Case No. VFA-0288, 26 DOE ¶ 80,187

May 16, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner:Roderick L. Ott

Date of Filing:April 18, 1997

Case Number:VFA-0288

On April 18, 1997, Roderick L. Ott filed an Appeal from a March 24, 1997 determination by the Manager of the Office of Scientific and Technical Information (OSTI) of the Oak Ridge Operations Office of the Department of Energy (DOE). In that determination, the Manager denied the Appellant's request for information and his request for a waiver of fees under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004. In his Appeal, Mr. Ott asks that we order a new search for responsive documents and grant his request for a fee waiver.

I. Background

In his request for information, Mr. Ott sought copies of all documents "pertaining to him" by name from the files of 28 named OSTI employees. On March 4, 1997, Mr. Ott clarified his request by asking for copies of all documents created since October 1, 1988 pertaining to him by name, and involving DOE activities he participated in, from the files of the 28 named OSTI employees. He further stated that this request included "Franklin planner records, notes, correspondence, and any other miscellaneous records." In the March 24, 1997 determination letter, the Manager denied Mr. Ott's request because it did not "reasonably describe the records sought" to enable an OSTI employee familiar with the subject matter to locate the records with a reasonable amount of effort. The Manager also stated that Franklin planner records and personal notes are personal records and are not subject to the FOIA. The Manager also denied Mr. Ott's request for a waiver of fees because Mr. Ott did not state how disclosure of the requested information would benefit the public interest. Finally, the Manager stated that to continue processing Mr. Ott's request, OSTI needed two things: (1) information that would allow

it to properly identify the requested documents and (2) Mr. Ott's commitment to pay all fees associated with the processing of the request.

Mr. Ott appeals the "prolonging and denial" of his request and the decision to require him to pay search fees for the processing of his request. In his Appeal, Mr. Ott states that disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of the operations and activities of the government and that his request for information is not primarily in his commercial interest.

II. Analysis

The FOIA specifies two requirements for requests: that the request "reasonably describe" the records sought and that the requester make the request in accordance with an agency's published procedural regulations. 5 U.S.C. § 552(a)(3). A description of a requested record is sufficient if it enables a professional agency employee familiar with the subject area to locate the record with a "reasonable amount of effort." H.R. Rep. No. 876, 93rd Cong., 2d. Sess. 6 (1974), reprinted in 1974 U.S.C.C.A.N. 6267, 6271. "Broad, sweeping requests lacking specificity are not permissible" under the FOIA. Marks v. Department of Justice, 578 F.2d 261, 263 (9th Cir. 1977).

In reviewing the Appeal, we contacted OSTI to determine what would be involved to conduct a search for all documents since October 1, 1988 pertaining to Mr. Ott from the files of 28 named

OSTI employees, including "Franklin planner records, notes, correspondence, and any other miscellaneous records." A representative of OSTI estimated that it would cost at least $7,992 and consume more than 140 hours of search time to search the electronic mail records alone for documents "pertaining to" Mr. Ott. The OSTI representative stated that OSTI only has electronic mail records that go back one year, but that this search would require someone familiar with the system to look at each record individually. Furthermore, the OSTI representative also stated that there is no easy way of identifying information regarding Mr. Ott in its employees' files. Since Mr. Ott is an OSTI employee, documents "pertaining to him" and covering a wide array of subject matter could exist in multiple places in the 28 individuals' files. Thus, based on the way Mr. Ott worded his request, OSTI would have to search most of its office files for documents created since October 1, 1988 that might pertain to Mr. Ott. The OSTI representative also stated that he spoke with Mr. Ott approximately six times and requested that he narrow his request, but that Mr. Ott never did so.(1)

Under these circumstances, we find that Mr. Ott's request would require more than a "reasonable amount of effort" for OSTI to complete a search. Thus, we find that Mr. Ott's request is not reasonably descriptive as the FOIA requires. See Keese v. United States, 632 F. Supp. 85, 91 (S.D. Tex. 1985) (requests for all documents containing a requester's name are not "reasonably specific"). We also note that OSTI has indicated to us its willingness to confer with Mr. Ott to reformulate the scope of his request, should he desire to do so. See 10 C.F.R. § 1004.4(c)(2)(DOE should offer assistance in reformulating a non-conforming request). Accordingly, we must deny Mr. Ott's request for a new search for responsive documents.

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, the Act states,

Documents shall be furnished without any charge or at a charge reduced below the fees established under clause (ii) if disclosure of the 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 is not primarily in the commercial interest of the requester.

5 U.S.C. § 552(a)(4)(A)(iii) (1988 ed.). The burden of satisfying this two-prong test is on the requester. Larson v. Central Intelligence Agency, 843 F.2d 1481, 1483 (D.C. Cir. 1988) (per curiam). The DOE has implemented the statutory standard for granting fee waivers in its FOIA regulations. See 10 C.F.R. § 1004.9(a)(8). Those regulations set forth the following four factors that an agency must consider to determine whether the requester has met the first statutory fee waiver condition, 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:

(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; and

(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). Finally, in addition to satisfying these four factors, the DOE must also find that the requester did not request the information for use primarily in his own commercial interest. 10 C.F.R. § 1004.9(a)(8)(ii).

Factor A asks us to determine whether the subject of the requested documents concerns the operations or activities of the government. A fee waiver is appropriate only where the subject matter of the requested documents specifically concerns identifiable "operations or activities of the government." See Department of Justice v. Reporters Comm. for Freedom of the Press, 109 S. Ct. 1468, 1481-83 (1989); U.A. Plumbers and Pipefitters Local 36, 24 DOE ¶ 80,148 at 80,621 (1994) (Local 36). The documents Mr. Ott requested concern a specific DOE employee. It is possible that documents pertaining specifically to Mr. Ott are documents that concern identifiable "operations or activities of the government." However, since Mr. Ott did not provide additional information regarding the subject matter or narrow the subject matter request, it is impossible for us to determine whether the requested information meets this requirement. Thus, we find that Mr. Ott has not adequately shown that his request meets the conditions outlined in Factor A.

Factor B requires a consideration of whether the disclosure of information is "likely to contribute" to the public's understanding of government operations and activities. See Local 36; Seehuus Associates, 23 DOE ¶ 80,180 (1994) (Seehuus). The focus of this factor is on whether the information is already in the public domain or otherwise common knowledge among the general population. Seehuus, 23 DOE at 80,694. If the information is already publicly available, release to the requester would not contribute to public understanding and a fee waiver may not be appropriate. The information at issue here is probably not in the public domain since it relates only to one individual. However, without additional information regarding the subject matter, we cannot determine whether releasing the information would contribute to the public's understanding of government operations. We therefore find that Mr. Ott has not adequately shown that his request meets the conditions outlined in Factor B.

Factor C requires us to consider whether the requested documents would contribute to the understanding of the subject by the general public. To meet this test, the requester must have the ability and intention to disseminate this information to the public. James L. Schwab, 22 DOE ¶ 80,133 at 80,569 (1992). In the present case, Mr. Ott has not shown that he has the ability to disseminate information to a significant number of people in the general public.

In order to satisfy the requirements of Factor D, the requested documents must contribute significantly to the public understanding of government operations or activities. The Department of Justice has suggested the following test for this factor:

To warrant a fee waiver or reduction of fees, the public's understanding of the subject matter in question, as compared to the level of public understanding existing prior to the disclosure, must be likely to be enhanced by the disclosure to a significant extent.

1995 Justice Department Guide to the Freedom of Information Act 381 (1995); See Local 36; Seehuus. In the present case, Mr. Ott has again not shown how the information he requested would enhance the public's understanding of government operations or activities, let alone show that the material would advance such understanding to a significant extent.

In view of our evaluation of the foregoing factors, we find that Mr. Ott has not satisfied any of the four factors that an agency must weigh to determine whether the requester has met the public interest requirement. Accordingly, we must deny Mr. Ott's Appeal for a fee waiver.

It Is Therefore Ordered That:

(1) The Appeal filed by Roderick L. Ott on April 18, 1997 is hereby denied.

(2) 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: May 16, 1997

(1)*/ See May 5, 1997, May 8, 1997 and May 12, 1997 Memoranda of Telephone Conversations between Leonard M. Tao, Office of Hearings and Appeals Staff Attorney, and Lowell Langford, OSTI.