ML18025A193
| ML18025A193 | |
| Person / Time | |
|---|---|
| Issue date: | 01/23/2018 |
| From: | David Nelson NRC/OCIO |
| To: | Tarver J - No Known Affiliation |
| References | |
| FOIA, NRC-2018-000224 | |
| Download: ML18025A193 (3) | |
Text
UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTOi'i, DC 20!555- 0001 IN RESPONSE REFER TO:
NRC-2018-000206 (FOIA-2018-0057)
NRC-2018-000207 (FOIA-2018-0060)
NRC-2018-000208 (FOIA-2018-0061)
NRC-2018-000214 (FOIA-2018-0070)
NRC-2018-000215 (FOIA-2018-0077)
NRC-2018-000216 (FOIA-2018-0015)
NRC-2018-000217 (FOIA-2018-0013)
NRC-2018-000219 (FOIA-2018-0016)
NRC-2018-000220 (FOIA-2018-0017)
NRC-2018-000222 (FOIA-2018-0072)
NRC-2018-000223 (FOIA-2018-0073)
NRC-2018-000224 (FOIA-2018-0075)
- NRC-2018-000225 (FOIA-2018-0079)
NRC-2018-000226 (FOIA-2018-0081)
NRC-2018-000233 (NRC-2018-000002)
NRC-2018-000234 (NRC-2018-000022)
Mr. Julian Tarver, DOC 885530.
Washington State Penitentiary !MU Souilli IHl-2 1313 N 131h Avenue Walla Walla, WA 99362
Dear Mr. Tan,
er.
On behalf of the U. S. Nuclear Regulatory Commission (NRC), I am responding to your letters to the FOIA Officer, dated between November 30, 2017 and December 22, 2017, in which you appealed the above-referenced multiple agency responses in which your requests for fee waivers were denied.
Acting on your appeals, I have reviewed the record in *these cases and have determined that the fee waiver denial in each1 of them was appropriate. Therefore, I have denied your appeals.
- Under the FOIA's administrative appeal provision, requesters have the right to administratively appeal an adverse determination an agency makes on their FOIA requests. A fee waiveir denial is one such "adverse determirnaition'" ui"idler ttlhe NRC's FOIA regulations. See 1O C.F.R. ,9,29(a).
The administrative appeal process is interded to provide an agency wii:h an opportunity le review its initial action taken in response to a request, to deterrniD1e whether corrective steps are necessary.
r 1 Please note that, because the agency's response to FOIA-2018-0017 was issued ~hin ten working days.of the-NRC's receipt of your request, no acknowledgment letter (in \!lmlch fee wai\fer requests aura generally addressed) was sent. There were 010 f<SaS incurred in the processing of this request, so lfOLir fee waiver request was mool Since there was no initial denial of your request for a fee waiver, you have no basis upon which to submii an appeal, NRC-2018-000220, with respect to FOIA-20118-0017.
Tarver, J. In your initial request letters asking for a fee waiver, you did not provide any supporting information to justify the requested waiver. In each of your appeal letters, you have included the following representation: "I maintain a blog on reporting my past requests, and the information about the activities of the NRC. As a member of the jailhouse media, I am appealing the denial of my fee waiver."
In previous appeals you have filed regarding initial fee waiver denial determinations, you have based your appeals on representations that you were a "member of the prison media," "a member of a prison media group," or "a member of a prison media group that writes articles and publications." In my decision letters denying those appeals, I stated that it is insufficient for individuals simply to declare themselves members of the media. Rather, the burden is on FOIA requestell"S to provide substantiation for such claims.
As noted above, your current appeals reiterate that you are "a member of the jailhouse media" and add that you "maintain a blog on reporting [your] past requests and the information about the activities of the NRC." As I have explained in my earlier decisions, the FOIA defines a "representative of the news media" to mean "any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to tum the .raw materials into a distinct work, and distributes that work-to an audience." 5 U.S.C. 552(a)(4)(A)(ii}. The same provision of the statute also provides that the term "news" means information that is about current events or that would be of current interest. Your representation that you are a member of the "jailhouse media" because you "maintain a blog" that reports on NRC activities and your past requests for information on such activities, standing alone, does not demonstrate, with sufficient detail or proof, that the records requested in each of your requests will be the subject of editorial analysis and then shared with either the prisoner population or some other audience .
.Further, as I have also informed you in my responses to your previous appeals, simply qualifying as a representative of the news media does not automatically entitle you to a fee waiver. The FOIA-provides that fees should be waived or reduced "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). This statutory standard establishes a two-prong test: (1) a public interest requirement, and (2) a requirement that a requester's commercial interest in the disclosure, if any, be less than the public interest in disclosure. Requesters bear the burden of establishing how they satisfy both prongs by providing, in sufficient detail, information that will allow an agency to make an informed decision whether it can appropriately waive or reduce fees .. The eight factors set forth in the NRC's FOIA regulations, at 10 C.F.R. 9.41{b), must be addressed to provide the NRC with sufficient information upon which to make a fee waiver determination. Your initial requests have not addressed these factors at all, and your appeal lettei:s provide only limited information related to some of the factors while leaving several factors completely unaddressed. Accordingly, because you have provided insufficient information to permit me to make the findings necessary to support a fee waiver, I am denying your appeals.
Lastly, because your initial fee waiver requests have consistently not addressed any of the factors that the NRC's FOIA regulations require fee waiver applicants to address, despite repeated communications from the NRC {in responses to initial fee waiver requests and responses to appeals) informing you of these r~uirements, I have determined that the NRC will
,, no longer treat such requests receiv~ from you in the future as perfected fee waiver requests.
The FOIA requires that requesters follo'Af an agency's published rules for making FplA requests, including those pertaining to fees and fee waivers. See 5 U.S.C. 552(aX3XA).
Tarver, J. Accordili'llgiy, e)(capt where tile NIRC can determine from the face of the request, per 10 C.f.R 9.41(c), that the request is in the public inte1rest because it is likely to contribute signmcanUy t<<>
public understanding oif the operations oir aclMties of the Federal Gm,emmenit aJD1d is not primarily in you!!' oomonerciai interest, fue NIRC wm li1ot process future f!0e waiivell' requests frc01m you unless and unijl tthle fOOJlL!lesfts address the eight required factors from the NRC's regi..!liailtooll'1I on fee waiver requests.
This is the final agency decision. As set forth in the FO~ (5 U.S.C. 552(a)(4){!8)), you may seek judicial review of this decision in the distrnci: oouirt of the United States fin the district in which yell.I reside or have your pl!illllcipail plaice oif lbl1U1Si1r11ess. You may also seek judicial re'\/iaw in the dlisfurici in which tha agency's recoros arre sitll.Jlaitetdl ~r in the Oistrirci: of Columbiai.
- FOIA amendments created the Office oif Government Information Seruices (OG~S) to offer mediation seirvices to rrasolve olisl()lU!tes beltween FOIA requesters and !Federal aige111cies as a nonexclusive altemaitive to litigaitio111. Using OGIS services does not affeci: your righ't to plUlralUiie litigation. You may oontaici: OGiS .i(J"I a11n1y of ttne following ways:
Office of Government lmoinmatio111 Services National Archives and Records Adminisiraition 732 North Caipitol Street, NW Washington, D.C. 204\01!
Email: ogis@f!'lara.gov Telephone: 20.2-741-5710 Toii-free: 1-877-684-6448 Fax: 202-741-5769 s;nceDcl G IDavidl J. Nelson iCL--
Chiief information Officer Office of the Chief lnfo111'lJllatioro Officer