Case No. VFA-0736

July 30, 2002

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Jeffrey T. Richelson

Date of Filing: April 16, 2002

Case Number: VFA-0736

On April 16, 2002, Jeffrey Richelson appealed three determinations issued by the Albuquerque Operations Office (Albuquerque) of the Department of Energy (DOE) which denied his requests to be considered as a member of the news media and for fee waivers under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004. For the reasons set forth below, we find that Mr. Richelson is a representative of the news media and remand these matters to Albuquerque to issue new determinations in response to Mr. Richelson’s requests for a fee waiver.

BACKGROUND

On January 9, 2002, Mr. Richelson sent a FOIA request to Albuquerque in which he asked for copies of Los Alamos Scientific Laboratory (LASL) and Los Alamos National Laboratory (LANL) studies of the French nuclear weapons program produced between January 1, 1970 and December 31, 1985 (Control No. FOIA 02-008-A). On January 26, 2002, Mr. Richelson sent a FOIA request to Albuquerque in which he asked for a copy of a document entitled “D.B. Stillman and H.T. Hawkins, ?October 1990 Visit to China,’ IT-DO-92-052, August 1992" (Control No. FOIA 02-012- A). On March 18, 2002, Mr. Richelson sent a FOIA request to Albuquerque in which he asked for copies of certain LASL and LANL studies of Indian nuclear tests (Control No. FOIA 02-032-A). In all three requests, Mr. Richelson asked Albuquerque to categorize him as a member of the news media and for a waiver of copying fees.

On March 27, 2002, Albuquerque issued three determinations that denied Mr. Richelson’s requests to be categorized as a member of the news media and for waivers of copying charges. In all three determinations, Albuquerque concluded that Mr. Richelson was not a representative of the news media because he (1) is a free-lance writer who lacks the ability to deliver news directly to the public, (2) has failed to express a firm intention to publish documents related to information sought in the FOIA request, and (3) has failed to indicate that the planned publication pertains to a particular topic of current interest.

Albuquerque denied Mr. Richelson’s requests for a waiver of copying fees on the grounds that he (1) failed to show how disclosure of the requested information would likely contribute to the public’s understanding of specifically identifiable government operations or activities, (2) failed to demonstrate how the requested information would be disseminated, and (3) failed to demonstrate that disclosure of the requested information would contribute significantly to the public’s understanding of the issues involved. In addition, Albuquerque denied Mr. Richelson’s requests for a waiver of copying fees in Control No. FOIA 02-008-A and Control No. FOIA 02-032-A because he failed to show that the requested records have informative value with respect to any specifically identifiable operation or activity of the U.S. government.

By letter dated April 9, 2002, Mr. Richelson appealed these determinations to OHA. In his appeal, Mr. Richelson asserts that Albuquerque should have categorized him as a representative of the news media because he has an established history of publishing books and articles, intends to use the documents requested under the FOIA to write a book entitled “Spying on the Bomb, U.S. Intelligence and Foreign Nuclear Weapons Programs,” which is under contract to be published by W.W. Norton in the spring of 2005, and has been categorized as a representative of the news media by DOE on at least two occasions.(1) Appeal Letter.

In this appeal, Mr. Richelson also maintained that Albuquerque erroneously denied his requests for a waiver of copying fees. In support of this position, Mr. Richelson asserts that the production of studies on a foreign nuclear weapons program by a United States government organization is a specifically identifiable operation of the government and that nuclear intelligence activities are a very significant component of government operations and are a matter of public interest and importance. Mr. Richelson further maintains that publication of his book will disseminate the information to a broad audience and that Albuquerque has used the wrong standard to assess his arguments. Id.

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 representatives of 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). For the reasons detailed below, we find that, for the purposes of these FOIA requests, Mr. Richelson is a representative of the news media and should not be required to pay search and review costs. We also remand these matters to Albuquerque to issue new determinations in response to Mr. Richelson’s requests for a fee waiver.

A. Representative of the News Media

Under the DOE FOIA regulations, the term “representative of the news media" refers to:

any person actively gathering news for an entity that is organized and operated to publish or broadcast news to the public. The term "news" means information that is about current events or that would be of current interest to the public. Examples of news media entities include television or radio stations broadcasting to the public at large, and publishers of periodicals (but only in those instances when they can qualify as disseminators of "news") who make their products available for purchase or subscription by the general public. These examples are not intended to be all- inclusive. . . . In the case of "freelance" journalists, they may be regarded as working for a news organization if they can demonstrate a solid basis for expecting publication through that organization, even though not actually employed by it. A publication contract would be the clearest proof, but agencies may also look to the past publication record of a requester in making this determination.

10 C.F.R. § 1004.2 (m).

We find that Mr. Richelson is a representative of the news media. As set forth above, Mr. Richelson has an established history of publishing books and articles and intends to use the documents requested under the FOIA to write a book which is under contract to be published by W.W. Norton. Publication is projected to be in the spring of 2005. Under Section 1004.2(m), a freelance journalist with a publication contract may be regarded as a representative of the news media. See National Security Archive v. U.S. Department of Defense, 880 F.2d 1381 (D.C. Cir. 1989) (defines the term “representative of the news media” to include a person who gathers information of potential interest to a portion of the public, uses editorial skills to turn this information into a distinct work, and then distributes the work to an audience). Moreover, our cases hold that a freelance journalist who intends to use documents requested under the FOIA to write a book is a representative of the news media. See John H. Carter, 21 DOE ¶ 80,122 (1991); David DeKok, 20 DOE ¶ 80,118 (1990). Finally, Mr. Richelson’s proposed book about U.S. intelligence operations is “news” because the topic is of current interest to the public and will continue to be of interest when Mr. Richelson’s book is published, which is projected to be in 2005. Accordingly, we conclude that Mr. Richelson is a representative of the news media.

B. Waiver of Copying Fees

Under the DOE FOIA regulations, the agency will furnish documents without charge if disclosure of the requested information is in the public interest “because it is likely to contribute significantly to public understanding of the operations or activities of the Government and disclosure is not primarily in the commercial interest of the requester.” 10 C.F.R. § 1004.9(a)(8).

In determining whether disclosure of the information is in the public interest, Section 1004.9 indicates that the FOIA Officer should consider the following four factors:

(1) Whether the subject of the request concerns "the operations or activities of the government;”

(2) Whether the disclosure of this information is "likely to contribute" to an understanding of government operations or activities;

(3) Whether disclosure of this information will contribute to an understanding by the general public of the subject; and

(4) Whether disclosure of this information is likely to contribute "significantly" to public understanding of government operations or activities.

Here we are unable to determine whether disclosure of the requested information is likely to contribute significantly to public understanding of the operations and activities of government because all of the documents that have been located which are responsive to Mr. Richelson’s FOIA requests are classified. See Memorandum of Telephone Conversation between Terry Martin Apodaca, FOIA Officer, Albuquerque and Linda Lazarus, Staff Attorney, OHA (June 14, 2002). Until the classification reviews are complete, we cannot know what type of information, if any, will be released. As such, we cannot assess the significance of the information at issue and whether Mr. Richelson would be entitled to a waiver of copying fees. Accordingly, we will remand this matter to Albuquerque to issue new determinations on the waiver of copying fees that contain specific findings about the type of information that will be released in response to Mr. Richelson’s FOIA requests.

We are, however, able to conclude that disclosure of the information would not be “primarily in the commercial interest of the requester.” In determining whether disclosure of information is “primarily in the commercial interest of the requester,” Section 1004.9 indicates that the FOIA Officer should consider the existence and magnitude of a commercial interest and the primary interest in disclosure. Section 1004.9(b)(3) also provides that “a request for records supporting the news dissemination function of the requester will not be considered to be a request for commercial use.” Thus, as Mr. Richelson has made these requests as a representative of the news media, we find

that disclosure of the requested information would not be primarily in his commercial interest. See also National Security Archive v. U.S. Department of Defense, 880 F.2d at 1388 (requests from news media entities in furtherance of their news gathering function are not for commercial use).

It Is Therefore Ordered That:

(1) The Freedom of Information Act Appeal filed by Jeffrey T. Richelson on April 16, 2002, OHA Case No. VFA-0736, is hereby granted. This matter is hereby remanded to the Albuquerque Operations Office to issue new determinations consistent with this Decision and Order.

(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: July 30, 2002

(1)We note that it is irrelevant that DOE has previously categorized Mr. Richelson as a representative of the news media because a determination of whether an individual or an entity is a representative of the news media must be made on a case-by-case basis in light of the totality of the circumstances in existence at the time of the request.