ML18025A189
| ML18025A189 | |
| Person / Time | |
|---|---|
| Issue date: | 01/23/2018 |
| From: | David Nelson NRC/OCIO |
| To: | Tarver J - No Known Affiliation |
| Shared Package | |
| ML18025A152 | List: |
| References | |
| FOIA, NRC-2018-000022, NRC-2018-000233 | |
| Download: ML18025A189 (3) | |
Text
l!JNIIVEIOJ $TATES NUClEM REGULATORY COMMISSION W~~G!J"OO, DC 2055lli -IIOO'I 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-201&-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)
I
- Mr. Juliain TaNei", OOC 885530 Washington Sltatie Peli'llitentiary !MU Soo..nfu H-2 1313 N 13111 Avenue Walla Walla, WA 99362 Dear Mr. Ta1Neir.
On behalf of the U. S. Nuclear ReglLBiaitouy Commission (NRC), I a.m responding to your letters to the FOIA Officer, dated be'l.weeli1l l\llovember 30, 2017 and December 22, 2017, in which yotl..l appealed the above-referenced multiple agency responses in which your requests for fee waivers were denied.
Acting on your appeals, I have reviewed fue raoord in these cases and have determined that the fee waiver denial in each1 of them was appropriate. Therefore, I have denied yoll!r appeals.
Under the FOIA's administrative aipipeal provision, re(lJuesters have the right to aidminisitrawely appeal an adverse detefITTl1inatio111 an agencl( makes on their FOIA requests. A fee waiwll' denifiail is one such "adverse determinanlflOlf/'i" IUJIJ'jjder filhe NRC's FO!A regu!aitions. See 10 C.F.R 9.29(a).
The administrafrive ap~I pirt0cess is iliiltell1ded to pmvidle an agency wiihl ain l0ipport1JJ1J11nfy tc review its initial action taken in response to a inequest, to determine whether wrreciwe steps airre necessary.
1 Please note tlhlat, because the agency's respoB1se to FOIA-20118-0017 was issued within ten womng days of the NRC's receipt of yo1.11r li'"OOJl.!esft, no acknowledgment letter (in which fee waiver requests aire generally addressed!) was sent. Toore were no foos incurred on the processing of this request, sio rov.nr fee waiver irequest was moot Since there '1/lfaS no initial denial of your roo,iuest for a fee waiver, lf\OJU have no basis upon which to sufaimii a1:11 appeal, NR.C-2018-000220, with respect to FO!A-20118-0017.
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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. n In previous appeals you have filed regarding initial fee waiver denial detenninations, you have based your appeals on representations that you were a "member of the prison mediat "a member of a prison media group/ or aa member of a prison media group that writes articles and publications. n 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 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 als,0 provides that the term "newsD 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 ~hared 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 folloY4 an agency's published rules for making FOIA requests, including those pertaining to fees and fee waivers. See 5 U.S.C. 552(aX3)(A).
Tarver, J. Aooordingiy, e}{cept where tine INIRC can determine firom the face of fue request per 1OC.F.R 9.41(c), that the request is in the public interest because it is likiely to contribute sigll'Bmfiteaff11My to public understanding of fue operailiio/Tlls OIT' aiciiwies of the Federal Govemme111t ai!J"id is not primariiy in your oommerrcial irnite1nest, the NRC will 111ot process ruiure fee waiver requesfrs from you unless and until ftfrlle r<e<Q11U1esfts aiddress the eight required factors from t!fne l\!IRC's reguiaition on fee waiver requests.
This is fue finail aigerocy olecisiolnl. As setfortlh in the FOIA (5 U.S.C. 552(a){4){B)), you m2y seek judicial review of this dedsio1r1 ii1 thle districi: court of fue United States un the district 01111 which you reside or haive your prilT'!cipail plaice of business. You may also seei< judiciail ire'1iew in the dlisfuriclt in which the aigerriicy's recordls aire situaitedl or iin the Distfiid of Columbia.
IFOIA ame1i1dme111ts icreatedl the Office of Government information Services (OGHS) to offer mediation services to resoh,a dnstolUltes between FOIA requesters and !Federal agencies as a nonexciusiv-e ailtemaitive to litigaiftnoll'll. UsiBllQJ OGIS services does not affect your right to purs!Llle litigatioll'l. You may oonraci OG!S ill'll any of the following ways:
Office olf Government ti1nfo1ITT1atio111 Services Nafcionial Archives a!J"idl Records Administration 732 North Caipitol Street, NW Washington, ID.C. 20401 Email: ogis@nara.gov Telephone: 202-741-5170 Toll-free: 1-877-684-64,.tffi IFwc 202-741-5169 Sincer*, .
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David J. Nelson Chief lnfoirmation Officer Office of the Chief i111f0lll1lll1lation Officer