Case No. VFA-0694

October 22, 2001

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Chinese for Affirmative Action

Date of Filing: September 7, 2001

Case Number: VFA-0694

This Decision and Order concerns an Appeal that was filed by Chinese for Affirmative Action (CAA) from a determination issued to it by the Department of Energy’s (DOE) Albuquerque Operations Office (AOO). In this determination, AOO denied in part CAA’s request for a waiver of fees with regard to a request that it filed under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004. In its Appeal, CAA asks that we grant its request for a fee waiver in full.

The FOIA requires that federal agencies generally release documents to the public upon request. The Act also provides for the assessment of fees for the processing of requests for documents. 5 U.S.C. § 552(a)(4)(A)(i); see also 10 C.F.R. § 1004.9(a). However, the DOE will grant a full or partial waiver of applicable fees if disclosure of the information sought in a FOIA request (i) is in the public interest because it is likely to contribute significantly to public understanding of the activities of the government, and (ii) is not primarily in the commercial interest of the requester. 5 U.S.C. § 552(a)(4)(A)(iii).

I. Background

In its FOIA request, CAA sought access to records from the Los Alamos and Sandia National Laboratories relating to alleged civil rights abuses and the possible use of racial profiling in monitoring and investigating American scientists and other national laboratory employees. CAA requested that all fees associated with the processing of the request be waived. Because CAA’s request did not adequately address the DOE’s criteria for granting fee waivers, in a letter dated June 26, 2001, AOO informed the requester of those criteria, and asked CAA for further information in support of its request.

After reviewing CAA’s response to its June 26 letter, AOO granted CAA a partial fee waiver. While finding that CAA had no commercial interest in the requested records and that its justification satisfied the DOE waiver criteria in part, AOO concluded that CAA had not shown “present public interest [or its] ability to disseminate the requested records . . . .” AOO determination at 1. The ability

to disseminate the requested material to the public is a critical factor in determining whether a requester should be granted a waiver of fees. Larson v. CIA, 843 F. 2d 1481, 1483 (D.C. Cir. 1988). See also Ruth Towle Murphy, 27 DOE ¶ 80, 173.

On September 7, 2001, CAA appealed AOO’s determination. In its Appeal, CAA included additional information about the public interest in disclosure and about its ability to disseminate the material sought. This information appears to satisfy the deficiencies set forth in AOO’s initial determination, and that Office has requested that we remand this matter to it for the issuance of new fee waiver determination. Because AOO has not yet had an opportunity to consider CAA’s request in light of this new information, we will remand this matter to it. Upon remand, AOO should review CAA’s Appeal and promptly issue a revised fee waiver determination.

It Is Therefore Ordered That:

(1) The Appeal filed by Chinese for Affirmative Action on September 7, 2001, is hereby granted as set forth in paragraph (2) below.

(2) This matter is remanded to AOO for the issuance of a new fee waiver determination.

(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 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: October 22, 2001