**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | FOIA Control No. 2007-065    |
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| JOEL HARDING                     | ** |                              |
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| On Request for Inspection of     | *  |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted: May 23, 2007 Released: May 30, 2007**

By the Commission:

1\. By this memorandum opinion and order, we deny an application for
review[^1] filed January 17, 2007, by Joel Harding (Harding), a prisoner
at the Alger Maximum Correctional Facility in Munsing, Michigan, seeking
review of a letter ruling[^2] denying his request for a waiver of fees
relating to his Freedom of Information Act (FOIA) request.[^3]

**I. BACKGROUND**

2\. In his FOIA request, Harding sought 15 categories of records.[^4]
Additionally, Harding requested a waiver of the fees for processing his
FOIA request, explaining:[^5]

> This is an indigent person\['\]s request and release of the documents
> is in the public interest at no cost to the requester because the
> information is being sought in connection with safety and welfare
> needs specifically related to the requester, as the requester requires
> the information for self protection reasons and disclosure of
> information of records on individuals whom \[sic\] may assist him with
> this protection.

3\. The Associate General Counsel, Administrative Law Division (OGC)
denied Harding's request for a fee waiver.[^6] Applying relevant
precedent, OGC noted that indigency alone is not a sufficient basis for
granting a waiver.[^7] Further, the fee waiver was denied because, while
Harding alleged that the request would serve "safety and welfare needs,"
he failed to explain with reasonable specificity how disclosure would
contribute to public understanding of the operations of the
government[^8] and, in particular, how he would disseminate the
requested information to the public.[^9] As an additional matter,
Harding was advised that some of the materials he requested may be
available in the Department of Corrections' Law Library.[^10]

**II. DISCUSSION**

4\. We deny Harding's application for review. As explained below, we
reject Harding's contention that, because he is an indigent prisoner, it
would be unconstitutional to deny his fee waiver request. Further, we
find that Harding has not shown that his FOIA request is likely to
contribute significantly to public understanding of the operations or
activities of the government, as required by the fee waiver provision of
the statute.

5\. [Constitutionality of Fee Waiver Denial.]{.underline} In *Ely v.
USPS*, the United States Court of Appeals for the District of Columbia
Circuit squarely rejected the argument that indigency alone constitutes
a sufficient justification for waiving FOIA fees.[^11] Nevertheless,
Harding, is his application for review, argues that denying a FOIA fee
waiver to an indigent prisoner is unconstitutional.[^12] There is no
merit to Harding's argument that the Constitution requires granting fee
waivers to indigents because they would otherwise be denied access to
information through FOIA.[^13] The Supreme Court has upheld the
application of government fees to indigents. In *United States v.
Kras,*[^14] for example, the Court held that the imposition of filing
fees as a condition for obtaining discharge in bankruptcy had a rational
basis and did not deny indigents equal protection of the laws, although
it tended to deny them access to bankruptcy relief. [^15] The Court
noted that bankruptcy is not a fundamental right such as free speech or
marriage and therefore a compelling governmental interest was not
required to regulate it.[^16] The Court further noted that indigency is
not a suspect category, such as race, nationality, or alienage.[^17]
Accordingly, it reasoned the law imposing fees was valid, although it
tended to have a greater effect on the indigent, because it was a
rational exercise of Congress' power to regulate bankruptcy
proceedings.[^18] Similarly, in this case, no fundamental right or
suspect category is involved, and, accordingly, fee waiver standards
need only have a rational basis. And here, limiting FOIA fee waivers to
cases where the disclosure of information would contribute significantly
to public understanding of the operations or activities of the
government represents a rational basis for granting waivers since it
furthers the basic purpose of the FOIA, which is to open agency action
to the light of public scrutiny while protecting the public fisc.[^19]

6\. In support of his argument, Harding relies on two cases, *Turner v.
Safley*[^20] and *Romer v. Evans*[^21]*,* both of which are inapposite.
In the first place, neither case involves indigency or the imposition of
fees. Moreover, *Turner* involved a prisoner-specific restriction on the
fundamental right of marriage. Here, by contrast, the same waiver
standard for FOIA fees applies to all applicants, whether or not they
are incarcerated or indigent, and Harding's request for a fee waiver
does not implicate any fundamental rights. Furthermore, in *Romer*, the
Supreme Court found that a state constitutional amendment was
unconstitutional because it singled out a particular disfavored group
(homosexuals) and lacked a rational basis. In this case, however, the
FOIA fee waiver provision applies equally to all applicants and, as
explained above, the FOIA waiver standards have a rational basis.
Accordingly, the cases cited by Harding do not call into question the
constitutionality of the FOIA fee waiver standards.

7\. [Absence of Significant Contribution to Public Understanding of
Government.]{.underline} Harding next argues that he has satisfied the
requirement for showing that his request is in the public interest
because his request involves a matter of personal safety. Harding
states:

> I have been and continue to be subjected to an [unlawful]{.underline}
> terrorist weapon which . . . is being used on me to intercept . . .
> and transmit for [the purpose of murdering me]{.underline} and
> defrauding the public, all of my thoughts, speech, and activities. The
> device is a bioelectric, Radio frequency transmitter/receiver which
> monitors and tracks my location, and my biophysical information, and
> transmits it to others over radio and television air space throughout
> the state of Michigan and the United States. . . . They use it to
> intercept and thwart legal claims/prosecutions. . . . The device is
> frying my body and brain, literally. . . . This is a serious and
> outlawed death penalty offense. I am suffering for more than 2 years
> non-stop and am dying from it. . . . They are all conspiring together
> and use the device to spy on law enforcement. They though\[t\] I was a
> Federal agent. The crimes are intended not only against me, but also
> against the state and federal government, and if you don't stop this
> Treason[^22] I will die.[^23]

Harding also alleges that his children were kidnapped, that he is being
blackmailed and misrepresented to the public and that "more than 5000
and possibl\[y\] millions of persons \[are\] involved."[^24] He further
claims that a fraudulent FCC license application was filed in his name.
He then indicates that "\[t\]he information requested will benefit the
public because I will use it to prove the unlawful threat against them,
supra, and state how I used it to do so, through amateur Radio
communications."[^25]

8\. A fee waiver will be granted only upon a showing that "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."[^26] For purposes of the fee waiver statute,
the public interest is narrowly defined to mean a likelihood of
contributing significantly to the public understanding of the operations
or activity of government.[^27] Further, personal benefit to be derived
by the requester is not relevant to the determination.[^28] A requester
seeking a fee waiver bears the initial burden of identifying the public
interest to be served.[^29] The public interest must be identified with
"reasonable specificity;" a waiver is not justified if any benefit to
the public from waiver and disclosure would be "at best, indirect and
speculative."[^30] In this case, we cannot discern any specific basis to
believe that disclosure of the information requested by Harding will
serve to illuminate his allegations of government misconduct or
otherwise contribute significantly to the public understanding of the
operations of government as the statute requires in order to grant a fee
waiver. In fact, despite his attempt to more broadly characterize his
request, it appears that it is primarily motivated by his desire to
protect his personal safety and that the information he requests would
not make a significant contribution to public understanding of federal
government operations.[^31] At best, any benefit to the public would be
indirect and, in light of the somewhat bizarre nature of Harding's
allegations, highly speculative. Harding has therefore failed to meet
his burden of showing that the requested information would benefit the
public by contributing significantly to the public understanding of the
operations of government.[^32] Moreover, Harding has failed to identify
how he intends to disseminate the information to the public, further
undermining his assertion that release of the information would benefit
the public by contributing significantly to the public understanding of
the operations of government.[^33] Indeed, this failure alone is
sufficient to deny a fee waiver request.[^34]

**III. ORDERING CLAUSES**

9\. ACCORDINGLY, IT IS ORDERED, that the application for review, filed
January 17, 2007, by Joel Harding IS DENIED. Harding may seek judicial
review of this action, pursuant to 5 U.S.C. § 552(a)(4)(B).

10\. The officials responsible for this action are the following:
Chairman Martin and Commissioners Copps, Adelstein, Tate, and McDowell.

> FEDERAL COMMUNICATIONS COMMISSION
>
> Marlene H. Dortch
>
> Secretary

[^1]: Letter from Joel Harding to Federal Communications Commission,
    Office of General Counsel (Jan. 17, 2007) (Application for Review).

[^2]: Letter from Joel Kaufman, Associate General Counsel to Mr. Joel
    Harding (Dec. 27, 2006) (Response).

[^3]: Letter from Joel Harding to Federal Communications Commission
    (Nov. 30, 2006) (Request).

[^4]: *See* Request at 1-3. These categories are:

    All amateur radio [and]{.underline} radio station applications for
    all class licenses including those of the amateur radio bands.

    A list and fee schedule for all licenses including those specified
    in Request #1.

    All \[sic\] list of all call-signs of all volunteer exame \[sic\]
    coordinators (VEC's) in Michigan and their addresses from you
    \[sic\] call sign or other databases. . . .

    A printout from the database in request #3 of Amateur operator
    N8XNN.

    A copy (list) of all rules regarding each type of application and
    transmission/reception station including space/shuttle stations.

    A copy/list of all radio amateur radio satellites and all
    telecommunications satellites, their names/call signs and the
    frequencies uplink/downlink they operate on.

    A copy (list) of all radio repeaters/amateur radio repeaters and
    their call signs and operation frequency specifics.

    A copy/list of all Q codes/signs and any other radio code
    communications format that is usable by the public to \[sic\] which
    you maintain as a record, even those that are old.

    A copy of Part 97 regarding amateur radio/other operations.
    (radio/television.)

    A copy of all cell phone/telephone calling areas including the first
    3 digit calling areas for transmission/reception cites \[sic\] with
    identifying info.

    The state identification list for all call-signs you provide in the
    lists foregoing.

    All rules regard [transmission]{.underline} of radio signals on
    amateur bands for [Antennas]{.underline} for the said stations
    requested.

    A copy of the application which was sent [in]{.underline} my name (I
    did not send it; It is \# Ref 0002431215, and all related
    papers/records.

    A copy/list of any call sign area maps (with call prefixes)
    including any world call zone maps and ITU region maps.

    > (\*) I would also like your complaint forms for unlawful
    > transmission on any frequency and would like to know the
    > procedure.

[^5]: Request at 1. Absent a waiver, Harding would be categorized as an
    "all other requester" and would be charged with the search and
    duplication costs associated with his request, except for the first
    two hours of search time and the first 100 pages of duplication.
    *See* Response at 2; 47 C.F.R. § 0.470(a)(3).

[^6]: *See* Response at 2.

[^7]: *See* Response at 1, *citing* *Ely v. USPS,* 753 F.2d 163, 165
    (D.C. Cir. 1985) (rejecting contention that indigency alone is
    justification for granting fee waiver requested by federal
    prisoner), *cert. denied,* 471 U.S. 1106 (1985), and *Durham v. U.S.
    Dep't of Justice,* 829 F. Supp. 428, 435 n.10 (D.D.C. 1993)
    (indigency alone does not constitute adequate grounds for a fee
    waiver) .

[^8]: *See* Response at 1*, citing* *McClellan Ecological Seepage
    Situation v. Carlucci,* 835 F.2d 1282, 1285 (9th Cir. 1987) (*MESS)*
    (requester must demonstrate with reasonable specificity how
    disclosure will contribute to public understanding*).*

[^9]: *See* Response at 1, *citing Larson v. CIA,* 843 F.2d 1481, 1483
    (D.C. Cir. 1988) (absence of specific information regarding ability
    to disseminate requested information is grounds for denying a fee
    waiver) and *MESS,* 835 F.2d at 1285 (requiring an explanation with
    "reasonable specificity how disclosure will contribute to public
    understanding")*.*

[^10]: *See* Response at 2.

[^11]: *See* *Ely*, 753 F.2d at 165.

[^12]: *See* Application for Review at 2-3.

[^13]: *See* *Price v. United States.,* 2005 WL 3207402 (D. Ariz. 2005)
    (giving FOIA fees as example in finding that government fees are
    generally not constitutionally required to be waived for indigents).

[^14]: 409 U.S. 434, 446-47 (1973).

[^15]: *See id*.

[^16]: *See* *id.* at 446.

[^17]: *See id.*

[^18]: In this regard, Harding errs (Application for Review at 2) in
    suggesting that a higher "strict scrutiny" standard should apply.

[^19]: *See Ely*, 753 F.2d at 165 (D.C. Cir. 1985) ("The fee waiver
    provision in the Freedom of Information Act was enacted to ensure
    that the public would benefit from any expenditure of public funds
    for the disclosure of public records. Congress rejected a fee waiver
    provision for indigents."); *see also Kissinger v. Reporters
    Committee for Freedom of the Press,* 445 U.S. 136, 153-54 (1980)
    (recognizing congressional intent that persons making FOIA requests
    must generally pay for the costs of document search and
    duplication). *See generally U.S. Dep't of Justice v. Reporters
    Committee for Freedom of the Press*, 489 U.S. 749, 772 (1989) (basic
    purpose of the FOIA is to open agency action to the light of public
    scrutiny), *quoting Dep't of Air Force v. Rose,* 425 U.S. at 372.

[^20]: 482 U.S. 78, 97-98 (1987) (finding unconstitutional prison
    regulation that prohibits inmate marriages unless prison
    superintendent determines that there are compelling reasons for the
    marriage).

[^21]: 517 U.S. 620, 632-33 (1996) (state constitutional amendment that
    bars laws designed to protect homosexuals from discrimination is
    unconstitutional).

[^22]: Harding cites to 18 U.S.C. § 2382, which criminalizes the
    misprision of treason.

[^23]: Application for Review at 4-6 (emphasis in the original).

[^24]: Application for Review at 7.

[^25]: *Id.*

[^26]: *See* 5 U.S.C. § 552(a)(4)(A)(iii); 47 C.F.R. § 0.470(e). *See
    also Robert J. Robbins,* 21 FCC Rcd 6685, 6686 ¶ 3 (2006) (The focus
    on determining whether to waive FOIA fees is the benefit to be
    derived by the public; personal benefit to be derived by the
    requester is not relevant to the determination). Contrary to
    Harding's contention (Application for Review at 1), OGC correctly
    cited the relevant statutory provision, which does not mention
    indigence. Furthermore, notwithstanding Harding's contrary view, it
    is irrelevant whether Harding would be exempt from fees under the
    Michigan Freedom of Information Act, MCL §§ 15.231-246, since it is
    the federal FOIA, not the state statute, that is at issue here.
    *See* Application for Review at 2.

[^27]: *See* 5 U.S.C. § 552(a)(4)(A)(iii); 47 C.F.R. § 0.470(e).

[^28]: *Robbins,* 21 FCC Rcd at 6686, *citing McClain v. U.S. Dep't of
    Justice,* 13 F.3d 220, 221 (7th Cir. 1993).

[^29]: *NTEU v. Griffin,* 811 F.2d 644, 647 (D.C. Cir. 1987); *see also
    MESS,* 835 F.2d at 1285 (explaining requester's burden)*.*

[^30]: *NTEU v. Griffin,* 811 F.2d at 647*.*

[^31]: *See McClain v. U.S. Dep't of Justice,* at 221 (a former inmate's
    request for information concerning federal investigation and
    prosecution of him primarily served to facilitate a challenge to his
    conviction and therefore did not qualify as contributing
    significantly to the public understanding of government operations).

[^32]: *See supra* note 31.

[^33]: *See supra* note 9.

[^34]: *See Larson,* 843 F.2d at 1483 (failure to identify means of
    disseminating information is a sufficient basis for denying fee
    waiver request). Citing various civil rights laws, such as 18 U.S.C.
    § 242, Harding (Application for Review at 5, 7) also asks the
    Commission to initiate prosecution in the state and federal courts.
    Requests of this nature, however, are beyond the scope of a FOIA
    appeal.