2019-01-02 USEPA – request for satellite images, aerial photographs, and analysis of George AFB

Frank Vera III
George AFB, CA – HTRW
P.O. Box 1313
Jamestown, CA 95327-1313

January 2, 2019
By Email: [email protected]

Freedom of Information Act Request
U.S. Environmental Protection Agency
1200 Pennsylvania Avenue, NW (Mail code 2310A)
Washington, DC 20460
(202) 566-1667

Please process this request under the Freedom of Information Act, 5 U.S.C. § 552. 

Dear FOIA Officer:

I request a complete and unredacted copy, printout, or export of all satellite images, aerial photographs, AND analysis of the satellite images, aerial photographs of the EPA Superfund site CA2570024453 (former George Air Force Base, CA) and sounding area.

Please conduct a comprehensive search for the requested records in possession of the US EPA, US Government archive, and US Government contractor.

I would like to receive the information electronically, by secure download if available, e-mail attachment, CD-ROM or thumb drive if not.

I agree to pay reasonable fees for the processing of this request up to $25.  Please notify me before incurring any expenses more than $25.

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 US Government archive or 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 US EPA 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 US EPA 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 the law requires.  5 U.S.C. § 552(b).  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.

Request for Fee Waiver

FOIA mandates a waiver or reduction of fees associated with a request 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).

The former Victorville Army Air Field/George Air Force Base, CA, is a Superfund site “EPA Superfund ID: CA2570024453” and is one of the most contaminated sites in the country.  Approximately one hundred thousand men, women, and children were forced to work, live, and go to school on George AFB.  Given the nature and extent of the contamination, the number of completed exposure pathways (CEPs), that we had repeated and prolonged exposure to elevated levels of the many toxic substances at George AFB it is unreasonable to believe that thousands of us were not adversely affected by the contaminants.

About George AFB, CA – Hazardous Toxic & Radioactive Waste (George AFB – HTRW)

I (Frank Vera) am the owner and operator of the website, Facebook groups, and Newsletter “George AFB – HTRW.”  George AFB – HTRW’s primary function is to act as a watchdog public advocacy group(1) for those who were injured by their exposure to the contamination at George AFB and ensure the Veterans and their family members have the necessary documentation of the numerous Completed Exposure Pathways (CEPs) at George AFB so the Veteran can win their VA and Social Security disability case.  We have had several member win there VA C&P claims for toxic injuries that were the result of their exposure to toxins at George AFB with documents obtained and posted on the website and Facebook pages.  To accomplish this objective, I file FOIA request and MDRs to get the necessary records released; or declassified and released and published on our website. (www.GeorgeAFB.Info)

We (the members of George AFB – HTRW) are a loose-knit collation of over one thousand members that were injured or lost a family member(s) because of our/their exposure to the contamination at George AFB.  Our website www.GeorgeAFB.Info routinely gets over 7,000 unique visitors a month, has over one hundred articles that summarize records that were released under FOIA with links to the gibibytes of original documents that released; or were declassified and released.  The released records and articles are ALWAYS provided for free and NEVER behind a paywall.

FOIA and George AFB miscarriages in the news

There are 200 to 300 families that lost from 1 to 7 children at or shortly after leaving GAFB.  This number includes the girls that grew up in the Base Housing that could not carry a child to full term (miscarriage and stillbirth) after their exposure to the toxins at George AFB.  The issue of the extremely high miscarriage rate at George AFB was discussed in several news articles including “Why women were told ‘Don’t get pregnant at George Air Force Base’” Military Times and Air Force Times, June 20, 2018.  This just one of dozens of news articles (2) that were published using information declassified and/or released under FOIA about the and about the health issues that plague the military personnel, their family members, and surrounding communities that are the result of their exposure to “toxic substance(s)” at George AFB.

In closing

If my request is denied in whole or part, please justify all withholdings by reference to specific exemptions and statutes, as applicable. For each withholding please also explain why your agency “reasonably foresees that disclosure would harm an interest protected by an exemption” or why “disclosure is prohibited by law[.]” 5 U.S.C. § 552(a)(8)(A)(i).

I have made a reasonable prima facia case (5) for a fee waiver, ask that your honor my request and grant the fee waiver.  I have shown why I want the records, what I intended to do with them,  to whom and how I plan on distributing the records to, that past FOIA releases have resulted in news articles in prominent publications, and helped Veterans win their VA disability case enabling them to qualify for medical care and compensation for their Service-Connected disabilities.

In the event that fees cannot be waived, I would be grateful 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.  If I am denied a “Public Interest Fee Waiver,” I will pay “under protest” and I expressly reserve my rights to appeal your decision.

I look forward to receiving the complete and unredacted documents within twenty (20) business days.  If you wish to discuss this request, please do not hesitate to contact me at 209-984-5517.

Thank you for processing this FOIA request.

Frank Vera
George AFB, CA – Hazardous Toxic & Radioactive Waste (HTRW)
PO Box 1313
Jamestown, CA, 95327-1313
Phone:      209-782-4541
Email:     xxx
Website:   www.GeorgeAFB.Info

—

  1. Better Gov’t Ass’n v. Department of State, 780 F.2d 86, 88-89 (D.C. Cir. 1986) (fee waiver intended to benefit public interest watchdogs)
  2. Attachment 1 – A partial list of news articles
  3. Friends of the Coast Fork v. U.S. Dept. of Interior, 110 F 3d. 53, 55 (9th Cir. 1997).

Attachment 1

2019-04-01 Fee Waiver Appeal Denial

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460

OFFICE OF
GENERAL COUNSEL

April 1, 2019

Mr. Frank Vera
George AFB, CA — HTRW
P.O. Box 1313
Jamestown, CA 95327

Re: Freedom of Information Act Appeal EPA-HQ-2019-003572 (EPA-R9-2019-003295)

Dear Mr. Vera:

I am responding to your February 19, 2019 appeal under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. You appealed the February 19, 2019 decision of Larry F. Gottesman, National FOIA Officer of the U.S. Environmental Protection Agency (“EPA”) to deny your request for a fee waiver. You seek a waiver of all fees associated with your FOIA request for all satellite images, aerial photographs, and analysis of the satellite images and aerial photographs of the EPA Superfund site George Air Force Base, located in Victorville, CA. You do not challenge the placement of your request in the “other” fee category; therefore, I am not addressing the issue.

On January 2, 2019, EPA Headquarters received your FOIA request, which included a fee waiver request. On February 19, 2019, Larry F. Gottesman, National FOIA Officer with EPA, sent you a letter stating that your request for a fee waiver failed to address the determinative fee waiver factors set forth in our regulations. As such, your request for a fee waiver was denied. On February 19, 2019, EPA received your letter appealing this determination. In that same letter you included an addendum requesting that your FOIA request receive expedited processing.

I have carefully considered your request for a fee waiver, EPA’s initial denial, and your appeal. I have also considered your additional request that your initial FOIA request receive expedited processing. Based on the justifications provided to EPA in your appeal letter, I have concluded that your appeal of the denial of your request for a complete waiver of fees should be, and is, denied. I have also determined that your request for expedited processing should be, and is, denied.

Analysis of Your Request for a Fee Waiver

The statutory standard for evaluating fee waiver requests is whether “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 federal government; and is not primarily in the commercial interest of the requester.” 5 U.S.C. § 552(a)(4)(A)(iii).

Requests for fee waivers are evaluated on a case-by-case basis. Judicial Watch, Inc., 185 F. Supp. 2d at 60. Conclusory statements or mere allegations that the disclosure of the requested documents will serve the public interest are not sufficient to meet the burden. See McClellan Ecological Seepage Situation, 835 F.2d at 1285; Judicial Watch, Inc. v. Rossotti, 326 F.3d 1309, 1312 (D.C. Cir. 2003).

Public Interest Prong of the Fee Waiver Test

EPA’s regulations at 40 C.F.R. § 2.107(1)(2) and (3) establish the standard to evaluate whether a requester has met the public interest prong of the fee waiver test. EPA must consider four conditions to determine whether a request is in the public interest: (1) whether the subject of the requested records concerns the operations or activities of the federal government; (2) whether the disclosure is likely to contribute to an understanding of government operations or activities; (3) whether the disclosure is likely to contribute to the understanding of the public — a reasonably broad audience of persons interested in the subject matter; and (4) whether the disclosure is likely to contribute significantly to public understanding of government operations or activities. 40 C.F.R. § 2.107(1)(2). If the public interest prong is met, EPA must consider two conditions to determine whether a request is primarily in the commercial interest of the requester: (1) whether the requester has a commercial interest that would be furthered by the requested documents; and (2) whether any such commercial interest outweighs the public interest in disclosure. 40 C.F.R. § 2.107(1)(3).

A requester seeking a fee waiver bears the burden of showing that the disclosure of the responsive documents is (1) in the public interest; and (2) not primarily in the requester’s commercial interest. See Judicial Watch, Inc. v. DOJ, 185 F. Supp. 2d 54, 60 (D.D.C. 2002); Larson v. CIA, 843 F. 2d 1481, 1483 (D.C. Cir. 1988). The requester must therefore explain with reasonable specificity’ how disclosure of the requested information is in the public interest by demonstrating how such disclosure is likely to contribute significantly to public understanding of government operations or activities. See Judicial Watch v. Rossotti, 326 F.3d 1309, 1312-15 (D.C. Cir. 2003); Larson, 843 F.2d at 1483. Furthermore, if the circumstances surrounding this request (e.g., the content of the request, the type of requester, the purpose for which the request is made, and the requester’s ability to disseminate the information to the public) clarify the point of the request, the requester must set forth these circumstances. See Larson, 843 F.2d at 1483; McClellan Ecological Seepage Situation v. Carlucci, 835

—

1 While the courts have insisted that fee waiver requests must be made with ‘reasonable specificity’ . . . and based on more than `conclusory allegations (citation omitted),” the courts have also recognized that “Congress amended FOIA to ensure that it be ‘liberally construed in favor of waivers for noncommercial requesters (citations omitted).” Judicial Watch v. Rossotti, 326 F.3d 1309, 1312 (D.C. Cir. 2003). F.2d 1282, 1285 (9th Cir. 1987)).

I find that your request does “concern the operations and activities of the federal government,” sufficiently to meet the first element of the public interest prong of the fee waiver test. Furthermore, I find that the subject disclosure is likely to contribute to the understanding of a reasonably broad audience of persons interested in the subject matter given your established methods of disseminating information and records related to George AFB to the public. However, I find that you have not met the requirements for elements two and four of the public interest prong of the fee waiver test. Therefore, I am denying your appeal.

Elements Two and Four

The second element to consider in determining whether a fee waiver request concerns documents that will contribute to a greater public understanding of government acts is the informative value of the documents to be disclosed. 40 C.F.R. § 2.107(1)(2)(ii). The requested documents must be “meaningfully informative about government operations or activities in order to be ‘likely to contribute’ to an increased public understanding of those operations or activities.” 40 C.F.R. § 2.107(1)(2)(ii). The requester seeking a fee waiver must also, under the fourth element of the test, show that the disclosure of the requested records is likely to contribute “significantly” to public understanding of government operations or activities. 40 C.F.R. § 2.107(1)(2)(iv). Disclosure of the information should significantly enhance the public’s understanding of the subject in question as compared to the level of public understanding prior to disclosure. Id.

In your February 19, 2019 appeal letter, you stated that your FOIA request specifically concerned, “Victorville Army Air Field/George Air Force Base, CA,” an EPA Superfund site. You then explain how you are the owner and operator of a “website, Facebook groups, and Newsletter ‘George AFB — HTRW'” and that you use documents, including those obtained through FOIA requests, to ensure that “veterans and their family members have the necessary documentation of the numerous Completed Exposure Pathways (CEPs) at George AFB so that Veterans can win their VA and Social Security disability case.”

You have failed to show that the information that you are requesting will significantly contribute to public understanding about contamination at George Air Force Base (George AFB) and the resultant effects that exposure to such contamination may have had on persons working at the facility. You have not explained how copies of satellite images and aerial photographs of the site will increase public understanding of the health consequences to persons exposed to hazardous contaminants while living and/or working at George AFB. Similar information regarding George AFB is already publicly available through a variety of channels, including a George AFB-specific Superfund site on EPA’s website (https://cumulis.epa.gov/supercpad/SiteProfiles/index.cfm?fuseaction=second.schedule&id=0902737), which provides a link to a site map that includes satellite images and aerial photographs of the facility and the surrounding area. Your failure to identify how the requested records will inform the general public about a specific government operation or activity beyond what is already publicly known makes it impossible to determine that disclosing the requested information will significantly contribute to public understanding of that activity or operation. See Judicial Watch, Inc. v. DOJ, 122 F. Supp. 2d 5, 10 (D.D.C. 2000). You have therefore not met your burden to establish how disclosure of the requested records will significantly contribute to the public understanding of government operations.

Analysis of Your Request for Expedited Processing

FOIA requires that agency regulations provide for expedited processing of requests when requesters demonstrate “compelling need.” 5 U.S.C. § 552(a)(6)(E)(i)(I)-(II). EPA regulations define compelling need as circumstances in which the lack of expedited treatment could reasonably be expected to pose an imminent threat to the life or physical safety of an individual or an urgency to inform the public about an actual or alleged Federal government activity. 40 C.F.R. § 2.104(e)(1)(i)-(ii).

Your February 19, 2019 fee waiver appeal included a request for expedited processing of your initial FOIA request, stating that, “the requested records are essential for a follow-up news article.” You further state, “The requested records are necessary to request a new Public Health Assessment (PHA) by the Agency for Toxic Substances and Disease Registry (ATSDR).”

Your request for expedited processing is denied on both procedural and substantive grounds. First, 40 C.F.R. § 2.104(e)(2) precludes a requester from asking for expedited processing for his initial FOIA request at the appeal stage. As you failed to raise your request for expedited processing of your FOIA request at the time of initial filing you waived your ability to raise the issue on appeal. Second, the bases asserted for expedited treatment of your FOIA request are insufficient. You have failed to link your need for records to an imminent threat to the life or safety of an individual or to a particular urgency to inform the public about the government activity involved in the request, beyond the public’s right to know about the government activity generally. Therefore, your request for expedited processing is denied.

Conclusion

This letter constitutes EPA’s final determination on this matter. Pursuant to 5 U.S.C. § 552(a)(4)(B), you may obtain judicial review of this determination by filing a complaint in the United States District Court for the district in which you reside or have your principal place of business, or the district in which the records are situated, or in the District of Columbia. Additionally, as part of the 2007 FOIA amendments, the Office of Government Information Services (OGIS) within the National Archives and Records Administration was created to offer mediation services to resolve disputes between FOIA requesters and Federal agencies as a non-exclusive alternative to litigation. You may contact OGIS in any of the following ways: by mail, Office of Government Information Services, National Archives and Records Administration, Room 2510, 8610 Adelphi Road, College Park, MD, 20740-6001; e-mail, [email protected]; telephone, 202-741-5770 or 1-877-684-6448; and fax, 202-741-5769.

Please call Brandon Levine at (202) 564-6625 if you have further questions regarding this matter.

Sincerely,

Kevin Miller
Assistant General Counsel
General Law Office

cc: HQ FOIA Office
Larry Gottesman
National FOIA Officer

I am not a doctor, Veterans Service Officer (VSO), or attorney; therefore, I cannot provide medical or legal advice.

If you, a friend, or a loved one have been injured or have passed away due to exposure to contamination at a DOD Superfund Site, please follow the steps outlined on the "Get Help" page.

The views and opinions expressed on this website belong solely to the authors and do not necessarily reflect the official policy or position of any agency of the U.S. government.

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