Case No. VFA-0719

March 20, 2002

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

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

Date of Filing: February 6, 2002

Case Number: VFA-0719

On February 6, 2002, R.E.V. ENG. Services filed an Appeal from a determination that the Freedom of Information Act/Privacy Act Division (FOIA/PA) of the Department of Energy (DOE) issued on December 14, 2001.(1) In its determination, FOIA/PA categorized the Appellant as a commercial use requester. For the reasons set forth below, the Appeal will be denied.

I. Background

On August 29, 2001, the Appellant filed a FOIA request with FOIA/PA asking for “information pertaining to the Motion to Dismiss [Civil Action No. 97-WM-2191, USA ex rel Ridenour, et al. v. Kaiser-Hill, et al.] in the US District Court for the District of Colorado.” Request Letter dated August 29, 2001, from R.E.V. ENG Services to Abel Lopez, Director, FOIA/PA (Request Letter). On October 4, 2001, FOIA/PA notified the Appellant that it was classified as a “commercial use” requester. Letter dated October 4, 2001, from Abel Lopez to David E. Ridenour, P.E. (October 4, 2001 Letter). FOIA/PA also indicated that the Appellant would be charged search, review, and duplication costs associated with its request. Id. In its December 14, 2001 Determination Letter, FOIA/PA outlined its finding that the Appellant was a “commercial use” requester relying on the fact that the information the Appellant is requesting is related to its qui tam action.(2) Determination Letter dated December 14, 2001 from Abel Lopez to David E. Ridenour, P.E. (Determination Letter). The Appellant argues, in its Appeal, that (1) FOIA/PA did not respond in a timely fashion to its request because it did not make a determination on the merits of the request and (2) FOIA/PA’s categorization of the Appellant as a commercial use requester is erroneous. Appeal Letter dated December 20, 2001, from David E. Ridenour, P.E., to George B. Breznay, Director, Office of Hearings and Appeals (OHA) (Appeal Letter). The Appellant also argues that OHA previously remanded the commercial classification issue to the Rocky Flats Field Office (RFFO) and RFFO subsequently granted a waiver.(3) Id. Further, the Appellant asserts that release of the requested information is in the public interest and that it will disseminate the information to the public. Id.

II. Analysis

The FOIA delineates three types of costs--"search costs," "duplication costs," and "review costs"--and places requesters into three categories that determine which of these costs a given requester must pay. If a requester wants the information for a "commercial use," it must pay for all three types of costs incurred. In contrast, educational institutions and the news media are required to pay only duplication costs, and all other requesters are required to pay search and duplication costs but not review costs. 5 U.S.C. § 552(a)(4)(A)(ii); 10 C.F.R. § 1004.9(b).

The Appellant asserts that the FOIA/PA erroneously categorized it as a “commercial use requester.” We disagree with the Appellant. The DOE Regulations state that a “?[c]ommercial use’ request refers to a request from . . . one who seeks information for a use or purpose that furthers the commercial, trade, or profit interests of the requester.” 10 C.F.R. § 1004.2(c). The Supreme Court has stated that qui tam plaintiffs are “motivated primarily by prospects of monetary reward rather than the public good.” Hughes Aircraft Co. v. U.S. ex rel. Schumer, 520 U.S. 939, 949 (1997). The requested information concerns the Appellant’s qui tam action. The purpose for this request cannot be separated from the qui tam action’s monetary motive. Therefore, we agree with FOIA/PA that the Appellant is a commercial use requester.

III. Conclusion

Based on the foregoing, we conclude that FOIA/PA correctly categorized the Appellant as a commercial use requester. Therefore, the Appeal should be denied.

It Is Therefore Ordered That:

(1) The Freedom of Information Act Appeal filed by R.E.V. ENG Services, Case No. VFA-0719, on February 6, 2002, 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 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: March 20, 2002

(1)In light of the anthrax that was found in October 2001 in federal mail, in November 2001, the United States Postal Service began sending for irradiation all first class mail addressed to the DOE. The Appeal letter received on February 6, 2002, was mailed on December 20, 2001, and therefore is deemed a timely filing.

(2)Qui Tam is a provision of the Federal Civil False Claims Act that allows a private citizen to file a suit in the name of the federal government charging fraud by government contractors and other entities who receive or use government funds, and to share in any money recovered.

(3)Fee waiver determinations depend on the substance of the information requested as well as the nature of the requester. Although the requester in the case cited by the Appellant is the same, the information requested is different. Therefore, although RFFO may have granted the fee waiver in a previous case, this does not mandate that a fee waiver is appropriate in this case, which deals with different information. Moreover, no fee waiver has been requested in this instance.