ML18025A198

NRC-2018-000222 - Appeal Response Letter to FOIA/PA-2018-0072

ML18025A198
Person / Time
Issue date:	01/23/2018
From:	David Nelson NRC/OCIO
To:	Tarver J - No Known Affiliation
Shared Package
ML18025A159	List: ML18025A198
References
FOIA, FOIA/PA-2018-0072, NRC-2018-000222
Download: ML18025A198 (3)

Text

UNrrl!:Dl STATES NUCLEAR REGULATORY COMM!SSiON WASHINGrOO, IJC 2055Si -OOfn Mr. Juiiami Tauver, OOC 885530 Washington State Penitentiary IMU South H-2 1313 N 13t11 Avenue Walla Walla, WA 99362

Dear Mr. Tarveir:

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)

On behalf of the U. S. Nuclear Regulatory Commission (NR.C). ! am respoodling to your letters to the FOIA Officer, dated betw~n November 30, 2017 and! IDecemoorr 22, 2017, in which you appealed the above-referenced multiple agency responses in which :vour requests for fee waiverrs ware denied. Actillilgi on your appeals, i have reviewed the record in these cases and have determined., that the fee waivelf' denial in each 1 of them was appropriate.

Therefoire, ff frna\fe denied your appeals. Under the FOIA's administrative appeal provision, req1U1estera haive free right to administratively appeal an adverse determination an agency makes on their FOiA requests.

A fee waiver denial is oine such "adverse determination'" under the NRC's FO!A r~llJliaitno1r1s.

See 10 C.F.R 9.29(a). The adlmilllistralfrive appeal process is intendlied to pmmdle am1 aigerncy with an opportunity to review i1ts initial action taken in response to a request, to dlefcermi1J1e whether corrective steps are necessary.

\ 1 !Please i'llote thai:, because the agency's respp1mse to IFO!A-20118-00)111 wais issued within ten wooong dailfS of the NRC's receipt of your rsques~ no acimowledgment letter (ili'll wlhlich fee wah,er requests are generally addressed) was sent. There were no i'oos incurred in the processing of this request, so your fee waiiver request was moot Since tharE:? was no initial denial IOf your reqj1UJest fiDr a fee waiver. you have no basis UJptDn which to submii an appeal, NRC-2018-000220, with respecl to FOIA-2018-0017.

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:

al 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," 11 a member of a prison media group," or aa 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 "a member of the jailhouse media" and add that you "maintain a blog Qn 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 dist.inct 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 0 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 Bmaintain 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 uif 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 howthey 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 requirements, 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'Af an agency's published rules for making FOIA requests, including those pertaining to fees and fee waivers. See 5 U.S.C. 552(a)(3)(A).

I Tarver, J. A.icoordlingly, except where the NRC can detenmili1e ffirom f&ne fsoo of tlhe request, per 10 C.F .R 9.41(c), ihat the request is in the public interest becaiuse ift is likely to contribute significantly to public underatanding of the operatio111s or adiwies of 1tlhie !Federal Government and is not primm'fiiy in your oommercial interest, the i\lRC will not pir<OOeSS future fee waiver requests from yon.11 u111Jless and until the requests address the eigM re<q1U1ired factors from the NRC's regulation om fee waiver requests.

This is the final agency decision.

As :set foufil1 i111 the FO~ (5 U.S.C. 552(a)(4){B)), you may seek judicial review of this decision in the district OOl1.mrt of the United! States in the district in which you reside or have your principal place of business.

You may aflso seek judicial reviiaw in the district in which the agency's records are situated!

or iliil thle lDi1::,iirici:

of Columbia.

IFOIIA amendments created the Office of Government infomilaition Services (OGiS) to offer mediafcion services to resolve disputes beW!feen IFOIA JT\Bq]uestera aund !Federal agencies as a noll"iexciusive alternative to iitigaitiolTll.

Using OGIS s_eNices does not affect your right to pursue mrigation.

You mal{ oonract OGIS .in ai'"iy of the following ways: Office of Government lmmmatiollll SeNires National Archives and Reoords Adminisiraition 732 North Capitol Street, NW Washington, D.C. 20401 Email: ogis@nara.gov Telephone:

202-741-5770 Toll-free:

1-877-684-6448 fax: 202-141-5769