Case No. VFA-0679, 28 DOE ¶ 80,178 July 19, 2001

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Barbara Schwarz

Date of Filing: June 20, 2001

Case Number: VFA-0679

On June 20, 2001, Barbara Schwarz filed an Appeal from a determination issued to her in response to a request for documents that she 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 June 7, 2001, by the DOE Headquarters FOIA/Privacy Act Division (DOE/HQ). This Appeal, if granted, would require that DOE/HQ grant Ms Schwarz a fee waiver.

I. Background This Appeal concerns a FOIA request Ms Schwarz originally filed with DOE/HQ on May 17, 2001. The request did not contain either an assurance to pay any fees associated with the request or a request for a waiver of the fees as required by the DOE FOIA Regulations. On May 17, 2001, DOE/HQ sent Ms Schwarz a letter asking if she was willing to provide such an assurance or was requesting a fee waiver. Letter dated May 18, 2001, from Abel Lopez, Director, FOIA/PA Act Division, to Barbara Schwarz (May 18, 2001 Letter). Ms Schwarz responded on May 25, 2001, that she could not pay any fees and was entitled to a fee waiver since "the documents are in the public interest, because they contribute significantly to public understanding of the operations and activities of the government and I have no commercial interest at all with those documents." Letter dated May 25, 2001, from Barbara Schwarz, to Abel Lopez and Sheila Jeter, FOIA/PA Act Division (May 25, 2001 Letter). In response, DOE/HQ denied Ms Schwarz' fee waiver request. Determination Letter dated June 7, 2001, from Abel Lopez, Director, FOIA/PA Act Division, to Barbara Schwarz. She filed this Appeal on June 20, 2001, claiming that other similar requests for fee waivers from different individuals have been granted. Appeal Letter dated June 18, 2001, from Barbara Schwarz to George B. Breznay, Director, Office of Hearings and Appeals (OHA) (Appeal Letter).

II. Analysis Ms Schwarz submits several reasons to justify her qualification for a fee waiver. First, she claims that she is indigent. Appeal Letter. Ms Schwarz also contends that DOE has approved fee waivers for other requesters in the same or similar circumstances. Id. Finally,

Ms Schwarz argues fee waivers were granted to other requesters who did not need the records as urgently as she and for requests that would not significantly contribute to the public's understanding of how the government works.(1) Appeal Letter.

The FOIA generally requires that requesters pay fees for the processing of their requests. 5 U.S.C. § 552(a)(4)(A)(i); see also 10 C.F.R. § 1004.9(a). However, it provides a two- pronged test for agencies to use in considering whether to waive fees. The two prongs can be summarized as the "public interest prong" and the "commercial interest" prong. See Ruth Towle Murphy, 27 DOE ¶ 80,173 (1998). The public interest prong requires an examination of whether disclosure of the information is likely to contribute significantly to public understanding of the operations or activities of the government. 5 U.S.C. § 552(a)(4)(A)(iii). The commercial interest prong asks whether the request is primarily in the commercial interest of the requester. Id. The requester bears the burden of satisfying the two-prong test for a fee waiver. See Roderick Ott, 26 DOE ¶ 80,187 (1997).

In order to determine whether the requester meets the public interest prong (i.e., whether disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of government operations or activities), the DOE considers four factors:

(A) The subject of the request: whether the subject of the requested records concerns the operations or activities of the government;

(B) The informative value of the information to be disclosed: whether the disclosure is likely to contribute to an understanding of government operations or activities;

(C) The contribution to an understanding by the general public of the subject likely to result from disclosure;

(D) The significance of the contribution to public understanding: whether the disclosure is likely to contribute significantly to public understanding of government operations or activities.

10 C.F.R. § 1004.9(a)(8)(i). A requester who satisfies the four factors of the public interest prong must then address the second prong by showing that disclosure of the information is not primarily in his or her commercial interest. See Information Focus on Energy, 26 DOE ¶ 80,199 (1997). In her May 25, 2001 Letter, Ms Schwarz does not even attempt to provide any justification for the four factors. In denying Ms Schwarz' fee waiver request, the Director of DOE/HQ based this conclusion on Ms Schwarz' alleged failure to provide any justification for any of the four factors. Determination Letter at 1. Given the lack of information in Ms Schwarz' fee waiver request and Appeal, we find that DOE/HQ properly denied Ms Schwarz' request for a fee waiver based on the four factors in 10 C.F.R. § 1004.9(a)(8).(2)

In her Appeal, Ms Schwarz argues that fee waivers were granted other requesters in the same or similar circumstances. Appeal Letter. She offers no support for this contention. All requesters must provide justification relating to the four factors in order to be granted a waiver, a requirement that she has not fulfilled. Finally, Ms Schwarz argues fee waivers were granted to others that did not need the records as urgently as she, and the information they sought would not contribute as significantly to the public's understanding of how the government works. Id. However, she has provided no support for this contention, and without more we have no means to consider its validity.

Ms Schwarz argues that despite the fee waiver denial, she is entitled to two hours of free search time and 100 pages of free copies. Only certain categories of requesters are entitled to two hours of free search time and 100 pages of free copies. See 10 C.F.R. § 1004.9(b). DOE/HQ made no determination as to Ms Schwarz' category. Therefore, we will remand the Appeal to DOE/HQ to determine Ms Schwarz' category and whether she is entitled to two hours of free search time and 100 pages of free copies.

III. Conclusion DOE/HQ properly denied Ms Schwarz' request for a fee waiver because the request contained no justification for granting that waiver. However, DOE/HQ did not determine whether Ms Schwarz' category would entitle her to two hours of free search time and 100 pages of free copies. Accordingly, the Appeal is denied in part and granted in part and remanded to DOE/HQ.

It Is Therefore Ordered That:

(1) The Freedom of Information Act Appeal filed by Barbara Schwarz on June 20, 2001, OHA Case Number VFA-0679, is hereby denied in part and granted as set forth in Paragraph (2) below.

(2) This matter is remanded to DOE Headquarters FOIA/Privacy Act Division for further processing in accordance with the instructions provided in this Decision.

(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: July 19, 2001

(1)Ms Schwarz did not offer any evidence to support any of her claims. We note that indigence is not a basis for a waiver of fees under the FOIA. See Barbara Schwarz, 28 DOE ¶ 80,126 (2000); Ely v. United States Postal Service, 753 F.2d 163, 165 (D.C. Cir. 1985) ("Congress rejected a fee waiver provision for indigents.").

(2)Also in the May 25, 2001 Letter, Ms Schwarz requests that her fee waiver requests of November 19, 2000, October 10, 2000, and December 18, 2000, be granted. DOE/HQ responded that two of those requests were previously denied and the third could not be identified. Determination Letter. Ms Schwarz does not address this issue in her Appeal. While her May 25, 2001 Letter could be considered a revival of her arguments raised in those previous requests, we note that those fee waiver requests have already been denied, and we will not address those arguments in this Decision.

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