Documents related to fee status denial

Martin Pfeiffer filed this request with the Department of Energy, National Nuclear Security Administration of the United States of America.
Tracking #

19-00234-M

Due July 25, 2019
Est. Completion None
Status
Awaiting Response

Communications

From: Martin Pfeiffer

To Whom It May Concern:

1) THIS IS A FOIA REQUEST
This is a request under the Freedom of Information Act. Pursuant to the Freedom of Information Act, I hereby request copies of the following records:

Any and all emails, memos, memos of conversation, reports, written or recorded justifications, and other records related to the following FOIA requests that I filed in June of 2019 and in which I have been denied by NNSA my requested fee status which has been unproblematically granted to me for over a year now:
FOIA 19-00237-EW
FOIA 19-00234-M
FOIA 19-00231-DD
FOIA 19-00232-EW

Please be sure to include, but not limit yourself to, records relevant to the decision to deny my requested fee status and the process of doing so. You may restrict your search for responsive records to the period between May 1, 2019 and June 26, 2019.

As the FOIA requires, please release all reasonably segregable nonexempt portions of documents. If you withhold information or records then please identify the exemption through which you do so and advise me of my options for appeal under the law.

2) FEES AND FEE STATUS
I am a PhD student at the University of New Mexico and the information requested is for academic and public education purposes, including my PhD dissertation project, and not primarily for commercial use. Furthermore, I will make responsive records available to the public via my academic publications and presentations; on social media (I have over 14,000 Twitter followers); and through the News Site MuckRock.com. Please note that you can access my UNM student profile page at the following url: https://anthropology.unm.edu/people/grad-students/profile/martin-pfeiffer.html.

Therefore, as per Sack v. DOD (2016) I qualify for educational institution fee status and ask that you process my request accordingly. I refer to Sack v. DOD (2016) in which the U.S. Court of Appeals for the D.C. District explicitly repudiated the narrowness of the section of the OMB's 1987 Fee Guidelines that deal with criteria for granting educational institution fee status (see pages 9-12 of the full decision): "[i]n our view, the OMB's rule for student requests is inconsistent with the statute" [referring to FOIA] (p. 11).

From the summary of the Court's Opinion (p. 1):
“We disagree with the Government’s slicing of the term “educational institution." If teachers can qualify for reduced fees, so can students. Students who make FOIA requests to further their coursework or other school-sponsored activities are eligible for reduced fees under FOIA because students, like teachers, are part of an educational institution." [underline added]

If fees are assessed then I agree to pay fees up to $30 without additional notice. In the event that there are fees exceeding $30 then please inform me of the total charges in advance of fulfilling my request.

I reserve the right to request news media fee status in the future.

RECORDS AND COMMUNICATIONS
I hereby request that all records generated by this request be delivered in electronic format via email or, if that is not possible, on CD-ROM if available.
Please do not hesitate to contact me (preferably via email) with any questions or information. You may, and I request that you do so, engage in rolling release of responsive documents.

CONCLUSION
I look forward to receiving your response within the twenty day statutory period. Thank you for your anticipated cooperation and time in this matter.

Regards,
-marty-
Martin Pfeiffer

From: Department of Energy, National Nuclear Security Administration

Dear Mr. Martin Pfeiffer, The Office of Hearings and Appeals issued a Decisionand Order dated July 11, 2019 indicating that prior to a fee categorydetermination, the agency must clarify your intended use of the recordsrequested. Therefore,  please clearly identify your intended use for therequested records in this FOIA matter. Please respond no later than July 19, 2019. If we do notreceive a response from you by , we will considerthe lack of response as a withdrawal of your request, and it will be closed. July 19, 2019 Respectfully,
Delilah Perez
Government Information Specialist
NNSA ABQ-Complex
Delilah.Perez@nnsa.doe.gov (mailto:Delilah.Perez@nnsa.doe.gov)

From: Martin Pfeiffer

Ms. Perez,

Please find attached a copy of the appeal you reference for your convenience.

I have already stated my intended use of these materials in my request and, as a matter of patient courtesy, I will restate and slightly expand them here: as part of my PhD research and for analysis and dissemination through my social media, scholarly writing, journalistic writing, and inclusion in my free, publicly accessible archive of research materials. This means you have an option of alternately assignment me a category as a representative of the news media as I have the intent and ability to self-publish and acquire other publishing outlets.

As indicated in the appeal you reference (included here for your reference) as per 10 C.F.R. 1004.2(c)--as well, I would add, as the 8th and 14th amendments to the U.S. Constitution because Due Process matters!--if you wish to challenge my claims of how these documents will be used then you will provide me with the basis for your challenge or questions so that I may answer your challenge and questions properly.

You are not allowed to endlessly demand I justify my fee status when I have made a prima facie case for it without offering to me the grounds on which you are considering denying it and I am more than confident that OHA will agree as per the appeal decision you reference (included here for your convenience).

Therefore: please either inform me that this message meets your requirements and grant me my requested fee status or provide me with the information necessary for me to clarify my use of these records to your satisfaction. If you are unable or unwilling to do either of these things then please inform me as well as my options for appeal at which point I will send off an appeal to OHA.

Please pardon the shortness of this letter; I have made clear in other communications how I regard these continued and repeated failures to properly follow NNSA/DOE policy and FOIA statute.

I am,
-marty-
Martin Pfeiffer

From: Martin Pfeiffer

Ms. Perez,

My apologies for any confusion. I meant to refer to the 5th & 14th, not 8th, amendments.

Regards,
-marty-
Martin Pfeiffer

From: Martin Pfeiffer

Ms. Perez,

I am informing you that I have filed an appeal with the DOE Office of Hearings and Appeals regarding your message to me (July 12, 2019) which you sent me in response to the decision rendered by OHA in Case Nos. FlA-19-0020-23.

I am,

Martin Pfeiffer

From: Martin Pfeiffer

Ms. Perez,

The Office of Hearing and Appeals has declined to consider your most recent message an action which I can appeal at this time.

I maintain that you have not provided me the necessary information required to adequately respond to your questions about my fee status. As such, I am unable to provide a concise and cogent response. Therefore, in response to your most recent message, you will find attached a copy of the appeal I attempted to file with OHA regarding your most recent message. It includes a lengthy discussion of my fee status and use of records. Refer to that discussion--including my description of my Patreon--as the best good-faith response possible given your failure to provide me details regarding your concerns and what you feel should be clarified.

I consider this matter--of clarifying my intent for the use of documents in this request--closed unless you are willing to provide specific and detailed questions and concerns about my use of records in this request.

Therefore, I once again point out that I meet all of the criteria for assignment of my requested fee status of educational institution (or alternately media) and I demand you grant me one of those statuses accordingly. If you are unwilling or unable to do so then notify me as soon as possible along with a detailed justification for doing so and my options for appeal.

I am,

Martin Pfeiffer

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