NPS FOIA Fee-Related Decisions
| Submitted | Nov. 19, 2015 |
| Est. Completion | None |
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Communications
From: Donald Triplett III
To Whom It May Concern:
This is a request under the Freedom of Information Act. I hereby request the following records:
1. With respect to all FOIA requests in FY2014 and FY2015 within the National Park Service which included a request for a fee waiver that was denied: a copy of the original request, the letter denying the fee waiver, and any letter outlining a fee estimate provided, if any.
2. With respect to all FOIA requests in FY2014 and FY2015 within the NPS that were denied for fee-related reasons, other than those already provided above: a copy of the original request, any letter outlining the fee estimate provided, and any other letter to the requester regarding the denial, if any.
3. With respect to all FOIA requests made by news-media or "other" requesters in FY2014 and FY2015 within the NPS that were provided fee estimates in excess of $10,000, other than those already provided above: a copy of the original request, and the letter outlining the fee estimate provided.
4. With respect to all FOIA requests made by news-media or "other" requesters in FY2014 and FY2015 within the NPS Southeast Region that were provided fee estimates in excess of $250, other than those already provided above: a copy of the original request, and the letter outlining the fee estimate provided.
The requested documents will be made available to the general public, and this request is not being made for commercial purposes.
I request a waiver of all fees related to the processing of this request, as the information being requested will shed light on the operations and activities of the government, is not being made for commercial purposes, and will contribute significantly to the public understanding of those operations and activities through dissemination of the information provided to a "...reasonably broad audience of persons interested in the subject." (Cause of Action vs FTC, NO. 13-5335, D.C. Circuit Court of Appeals)
In the event that fees cannot be waived, please if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.
Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 20 business days, as the statute requires.
Sincerely,
Donald Triplett III
From: Charis Wilson
United States Department of the Interior
NATIONAL PARK SERVICE
12795 W. Alameda Parkway
P.O. Box 25287
Denver, Colorado 80225-0287
November 24, 2015
A7221 (2550)
Donald Triplett III
c/o MuckRock
Dept. MR 22243
PO Box 55819
Boston, MA 02205-5819
Dear Mr. Triplett:
Reference: FOIA Fee Waivers and Fee Estimates
Subject: Freedom of Information Act (FOIA) Request NPS-2016-00142
This letter is in reference to the FOIA request you filed on November 19, 2015, in which you requested:
1. With respect to all FOIA requests in FY2014 and FY2015 within the National Park Service which included a request for a fee waiver that was denied: a copy of the original request, the letter denying the fee waiver, and any letter outlining a fee estimate provided, if any.
2. With respect to all FOIA requests in FY2014 and FY2015 within the NPS that were denied for fee-related reasons, other than those already provided above: a copy of the original request, any letter outlining the fee estimate provided, and any other letter to the requester regarding the denial, if any.
3. With respect to all FOIA requests made by news-media or "other" requesters in FY2014 and FY2015 within the NPS that were provided fee estimates in excess of $10,000, other than those already provided above: a copy of the original request, and the letter outlining the fee estimate provided.
4. With respect to all FOIA requests made by news-media or "other" requesters in FY2014 and FY2015 within the NPS Southeast Region that were provided fee estimates in excess of $250, other than those already provided above: a copy of the original request, and the letter outlining the fee estimate provided.
You had also requested a statutory fee waiver. In accordance with 43 CFR 2.45(a)(1) the National Park Service will grant a fee waiver when disclosing the information is:
1. In the public interest because it is likely to contribute significantly to public understanding of government operations or activities, and
2. Not primarily in your commercial interest.
In determining whether your request is in the public interest, the National Park Service considered the following criteria:
(1) How the records concern the operations or activities of the Federal government,
(2) How disclosure is likely to contribute to public understanding of those operations or activities,
(3) How disclosure is likely to significantly contribute to the understanding of a reasonably broad audience of persons interested in the subject, as opposed to your individual understanding, and
(4) How the public's understanding of the subject in question will be enhanced to a significant extent by the disclosure.
The records you have requested relate to the processing of Freedom of Information Act (FOIA) requests by National Park Service employees. Accordingly, your request the first public interest criterion.
In your request you information documenting that you have the skills or abilities to analyze or disseminate the requested information in such a manner so as to be informative to a reasonably broad audience. Additionally, while you state that releasing this information to you would contribute significantly to the public understanding of NPS FOIA operations and activities through dissemination of the information provided, you failed to provide any specifics as to how the information you are requesting would be distributed. We are therefore unable to determine how the release of this information to you would be likely to contribute to the public’s understanding of the operations or activities of the National Park Service rather than your personal understanding. Accordingly, your request fails to meet the second criterion.
Your request for a fee waiver request also failed to address whether and to what degree the information you are requesting has been previously released. For example, information on the number of fee waivers granted by the National Park Service in FY2014, as well as information documenting the number of requests that were closed due to fee related reasons, has been previously published within the FY2014 <https://www.doi.gov/foia/DOI-FOIA-Annual-Reports> Department of the Interior Freedom of Information Act Annual Report. In addition the information for FY2015 report is expected to be published in December 2015 and made available on that same site. It is therefore unclear how releasing the information you have requested would significantly contribute to the understanding of a reasonably broad audience of persons, as opposed to your own understanding. Accordingly your request fails to meet the third criterion.
For similar reasons, it also fails to meet the fourth criterion. We have no information indicating that releasing the information would be primarily in your commercial interest.
In order to grant a fee waiver, the applicant’s request must meet all of the requirements listed above. Because your request fails to meet all four criteria your request for a fee waiver is denied.
Pursuant to regulation, 43 CFR 2.47 the following person is responsible for this decision:
Charis Wilson
NPS FOIA Officer
Additionally the following attorney was consulted during the preparation of this response:
Jason Waanders, Attorney-Advisor, Office of the Solicitor
U.S. Department of the Interior, Washington, D.C.
In your request, you asked that if your fee waiver request was denied that we provide you with a fee estimate before processing your request. We have determined that the estimated costs to process your request comes to $260.45. This was calculated as follows:
$76.25 = (3.25 hours of Managerial Search Time after credit for 2 free hours)
$147 = (3.5 hours Professional Search Time)
$37.20 = (348 pages @ $0.15/page, after credit for 100 free pages)
$260.45 Total Estimated Processing Charges
Because the estimated fees exceed $250 and we do not show any history of your having paid FOIA fees in the past, we are required under 43 CFR 2.50 to collect payment for the full amount before we can begin processing your request. If you are still interested in obtaining these records, please make your check payable to the National Park Service and mail it, along with a copy of this letter, to my attention at the address above. In accordance with 43 CFR 2.51(c), if we do not hear from you in writing within 20 workdays, we will assume you are no longer interested in this matter and will close the file on your request.
You have the right to modify your request in order to reduce the estimated fees, for example limiting your request to a single fiscal year or specific geographic area, such as the Southeast Region. You also have the right to appeal this fee waiver determination, if your request has been denied and our fee estimate, if you feel it has been incorrectly calculated. You may file an appeal by writing to:
Freedom of Information Act Appeals Officer
Office of the Solicitor
U.S. Department of the Interior
1849 C Street, NW
MS-6556-MIB,
Washington, D.C. 20240
Your appeal must be received no later than 30 workdays after the date of this response. The appeal should be marked, both on the envelope and the face of the appeal letter, with the legend "FREEDOM OF INFORMATION APPEAL." Your appeal should be accompanied by a copy of your original request and copies of all correspondence between yourself and the National Park Service related to this request, along with any information you have which leads you to believe our decision is in error. Please note appeals received after 5 p.m. EST will be considered to have been received as of the following day.
Also as part of the 2007 OPEN Government Act FOIA amendments, the Office of Government Information Services (OGIS) was created to offer mediation services to resolve disputes between FOIA requesters and Federal agencies as a nonexclusive alternative to litigation. Using OGIS services does not affect your right to pursue litigation.
You may contact OGIS in any of the following ways:
Office of Government Information Services (OGIS)
National Archives and Records Administration
Room 2510
8601 Adelphi Road
College Park, MD 20740-6001
E-mail: ogis@nara.gov
Phone: 301-837-1996
Fax: 301-837-0348
Toll-free: 1-877-684-6448
Please do not hesitate to contact me with any further questions or concerns. I can be reached at the address above or by phone at 303-969-2959. I can also be reached via e-mail at charis_wilson@nps.gov.
Sincerely,
C.
____________________
Ms. Charis Wilson, Ph.D., CRM
NPS FOIA Officer
12795 W. Alameda Parkway
PO Box 25287
Denver, CO 80225-0287
303-969-2959
Fax: 303-969-2557
1-855-NPS-FOIA
"What we find changes who we become." - Peter Morville
"The historian works with records...there is no substitute for records: no records, no history." - Paraphrasing Langlois & Seignobos (1903)
"Let us be guardians, not gardeners" - Unknown, From 1963 Living Wilderness editorial - Attributed to Adolph Murie
From: Donald Triplett III
November 24, 2015
Dear Ms. Wilson:
Thank you for your reply.
First, before I question the denial of my fee waiver request, just so I understand correctly, it is going to take almost 9 hours of search time to find the requested records?
The amount of search time seems ridiculously high, as does the 348 pages, given that the FOIA annual report for FY2014 (which I have already read prior to sending this request) shows only 7 fee waivers were denied, and only 16 requests were closed due to "fee-related reasons". This is only 23 requests in FY2014, and of these requests, I am only asking for the initial request itself, a copy of the letter denying the fee waiver (if one was requested), and a copy of the fee estimate. Note, I am NOT requesting any further correspondence, nor am I requesting a copy of any records that were responsive to the requests in question. Furthermore, for FY2015, I'm assuming that there also weren't very many requests that were denied fee waivers or closed for "fee-related reasons", but perhaps you can correct me on this seeing as how you are likely responsible for gathering this information and forwarding it on to the DOI's FOIA officer for inclusion in the upcoming annual report.
The third and fourth portions of my request, which basically request copies of fee estimates which total more than $10,000 (and $250 in the SER), should not take any time at all to find either, as it can easily be found by searching your department's Electronic FOIA Tracking System (EFTS).
As to my fee waiver, although the decision has already been made, I will note that the recent D.C. Circuit Court's decision in Cause of Action vs FTC makes clarifies that, as summarized by the Reporters Committee for Freedom of the Press, "...fee waivers should be liberally awarded by agencies to persons and organizations that disseminate such information to the public. Its opinion suggests that as long as the requester seeks information that will significantly help an interested segment of the public understand what the government is doing, and that information is somehow disseminated online, the requester should be given a fee waiver as long as the request is not primarily in their commercial interest." (http://bit.ly/1NbQeEr)
I believe that I meet the second and third criterion for a fee-waiver, as the segment of the public who is or would be interested in how the National Park Service processes FOIA requests might want to know and see exactly why, for example, that only 7 out of 59 fee waivers were denied in FY2014. As to how the information would be disseminated, I would be making the documents available on MuckRock.com, and publicizing them, along with editorial comment, to individuals who may be interested in how the National Park Service discourages some requesters by denying their fee-waivers and sending them exuberantly high fee estimates.
Despite meeting all the criterion for a fee-waiver, the National Park Service perhaps should consider a discretionary fee-waiver for this request, simply given the nature of the request (about denied fee waivers and high fee estimates).
If, after noting the above, you hold firm in both your position on the denial of my fee waiver and the high fee estimate, I would hope you could at least see the incredibly irony given, once again, the nature and subject matter of the request.
I would appreciate a reply by sometime next week, so I will know if I need to appeal the fee determinations. In the meantime, I hope you have a great Thanksgiving weekend.
Sincerely,
Donald G. Triplett, III
From: Wilson, Charis
Mr. Triplett,
According to my review of data in our FOIA tracking system there are 58
requests that may be responsive to one or more items in your request. If
we assume that it would take approximately 10 minutes per request to search
for the case file for each request and look through the file to identify
and retrieve the incoming request, the fee waiver denial, and the fee
estimate correspondence.
If we assume that it will take ten minutes to search each of those 58 case
files for responsive records, the total estimated search time comes to 570
minutes, which translates to 9.5 hours. As far as page counts, that
estimate is based on an estimate of 2 pages each for the original request,
a fee waiver denial, and a fee estimate letter.
The actual page counts could be higher or lower, e.g. I recently received
an incoming request that was ten pages long and another that was only one
page. Please note, if the actual costs to process your request are less
than the amount you pay in advance, the difference will be refunded to
you. Additionally, if it turns out the actual costs are higher than the
estimated amount, we will process the request up to the amount you have
paid and will then request a written assurance of payment for the
additional amount before we would be able to begin processing your request.
Sincerely,
C.
____________________
Ms. Charis Wilson, Ph,D., CRM
NPS FOIA Officer
12795 W. Alameda Parkway
PO Box 25287
Denver, CO 80225-0287
303-969-2959
Fax: 303-969-2557
1-855-NPS-FOIA
"What we find changes who we become." - Peter Morville
"The historian works with records...there is no substitute for records: no
records, no history." - Paraphrasing Langlois & Seignobos (1903)
"Let us be guardians, not gardeners" - Unknown, From 1963 Living Wilderness
editorial - Attributed to Adolph Murie
From: Donald Triplett III
Ms. Wilson,
Thank you for your email and for the further clarification.
I just have a couple more questions:
1. Of those 9.5 hours, why there is a need to have both Managerial staff and Professional staff search instead of just Managerial staff, or why Clerical staff can't search for these documents at all?
2. How much of a difference in price would it make if I struck the 4th portion of my request (requests over $250 in SER)?
Sincerely,
Donald G. Triplett, III
From: Wilson, Charis
Mr. Tripplet,
The rates are based on the GS-levels of the staff who will be doing the
actual work. The staff within NPS who handle FOIA are primarily GS-12s and
GS-13, most of whom handle FOIA as a collateral duty, which means they do
not have any "clerical staff" to handle the work for them. Per 43 CFR 2.41
<http://www.ecfr.gov/cgi-bin/retrieveECFR?gp=&SID=3cf2d9487b3873a721f90f5f7513c333&r=PART&n=43y1.1.1.1.2#se43.1.2_141>
GS-12's are considered Professional Staff and are billed at the rate of
$42/hour, while GS-13 staff are classified as Managerial and bill at the
rate of $61/hour. Additionally, actual search costs will be tabulated in
fifteen minute increment intervals.
Eliminating item 4 from your request would only remove four requests. That
would reduce the estimated search time by approximately 3/4 of an hour and
copies charges by $3.60.
Sincerely,
C.
____________________
Ms. Charis Wilson, Ph,D., CRM
NPS FOIA Officer
12795 W. Alameda Parkway
PO Box 25287
Denver, CO 80225-0287
303-969-2959
Fax: 303-969-2557
1-855-NPS-FOIA
"What we find changes who we become." - Peter Morville
"The historian works with records...there is no substitute for records: no
records, no history." - Paraphrasing Langlois & Seignobos (1903)
"Let us be guardians, not gardeners" - Unknown, From 1963 Living Wilderness
editorial - Attributed to Adolph Murie
From: Donald Triplett III
Ms. Wilson,
Thank you for the additional information.
I continue to disagree with the fee determinations made in this request, therefore, be advised that I will be appealing within 30 workdays of the letter denying the fee waiver.
Sincerely,
Donald Triplett, III
From: Donald Triplett III
January 6, 2016
Freedom of Information Act Appeals Officer
Office of the Solicitor
U.S. Department of the Interior
1849 C Street, NW
MS-6556-MIB
Washington, D.C. 20240
FOIA.Appeals@sol.doi.gov
Via E-mail
FREEDOM OF INFORMATION APPEAL
To Whom It May Concern:
This is an appeal of the fee waiver denial and estimate provided of request NPS-2016-00142 made to the National Park Service (NPS). This appeal is being timely made within the 30 working day time period required.
The request, which was relatively simple in nature, was for copies of requests in FY14 and FY15 which had fee waivers denied and/or were provided with high fee estimates that serve only to discourage requesters from seeking information from a supposedly transparent government.
According to the D.C. Circuit Court opinion in Cause of Action v. FTC, fee waivers should be granted liberally to individuals and organizations which disseminate the information received to the public. As the Circuit court held, “…posting content to a public website can qualify as a means of distributing it.”
The court further rejected the District court’s opinion that “A requester that ‘performs its activities to aid in government accountability…[is] more like a middleman for dissemination to the media’ than a representative of the news media.” Although the Circuit held that merely posting the documents does not qualify for news media status, they noted that a requirement for “distinct [editorial] work” created using the documents can be fulfilled simply by “issuing press releases to media outlets in order to reach the public indirectly.”
As I’ve stated in the request, the documents received will be posted on MuckRock.com. The documents will be summarized and used as part of an investigation into the discriminatory practices that are employed by the National Park Service in processing FOIA requests. The results of this investigation will be shared with media outlets and other parties interested in FOIA processing via press releases or similar methods. As an example, requests which I’ve previously made have been shared via MuckRock and other methods with news media, and made the news in several well known outlets; my history with disseminating information received should be all that is necessary. (See bit.ly/1mFjWIu, bit.ly/1Phfd6h) Therefore, I contend that I qualify for news media classification in this request, as well as a waiver of any further fees (duplication) which may be incurred as a result of processing.
In addition, it is my belief that the fee estimate provided is overblown. The fee estimate for this request totals (coincidentally) just over the $250 threshold which requires requesters to prepay fees before processing, an estimate of $260.45 which includes the two free hours of search time and 100 free pages.
The NPS believes that this request will require 8.5 hours of search time, divided between Managerial and Professional, which was calculated from an estimate of 10 minutes of search time per case file for each of 58 requests. I believe this estimate to be excessive, in both the amount of time required to search each file, and the GS levels of the staff who will be doing the work.
The EFTS system used by the NPS for processing requests should have all of the case documents I requested (the main request and certain communications with the requesters) listed (or else stored completely electronically), and therefore, it should not take hardly any time at all to search through the case file for the particular documents. I would further remind the Department that only search time can be charged, and not the time spent reviewing the documents.
Furthermore, I disagree with the amount of requests that would be responsive to this request. In FY2014, according to the Department of Interior’s (DOI) Annual Report, the NPS denied only 7 of 59 requests for a fee waiver. This is a similar amount to previous years; the NPS denied 5 of 40, 3 of 27, 5 of 28, and 5 of 24 requests in fiscal years 2013, 2012, 2011, and 2010 respectively. In addition, the NPS denied only 16 requests for fee related reasons in FY2014, and 23 in FY2013; it goes without question that some of these denials may also have included a fee waiver request, which was denied.
According to Charis Wilson, there are 58 FOIA cases responsive to my request; therefore, either the NPS denied a historic number of fee waivers denied in FY2015, case files which are not responsive to my request are being included, or there are almost 40 requests which were classified as other or news media requests denied for fee related reasons or have estimates over $10,000 and did not have a request for a fee waiver.
The continued utilization of the fee system to deny my access to records under the Freedom of Information Act by the National Park Service is discriminatory, arbitrary, and capricious. For the reasons stated above, I request that this appeal be granted, my fee classification be changed, a fee waiver be granted, or else the NPS be required to conduct a second search for records and revise their excessive fee estimate. I further request that this appeal be acknowledged within the 20-day statutory time limit required by FOIA, and I be given a tracking number and kept updated throughout the time my appeal is decided.
Sincerely,
Donald G. Triplett, III
Files
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