FIA-20-0027 - In the Matter of Martin Pfeiffer

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On June 4, 2020, the Office of Hearings and Appeals (OHA) denied a Freedom of Information Act (FOIA) appeal filed by Mr. Martin Pfeiffer (Appellant) concerning the National Nuclear Security Administration's (NNSA) determination to categorize him as a commercial use requester in connection with five FOIA requests that he submitted to the NNSA. The NNSA explained, in a determination letter to Appellant that it had categorized him as a commercial use requester because he had posted records provided by the NNSA in response to previous FOIA requests on a website and charged a subscription fee for access to the records. On appeal, Appellant asserted that he had posted "virtually all" of the records provided to him by the NNSA to a second website which any person could access for free, that he was an educational institution requester because he intended to use the records as part of his Ph.D. research, and that he was a representative of the news media based on his ability to disseminate information via Twitter, his free archive, and his subscription blog. OHA determined that the Appellant had not established that he was an educational institution requester because he stated that he could not identify a connection between the his research and the requested records without viewing them and because the verification he provided from his university did not indicate that the requested records related to specific academic work in which he was engaged. OHA further determined that the Appellant had not established himself as a representative of the news media because he was not associated with any news media organization, was not disseminating news through his various websites, and was not creating a distinct work when posting the records online. Finally, OHA concluded that the Appellant's practice of posting records obtained through the FOIA on a website and charging subscribers for access to the records was commercial in nature, even if he published them elsewhere for access without charge. On that basis, the OHA held that the NNSA had properly categorized the Appellant as a commercial use requester. Accordingly, OHA denied Appellant's appeal. OHA Case No. FIA-20-0027.