ML20090A839

Appeals Denial of FOIA Request for 27 Documents Referenced in 1975 EIS Re Facility & All Eis,Supplemental EIS or Similiar Environ Documents & FOIA Fee Waiver Decision

ML20090A839
Person / Time
Site:	Palo Verde
Issue date:	03/27/1984
From:	Ryan J STREICH, LANG, WEEKS & CARDON
To:	NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO)
References
FOIA-84-47, FOIA-84-A-36 NUDOCS 8407120136
Download: ML20090A839 (4)

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March 27, 1984 APPEAL OE INITIAL fotA DECISION 84 - A S t. E ( b/~ 4/ 7, Executive Director for Operations U.S. Nuclear Regulatory Commission ~~M ' d Washington, D.C. 20555 .

RE: APPEAL FROM AN INITIAL FOIA FEE WAIVER DECISION (FOIA 84-47) i

Dear Sir:

I By letter dated January 17, 1984, we made an initial -

Freedom of Information Act (FOIA) request on behalf of our client, John F. Long, for certain records of the Nuclear Regulatory Commission (NRC). (See Attachment "A"). In our letter, we asked that all scarcn and duplication costs be waived, and provided a substantial record in support of our fee waiver request.

Before making the above-referenced FOIA request to the NRC, we thoroughly examined all records on file at the Local Public Document Room (LPDR) here in Phoenix (i.e., the Business, Science and Technical Section of the Phoenix Public Library),

and were unable to locate any of the records we were seeking.

In addition, after receiving our FOIA request, Nina Toms, the NRC FOIA case officer who handled our request, caused a separate check to be made of the records on file at the Phoenix LPDR for responsive materials. In a telephone conversation with the undersigned on January 25, 1984, Ms. Toms informed us that it was her determination that the records requested were not avail-able locally. In sum, it was clear at the time the NRC began processing our request that the responsive documents had not been made available locally.

8407120136 840327 PDR FOIA RYAN84-A-36 PDR

3 SvnticH. LAMG, WEEKS & CARDON

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ATTO R N E Y S AT L AW Executive Director for Operations U.S. Nuclear Regulatory Commission March 27, 1984 Page Two Although we were in frequent contact with Ms. Toms during the processing of our request, we were never informed at any point that we could avoid fees by having responsive  !

documents sent directly to the Phoenix LPDR instead of to us.

As it was, the response to our request was mailed to us 11 days after the response date of February 2, 1984, assigned by the NRC FOIA case officer, Ms. Toms. (See enclosed response letter by J. M. Felton, dated February 13, 1784, at Attachment "B").

As an aside, it should be pointed out that a response mailed to the LPDR instead of directly to us would presumably not have been available to us until much later, resulting in an even '

greater transgression of the ten-day response period mandated by the Act.

A quick review of the above-referenced Felton letter of February 13, 1984, will reveal that Mr. Felton had ignored our fee waiver request and decided to bill us for reproduction costs. In fact, nowhere in his letter does Mr. Felton even mention our fee waiver request.

At our insistence, Mr. Felton finally agreed to make a formal, written determination on our request for a waiver of fees. His determination was set forth in his letter of February 27, 1984. (See Attachment "c"). Incredibly, despite the fact that he had been informed by the undersigned as well as by Ms. Toms that the responsive records were not available in the Phoenix LPDR, Felton denied our request for waiver of fees citing 10 C.F.R. 9.14a(g). Section 9.14a(g) provides:

The NRC will not waive the reproduc-tion costs for documents located or made available in the NRC Public Document Room or a local public docu-

- ment room in the absence of a compel-ling reason to do so.

In a telephone conversation with the undersigned Felton explained that because the NRC. planned to make the documents responsive to our request available at the Phoenix LPDR, he felt that Section 9.14a(g) was applicable in this case. The arbitrary and capricious nature of his decision and reasoning should-be glaringly apparent.

i L.______.__________.___.____________

STRCICH. LAMG. WCCKS 6 CA AOoM A Pl. Ort SS*Cma. at toc a* cas Att o R N g y- At L Aw Executive Director for Operations U.S. Nuclear Regulatory Commission March 27, 1984 Page Three In the first instance, the language of Section 9.14a (g) must refer to documents " located or made available in. . . a local public document room" at the time a given FOIA request is made. ~

Otherwise, the NRC would never waive reproduction fees; It could '

simply send documents responsive to each FOIA request to the LPDR as well as to the requester, and charge the requester repro-duction fees. Obviously, such a result flies in the face of the i clearly expressed intention of Congress that fees be waived if l furnishing the information requested can be considered as primarily benefiting the public. 5 U.S.C. 552 (a) (4) ( A) . Despite

, Mr. Felton's logic, Congress did intend that fees be waived in r certain cases.

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To illustrate the totally arbitrary and unjust nature i of the fee waiver decision in this case, it ic helpful to review the following facts:

1. Before making our request we deter-1 mined that responsive documents were not available in the LPDR; the NRC FOIA case officer reached the same i conclusion before processing our request.

2. We made a formal request for waiver i of all fees and provided a substantial record to support that request.

3. At no time during the processing of our request were we informed by the NRC that we could avoid duplication costs by having the responsive documents sent

! directly to the LPDR.

4. Because the NRC was not aware that the requested documents had not been made available in the LPDR, those documents would not now be available to the local public but for our FOIA request.

Mr. Felton's observation in his letter of February 27, 1984, that the responsive records had been sent to us directly instead of to the LPDR because.we had stated that we wanted the records as soon as possible, is totally specious. In the first instance, as noted above, we were never given the option of

SToticH. LANG. Wttas & CA ADoM l a **0't tanomak assot ta'*em ATTORN EY S AT L AW I Executive Director for Operations U.S. Nuclear Regulatory Commission March 27, 1984 Page Four

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1 avoiding costs by having the records sent directly to the LPDR instead of to us. Secondly, although we, like all FOIA requesters, were in a hurry to receive responsive records, we never asked for a response period any shorter than the ten-day period mandated by the Act. Thirdly, the responsive documents in this case were not even mailed to us until eleven days after j the ten-day response period had expired.

Finally, the incomprehensible manner in which the fee I

waiver decision has been handled in this case is illustrated by one additional example. Please note that in Mr. Felton's letter ,

of February 27, 1984, he stated that he was forwarding two l 3

additional records responsive to our request to the Phoenix LPDR.

He was asked to do so by the undersigned after he had explained his rationale for not waiving reproduction costs associated with documents provided earlier. In other words, we asked Felton not to send the final two documents to us, but to send them instead i to the LPDR. Incredibly, despite the wording of his letter and despite our request that he not send the documents to us directly, the final two responsive documents were included as enclosures to Felton's letter to us of February 27.

i For all of the foregoing reasons, it is clear that the i denial of our request for a waiver of fees by J. M. Felton was totally arbitrary and capricious. We request, therefore, a reversal of that denial and a waiver of all fees associated with FOIA request 84-47.

I Very truly yours,

- .JL.

Jands E.~ Ry n JAR:bem

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