ML18025A202
| ML18025A202 | |
| Person / Time | |
|---|---|
| Issue date: | 01/23/2018 |
| From: | David Nelson NRC/OCIO |
| To: | Tarver J - No Known Affiliation |
| References | |
| FOIA, NRC-2018-000216 | |
| Download: ML18025A202 (3) | |
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0~ UNITED STATES I:..} ... ~
NUCLEAR REGULATORY COMMISSION
.,"' WASHltilGTON, DC 20555 ~ 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-2018-00n}
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. Ju!iaun Tarver, OOC 885530 Washington State Penitentiary !MU South H-2 1313 N 13tti Avenue Walla Walla, WA 99362 Dear Mr. Tarveir.
On behalf of the U. S. Nuclear Regulatory Commission (NRC). nam irespooding to your letters to the FOIA Officer, dated betw~n November 30, 2017 and Decernber 22, 2017, irn 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 ali'lld have determined that the fee waiver denial in each1 of them was appropriate. Therefore, Bhave denied your appeals.
Under the FOIA's administrative appeal provision, requesters have the right to sdministratively appeal an adverse determination an agency makes on their FOIA requests. A. fee waiver denial is one such "adveirse determinaition'" under the NRC's FOIA regujatio111s. Se<a 10 C.F.R 9.29(a).
The admoniistrafrive appeal process is intended to provide are agency wifu an oppQrtunity i:<Ol re'1iew its initial aciior11 taken in response to a request, to determi1ne whether rorrecwe steps are necessary.
1 Please ll'ilote thai:, because the agency's response to FOIA-2018-0017 was issued 'lrihili'll ten woll'king
, days.of the NRC's receipt of your request, no acimowiedgment latter (in wlroid'i fee wai\fer requests are generally addressied) was sent. There were no faas incurred in the ~roressing of this irequest, so your fee waiver L"eQUest was moot Since ther~ was no initial denial of your riaquest for a fee waiver. you have no basis upon which to submia an appeal, NRC-2018-000220, with respect to FOIA-W118-0017.
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, am;! the information about the activities of the N~C. As a member of the jailhouse media, I am appealing the denial of my fee waiver. D 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 requesters to provide substantiation for such claims.
As noted above, your current appeals reiterate that you are ua 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 $8me 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 letters 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 received from you in the future as perfected fee waiver requests.
, The FOIA requires that requesters follo¥14 an agency's published rules for making FOIA requests, including those pertaining to fees and fee waivers. See 5 U.S.C. 552(a)(3XA).
Tarver, J. Acoomiirngi!y, e}{06Jlf)i wlhere ~e N~C can determine f!rom !th@ faoo oif filhiie reql\Jlest, per 10 C.F.R 9.41(c:}, tlhi~t the 1re<qi1UJest is in,the public interest becailUlse it is iik<ely toi oornfttrib!Llte sig111ificantly to public: urnderataindirrng of the operations or aic:tM!lies of the !Federal G10;vmmenit ialli1ld as not pirimaurillf' i111 your oommerciai! interest, the NRC wm not prroress futll.!lra fee waiiver requests friom you 1.mless amll l\.11111lfaW tll'rne requests address the,eight ireq1U1iriadl faciori; fmm tlih NRC'$ regulaitiol!'I Oll1l fee waiver req1U1es1ts.
This is fue fi!riail agency deciskiin. As set forth in the FO!A (5 U.S.C. 552{~}{4){!8)>, you may seek
]udliciail review of this decision ifill Uue disinc!t 00U1rt of fue United! States irrn fue dlistriici ill1l whic:!hl yoo O"esidle oir have yo1U11r pfiili1lcipail piece of business. Vol.II mailf aiiso seek jtuJdliciaii 1neview in the disfuric!t nn which the aigency's records are situ~teial or in the Oi$111'id: @f Co!umlbi~.
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Daivid J. Nelson ,
Chief lnfomniaition Officer Offire of the Chief Ursfiomnrnaition OffireO"
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