOI would not need to proceed to analyze whether Appellant satisfies the commercial interest prong.

It Is Therefore Ordered That:

(1) The appeal filed by David B. McCoy, Case Number VFA-0681, is hereby granted as specified in Paragraph (2) below.

(2) This matter is hereby remanded to the DOE Idaho Operations Office to issue a new determination in accordance with the instructions set forth in this Decision and Order.

(3) This is a final Order of the Department of Energy from which any aggrieved party may seek judicial review. 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 Appeals

Date: July 23, 2001

(1) The FOIA provides nine exemptions under which an agency may withhold documents. 5 U.S.C. § 552(b); 10 C.F.R. § 1004.10(b).