Case No. VFA-0646, 28 DOE ¶ 80,147 February 2, 2001

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

APPEAL

Name of Petitioner:Barbara Schwarz

Date of Filing:January 8, 2001

Case Number: VFA-0646

This decision addresses the combined appeals of Barbara Schwarz (Appellant) from two Freedom of Information Act (FOIA) determinations issued to her by the FOI/Privacy Act Division of the Department of Energy (DOE) Headquarters (DOE/FOI). The determinations denied Appellant's requests for fee waivers, which she had filed in connection with two separate FOIA requests, regarding related subject matter. Appellant's respective appeals from those determinations were received by this office on January 8, 2001 and assigned the same case number, VFA-0646. For the reasons set forth below, the appeals will be denied.

I. Background Appellant filed a FOIA request, dated November 19, 2000, with the DOE/FOI for "records pertaining to inquiries/subpoenas of Mark C. Rathbun's (De Rothschild) or his family's attorney or an Independent or Special Counsel or Congress for any records, e.g., FOIA/PA or litigation records on me, Barbara Schwarz or misspelled version Schwartz." In the request for information, Appellant also requested a waiver of associated copying and processing fees (Waiver Request One). Waiver Request One is apparently based upon Appellant's assertions therein that (1) she is indigent and cannot afford to pay the required fees, (2) she needs the requested documents to find and free Mr. Rathbun, who Appellant believes has been wrongfully imprisoned by a "German Nazi conspiracy," and (3) the requested documents "will be of high interest for the American public and will shed light as to how a German infiltrated government works."

By letter dated November 20, 2000 (Waiver Request Two), Appellant requested a waiver of the fees associated with her October 10, 2000 FOIA request for any records pertaining to former President Dwight D. Eisenhower.(1) Appellant filed two supplements to Waiver Request Two, dated December 16, 2000 and December 18, 2000, respectively. In Waiver Request Two, as supplemented,

Appellant asserts that she is entitled to a fee waiver because (1) she is indigent and cannot afford to pay the required fees, (2) she needs the requested documents in order to prove that she was kidnapped from America as a child and taken to Germany by a "German Nazi conspiracy," (3) she intends to make the records available to Congress and the public via the Internet, and (4) it is "important for the American public," and would greatly contribute to the public's understanding of how the government works, to know that the U.S. Government is "secretly infiltrated by a German Secret Service."

Evidently, Appellant's supplements to Waiver Request Two and the DOE/FOI's determinations denying original Waiver Requests One and Two crossed in the mail.(2) In separate letters, each dated December 12, 2000, the DOE/FOI denied Appellant's respective requests for fee waivers, finding that neither request satisfied the requirements for granting a fee waiver, found at 10 C.F.R. § 1004.9(a)(8). Appellant's appeal from the denial as to Waiver Request One shall be referred to as Appeal One, and her appeal from the denial as to Waiver Request Two shall be referred to as Appeal Two.

Appeals One and Two set forth essentially the same assertions as Waiver Requests One and Two, respectively. In Appeal One, Appellant further contends that she has "absolutely no commercial interest [in the requested documents]. I have a private interest in those records and very much so a historical and educational interest of which the American public should profit." She also argues that, regardless of the fee waiver, she is entitled to, but was denied, two "free" hours of search time and 100 "free" copies of records. In Appeal Two, Appellant contends that the DOE/FOI "violated the 20 working days response time to respond to [her October 10, 2000] FOIA request and request for fee waiver," and again argues that she is entitled to, but was denied, free search time and copies.

II. Applicable Legal Principles The FOIA generally requires federal agencies to release documents to the public upon request, but provides that, absent a fee waiver, requesters must pay applicable processing fees. 5 U.S.C. § 552(a)(4)(A)(i); 10 C.F.R. § 1004.9(a). Either an assurance of willingness to pay fees assessed in accordance with Section 1004.9, or a request for fee waiver, must be included in a FOIA request. The FOIA provides for a reduction or waiver of fees only if a requester satisfies his burden of showing that disclosure of the information (1) is in the public interest, because it is likely to contribute significantly to public understanding of the operations or activities of the government (the public interest prong); and (2) is not primarily in the commercial interest of the requester (the commercial interest prong). 5 U.S.C. § 552(a)(4)(A)(iii).

In order to satisfy the public interest prong, the DOE requires that a requester show each of the following:

(A) The subject of the requested records concerns "the operations or activities of the government" (Factor A);

(B) Disclosure of the requested records is "likely to contribute" to an understanding of government operations or activities (Factor B);

(C) Disclosure of the requested records would contribute to an understanding of the subject by the general public (Factor C); and

(D) Disclosure of the requested records is likely to contribute "significantly" to public understanding of government operations or activities (Factor D).

10 C.F.R. § 1004.9(a)(8)(i).

If a requester satisfies the four factors of the public interest prong, he must then satisfy the commercial interest prong by showing that disclosure of the information is not primarily in his commercial interest. 10 C.F.R. § 1004.9(a)(8)(ii). Administrative appeals of fee waiver denials generally are reviewed de novo. See Tod N. Rockefeller, 27 DOE ¶ 80,167 (September 29, 1998).

In denying Appellant's Waiver Requests One and Two, the DOE/FOI found that Appellant failed to satisfy each element of the public interest prong. We agree. After performing a de novo review of the merits of both waiver requests, we find that disclosure of the information Appellant seeks is not in the public interest and, therefore, Appellant should not be granted a fee waiver.

III. Analysis Factor A under the public interest prong requires that the requested records be sought for their informative value with respect to specifically identifiable government operations or activities. See Van Fripp v. Parks, No. 97-0159, slip op. at 10 (D.D.C. Mar. 16, 2000) (characterizing request as "fishing expedition that does not relate to defined operations or activities of the government") (Van Fripp); Atkin v. EEOC, No. 91-2508, slip op. at 27-28 (D.N.J. Dec. 4, 1992) (finding requested list of agency attorneys and their bar affiliations "clearly does not concern identifiable government activities or operations"). A request for access to records for their intrinsic informational content alone will not entitle one to a fee waiver. See Carney v. United States Dep't of Justice, 19 F.3d 807, 814 (2d Cir. 1994) (stating subject matter of information sought relevant to consideration of fee waiver) (Carney).

Records pertaining to Mark Rathbun (De Rothschild) and former President Dwight D. Eisenhower

might have intrinsic informative value and be of general interest. However, Appellant has failed to show that such records have informative value with respect to a specifically identifiable operation or activity of the United States government. Appeals One and Two are laden with Appellant's denouncements of Nazi Germany and personal attestations as to the truth of her suspicions, but they do not address the issue relevant to a FOIA fee waiver determination, namely, whether the information Appellant seeks relates to or will shed light upon a particular aspect of government conduct. Because Appellant has failed to show that the requested records have informative value with respect to specifically identifiable government operations or activities, Appellant has failed to satisfy Factor A.

Under Factor B, disclosure of the requested information must be likely to contribute to the public's understanding of specifically identifiable government operations or activities, i.e., the records must be meaningfully informative in relation to the subject matter of the request. See Carney, 19 F.3d at 814. Because, as explained with regard to Factor A, there is no evidence linking the subject matter of Waiver Requests One and Two to specifically identifiable government operations or activities, disclosure of the requested information is not likely to contribute to or enhance public understanding of a specific government operation or activity. Thus, Appellant has failed to satisfy Factor B.

Factor C requires that the requested material contribute to the general public's understanding of the subject matter. Disclosure must contribute to the understanding of the public at large, as opposed to the individual understanding of the requester or a narrow segment of interested persons. Schrecker v. United States Dep't of Justice, 970 F. Supp. 49, 50 (D.D.C. 1997). Thus, the requester must have the ability and intention to disseminate the requested information to the public. See Larson v. Central Intelligence Agency, 843 F.2d 1481, 1483 & n.5 (D.C. Cir. 1988) (holding inability to disseminate information alone is sufficient basis for denying fee Waiver Request); Donald R. Patterson, 28 DOE ¶ 80,107 (2000) (denying fee waiver based on requester's failure to satisfy Factor C). Furthermore, passively making information available to anyone who might access it does not satisfy Factor C, because merely placing data in the public domain without analysis or explanation will not contribute to the public's understanding of the subject matter. See Van Fripp, slip op. at 11-12 (finding "it is plaintiff's burden to disseminate the requested information to the public and not, merely, to make it available"); Donald R. Patterson, supra (citing Van Fripp, supra).

Although Appellant asserts that she intends to distribute the requested information on the Internet, we have previously held that posting information on a website is a passive method of dissemination and insufficient for purposes of Factor C. See Barbara Schwarz, 27 DOE ______, Case No. VFA- 0623) (Oct. 20, 2000) (citing Donald R. Patterson, supra ("[P]lan to post information on a website . . . is a passive method of placing information in the public domain, compared to, for instance, distributing the material in a newsletter or journal.")). Because Appellant has set forth no evidence that she will use a means of distribution other than the Internet, she has not demonstrated the ability and intention to disseminate the requested information to the public at large. Thus, Appellant has failed to satisfy Factor C.

Under Factor D, the last element of the public interest prong, disclosure must contribute "significantly" to public understanding of government operations or activities. Because, as explained with regard to Factor A, Appellant has not shown that the requested information relates to specifically identifiable government operations or activities, release of the requested information will not significantly contribute to public understanding of government operations or activities. Thus, Appellant has failed to satisfy Factor D.

The foregoing analysis reveals that Appellant has not satisfied the public interest prong, and on that basis alone, should not be granted a fee waiver with regard to Requests One and Two. It is therefore unnecessary to proceed to analysis of the commercial interest prong.

In addition, to the extent Appellant claims entitlement to a fee waiver because she is indigent, and because she seeks the requested information for personal reasons, we note that neither basis is a proper consideration under the FOIA for purposes of making a fee waiver determination. See Ely v. United States Postal Serv., 753 F.2d 163, 165 (D.C. Cir. 1985) ("Congress rejected a fee waiver provision for indigents."); McClain v. United States Dep't of Justice, 13 F.3d 220, 220-21 (7th Cir. 1993) (finding fee waiver inappropriate where requester sought to serve private rather than public interest).

We also note that we have no jurisdiction to consider Appellant's assertion that the DOE/FOI failed to respond within the statutory time limits to her October 10, 2000 request for information. See 10 C.F.R. § 1004.8(a). In any case, the DOE/FOI's December 12, 2000 determination, and Appellant's appeal therefrom, renders her assertion moot.

Finally, we need not address Appellant's assertion that the DOE/FOI denied her two free hours of search time and 100 copies free of charge (the initial processing fees). It appears that the determinations dated December 12, 2000, from the DOE/FOI denied only Appellant's fee waiver requests, and not the initial processing fees provided for by 5 U.S.C. § 552(a)(4)(A)(ii), 10 C.F.R. § 1004.9(a), (b)(4) (quoted supra).

IV. Conclusion Based on the foregoing, Appellant has failed to show that disclosure of the requested information in Waiver Requests One and Two is likely to contribute significantly to public understanding of the operations or activities of the government. Therefore, Appeals One and Two will be denied.

It Is Therefore Ordered That:

(1) The Freedom of Information Act appeals filed by Barbara Schwarz on January 8, 2001, and assigned OHA Case Number VFA-0646, are hereby denied.

(2) This is a final Order of the Department of Energy from which any aggrieved party may seek judicial review pursuant to the provisions of 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: February 2, 2001

(1)The November 20, 2000 request was essentially a remailing of her October 10, 2000 request for information, which included a request for fee waiver.

(2)Because the supplements essentially reiterate the arguments set forth in Waiver Request One, however, the supplements likely would not have changed the DOE/FOI's decision to deny Appellant's request for a fee waiver. In addition, we note that Appellant apparently remailed the supplements to the DOE/FOI on December 26, 2000.

-- "When I go, I want go to peacefully in my sleep, like grandpa did, not screaming in terror, like the passengers in the car he was driving."

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