Case No. VFA-0726

April 12, 2002

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Southwest Research and Information Center

Date of Filing: February 26, 2002

Case Number: VFA-0726

On February 26, 2002, Southwest Research and Information Center (Southwest) filed an Appeal from a determination issued to it in response to a request for documents that it 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 determination was issued on January 29, 2002, by the Carlsbad Field Office of the Department of Energy (Carlsbad). This Appeal, if granted, would require that Carlsbad grant Southwest a fee waiver.

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, Southwest sought information and documents related to the Waste Isolation Pilot Plant. Southwest requested that all fees associated with the processing of the request be waived. Because Southwest’s request did not adequately address the DOE’s criteria for granting fee waivers, in a letter dated January 29, 2002, Carlsbad informed Southwest that its request for a fee waiver was denied. See Determination Letter at 2.

In its Determination Letter, Carlsbad concluded that Southwest did not adequately explain its ability and intention to disseminate the requested information to the public. Id. 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). In addition, Carlsbad concluded that Southwest failed to demonstrate that disclosure of the requested records would contribute significantly to the public understanding of the issues identified. Determination Letter at 2.

On February 26, 2002, Southwest appealed Carlsbad’s determination. In its Appeal, Southwest included additional information about the public interest in disclosure and about its ability to disseminate the material sought. This information may satisfy the deficiencies set forth in Carlsbad’s initial determination, and Carlsbad has agreed to reconsider this matter on remand. Therefore, in light of this new information, we will remand this matter to Carlsbad. Upon remand, Carlsbad should review Southwest’s Appeal and promptly issue a revised fee waiver determination.

It Is Therefore Ordered That:

(1) The Freedom of Information Act Appeal filed by Southwest Research and Information Center on February 26, 2002, OHA Case Number VFA-0726, is hereby granted as set forth in paragraph (2) below.

(2) This matter is remanded to the Carlsbad Field Office of the Department of Energy 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: April 12, 2002