FOIA Appeal AF – Public Interest and/or News Media Fee Waiver

Iris W. Seals, GS-11, DAF
FOIA/PA Manager
AFCEC/CTP
2261 Hughes Ave Suite 155
JBSA Lackland TX 78235-9853
Phone: 210-395-8221
[email protected]

13 March 2013

BY FAX TO: 210-395-8012

FOIA Appeal
Denial of Public Interest and/or News Media Fee Waiver

Dear Ms. Seals:

I am appealing your decision to deny my request for Fee Waiver on the following FOIA requests: 2013-02349-F, 2013-02366-F, 2013-02635-F, 2013-02636-F, and 2013-02637
(See pages 7 and 8).

Public Interest Fee Waiver

I request a Public Interest Fee Waiver for each of the aforementioned FOIA requests since disclosure of the [requested] information is in the public interest because it is likely to contribute significantly to the public’s understanding of the operations or activities of the government and I have NO commercial interest in the requested information, as defined in DOD5400.7-R_AFMAN 33-302 § C6.1.4.1.and 5 U.S.C. § 552(a)(4)(A)(iii).

Based on the following, the requested records clearly meet all six of the requirements for a Public Interest Fee Waiver set forth in the Department of Defense Freedom of Information Act Handbook § 286.28 and the DOJ Guide to the FOIA § Fees and Fee Waivers:

1) The subject of the request. § C6.1.4.3.1.1.
All of the FOIA requests were for previously unreleased records that pertain to the environmental contamination at former George Air Force Base, CA, Superfund ID: CA2570024453. The requested records are necessary to establish the “Completed Exposure Pathways” for the hazardous materials at George AFB and will answer the following questions:

a) When did the Air Force (AF) have knowledge that a problem existed and did its employees withhold information from the Agency for Toxic Substances and Disease Registry (ATSDR) for its Health Assessment of George AFB?
b) What deed restrictions were placed because of groundwater and soil contamination?
c) When did the AF place deed restrictions because of groundwater and soil contamination?
d) What were/are the locations of the supply wells to establish their relationship to the contamination and groundwater flow?
e) Did AF employees knowingly mislead the ATSDR and the public?

2) The informative value of the information to be disclosed. § C6.1.4.3.1.2.
George Air Force Base had about 14 Installation Restoration Program (IRP) sites (effluent from the base wastewater treatment plant containing industrial waste, oils, and solvents was used to water the golf course from 1965 until 1 December 1981; unpermitted dumpsites and unpermitted burn pits) within 500 feet to a mile upstream of the drinking water supply wells for George AFB, Adelanto, private homes, and the former Victor Valley Country Club. This provided a possible exposure pathway to tens of thousands of people through contaminated drinking water. The Air Force failed to notify the Agency for Toxic Substances and Disease Registry (ATSDR) of these potential exposure pathways for the Health Assessment of George AFB.

3) The contribution to an understanding of the subject by the general public likely to result from the disclosure. § C6.1.4.3.1.3.

a) The release of the unredacted documents is necessary to establish the nature and extent and the “Completed Exposure Pathway(s)” for the contamination at George AFB.
b) The disclosure is the first step in requesting a new Health Assessment by the ATSDR.
c) The contaminated drinking water at George AFB created a potential exposure to tens of thousands of civilians, and military personnel and their family members over the years.

4) The significance of the contribution to public understanding. § C6.1.4.3.1.4.

a) The current belief is “On-site groundwater has never been used as a source for drinking water at George AFB and no supply wells are expected to be installed there in the foreseeable future. …” This is a direct quote from the ATSDR’s 1 December 1998 report “Health Assessment for George AFB,” section “Evaluation of Groundwater Exposure Pathway”.
b) The AF knew that the ATSDR came to a flawed conclusion in their 1 December 1998 report “Health Assessment for George AFB”. This was because the ATSDR was not supplied with the information (by the AF) and/or did not fully understand of the nature and extent of the contamination, locations of the IRP sites, hydrology data (direction of the groundwater flow), and the locations of the water supply wells for George AFB, Adelanto, private homes, and the former Victor Valley Country Club. Because the AF did not correct the ATSDR during the Peer Review / Public Comments period or after the report was published in 1998.
c) The AF knew that the groundwater flows northeast under George AFB’s Southeast Disposal Area (SEDA) and OT-22 (a.k.a. S-12, the golf course), directly to the supply wells for George AFB, Adelanto, private homes, and the former Victor Valley Country Club. While OT-22 is adjacent to the supply wells, it should be considered to be upstream of these wells because of its close proximity to them and because it is in the zone of influence (cone of depression) of this large cluster of high volume wells.
d) A new Health Assessment is necessary before the AF and/or ATSDR will notify the U.S. Department of Veterans Affairs (VA) and former George AFB personnel of their possible exposure to potentially life threatening environmental contamination at George AFB.

5) Disclosure of the information is not primarily in the commercial interest of the requester. § C6.1.4.3.2.

a) As stated in my FOIA requests section titled Fee Waiver, “…I have NO commercial interest in the requested documents and the requested records will be posted, free of charge, on www.GeorgeAFB.Info. …”

6) Which is greater, the identified public interest or the identified commercial interest.

a) Public interest is greater as there is NO commercial interest and the requested records will be posted, free of charge, on www.GeorgeAFB.Info.

7) The ability of the requester to disseminate the information.

a) As stated in my FOIA requests section titled Fee Waiver, “… I have the ability to disseminate information on a wide scale, and intend to use information obtained through FOIA in original works.” While GeorgeAFB.Info is not a large website, it has 30 to 70 thousand hits, 3 to 4 thousand unique visitors, 7 to 20 thousand page views, and visitors from more than 10 countries, a month (See page 5).
b) I have published dozens of records that I have received through FOIA(s). Over one hundred people have contacted me through GeorgeAFB.Info regarding health problems that these people, and their friends and family developed during and shortly after being stationed at George AFB. In some families, every child who was born at George AFB died before the age of twenty-four years, with some families experiencing the loss of up to four children. In other families, all but one of up to five family members, including adults, died at or shortly after leaving George AFB (See Self-Reported Health Problems on www.GeorgeAFB.Info). Some of these people were Adelanto School District employees who worked at the two schools that were allowed to remain open on the former George AFB, for 10 years after it closed.

Fee Waiver News Media

In my FOIA requests, I requested classification as a representative of the news media. As stated in my FOIA requests section titled Fee Waiver “… I have the ability to disseminate information on a wide scale, and intend to use information obtained through FOIA in original works and the requested records will be posted, free of charge, on www.GeorgeAFB.Info (See 7a above).

“Personal Interest” Versus “Public Interest”

You state: “The AFCEC Public Affairs Officer and myself reviewed your website www.GeorgeAFB.Info and agreed it leans more towards ‘personal interest’ versus ‘public interest’ as shown under “About” tab > George AFB Info”.

On March 12, 2013, Google had 226 pages indexed from GeorgeAFB.Info (See page 6), and docs.GeorgeAFB.Info had 195 Mb of PDFs. This is equal to thousands of additional pages in PDF format.

To state that GeorgeAFB.Info is a personal interest website because one page contains three paragraphs consisting of 243 words about my history ignores the other 1,000+ pages. This information was included to add a personal element to the website (a back-story). Furthermore, your statement disregards the primary mission of GeorgeAFB.Info, which is the outreach to the hundreds, possibly thousands of people who were potentially injured by the toxic contamination that was at George AFB. The large number of page views, the hundreds of “Self-Reported Health Problems”; dozens of personal accounts about miscarriages, stillbirths, birth defects, and childhood cancers at George AFB demonstrate the successful outreach of GeorgeAFB.Info.

If you wish to discuss this request, please do not hesitate to contact me at xxx.

Thank you for processing this FOIA Appeal.

Sincerely,

Frank Vera III

DEPARTMENT OF THE AIR FORCE
WASHINGTON DC
OFFICE OF THE GENERAL COUNSEL
SAF/GCA
1740 Air Force Pentagon
Washington, DC 20330-1740

APR 15 2014

Mr. Frank Vera III
P.O. Box 1313
Jamestown, CA 95327-1313

Dear Mr. Vera:

This letter replies to your March 2013, Freedom of Information Act (FOIA) appeals (2013-00102-A, 2013-00103-A, 2013-00106-A, 2013-00107-A, 2013-00108-A) of the Air Force Civil Engineer Center’s denial of your request for a fee waiver and your request to be categorized as a representative of the news media.

I have been delegated the responsibility to conduct the Office of the Secretary of the Air Force review in your case. I have considered your appeals and determined they should be denied.

A FOIA requester is entitled to a fee waiver or reduction “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).

In making my decision, I have reviewed your initial FOIA request, your fee waiver request, and your appeal. I considered the factors found in DoD Regulation 5400.7_AFMAN 33-302, Chapter 6, and other applicable law. Based on my review, I have determined that your request does not qualify for a fee waiver.

In addition, you do not meet the statutory definition of “representative of the news media” found at 5 U.S.C. 552(a)(4)(A)(ii). Thus, you were appropriately placed in the “other requester” category.

For the reasons stated above, your appeals are denied. This constitutes the final Air Force action on your appeal. The FOIA, 5 U.S.C. § 552, provides for judicial review of this determination.

Sincerely
DAVID L. THOMAS
Assistant Deputy General Counsel
(Fiscal, Ethics and Administrative Law)

Headquarters Air Force/AAII (FOIA)
1000 Air Force Pentagon
Washington, DC 20330-1000
Phone: (703) 692-2735
FOIA on FOIA

05 Dec 2014

EFax: [email protected]

Dear FOIA Officer:

Please process this request pursuant to the Freedom of Information Act, 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a.

Per instructions at http://www.foia.af.mil/ , I am filing this request with Headquarters Air Force/AAII (FOIA) as I do not know the location or custodian of the records.

1. I am requesting a complete and unredacted copy and/or printout of the records contained in the administrative processing file(s)/folder(s) associated with the following FOIA Request and Appeals (2013-00102-A, 2013-00103-A, 2013-00106-A, 2013-00107-A, 2013-00108-A) See page 4

2. This request is not meant to be exclusive of any other records that, although not specifically requested, have a reasonable relationship to the subject matter of this request. If you, or your office, have destroyed or decide to withhold any documents that could be reasonably construed to be responsive to this request, I ask that you indicate this fact and the reasons in your response.

Definition of Record

The term “record(s)” includes, but is not limited to: 1) all email communications to or from any individual within your agency; 2) memoranda; 3) inter-agency communications; 4) sound recordings; 5) tape recordings; 6) video or film recordings; 7) photographs; 8) notes; 9) notebooks; 10) indices; 11) jottings; 12) message slips; 13) letters or correspondence; 14) telexes; 15) telegrams; 16) facsimile transmissions; 17) statements; 18) policies; 19) manuals or binders; 20) books; 21) handbooks; 22) business records; 23) personnel records; 24) ledgers; 25) notices; 26) warnings; 27) affidavits; 28) declarations under penalty of perjury; 29) unsworn statements; 30) reports; 31) diaries; 32) calendars, regardless of whether they are handwritten, printed, typed, mechanically or electronically recorded or reproduced on any medium capable of conveying an image, such as paper, CDs, DVDs, or diskettes.

Record Search

When processing this request, please note that the D.C. Circuit has previously held that agencies have a duty to construe the subject material of FOIA requests liberally to ensure responsive records are not overlooked. See Nation Magazine, Washington Bureau v. U.S. Customs Service, 71 F.3d 885, 890 (D.C. Cir. 1995).

In line with the guidance issued by the Department of Justice (“DOJ”) on 9 September 2008 to all federal agencies with records subject to FOIA, agency records that are currently in the possession of a U.S. Government contractor for purposes of records management remain subject to FOIA. Please ensure that your search complies with this clarification on the effect of Section 9 of the OPEN Government Act of 2007 of the definition of a “record” for purposes of FOIA. In addition, the Air Force should not interpret this request to exclude correspondence sent to outside third parties. Please also consider this letter an affirmative rejection of any limitation of your search to Air Force originated records.

Redaction

In excising material, please “black out” rather than “white out” or “cut out.” Additionally, any reasonably segregable portion of a responsive record must be provided to me after redaction of any allegedly exempt material, as 5 U.S.C. § 552(b) requires. If this request is denied, in full or in part, please cite the exemptions pursuant to 5 U.S.C. § 552(b) that justify the denial.

If an exemption applies, however, please consider exercising the agency’s discretionary release powers to disclose the information. I reserve the right to appeal any decision to withhold information.

Record Format

I request that any documents or records produced in response to this request be provided in electronic (soft-copy) form wherever possible. Acceptable formats are .pdf, .doc, docx, .jpg, .gif, .tif. Please provide soft-copy records by email or on a CD if email is not feasible.

Fees

I agree to pay all applicable fees up to $25.00 for processing this FOIA/PA request. Please advise me in advance if the estimated charges are to exceed $25.00.

If you wish to discuss this request, please do not hesitate to contact me at xxx.

Thank you for processing this FOIA/Privacy Act request.

Sincerely,

Frank Vera III

DEPARTMENT OF THE AIR FORCE
WASHINGTON, DC
Office of the Secretary

11 December 2014

SAF/AAII (FOIA)
1000 Air Force Pentagon
Washington DC 20330-0100

Mr. Frank Vera
PO Box 1313
Jamestown CA 95327

Dear Mr. Vera

We received your 5 December 2014, Freedom of Information Act request (FOIA) for administrative processing records to 2013-00102-A, 2013-00103-A, 2013-00106-A, 2013-00107-A, and 2013-00108-A). Every effort will be made to respond to your request as required under the FOIA. Every effort will be made to respond to your request as required under the FOIA. Please contact Darryl Webb at (703) 692-9978 or email [email protected] and refer to case #2015-01721-F. We also transferred this request to AFCEC FOIA to process under 2015-01720-F for their information.

FOIA Administration Section