[Exhibit 100a] OCTOBER 7, 1975. Commander HORACE PEOPLES, Commanding Officer, Naval Publications and Forms Center, 5800 Tabor Avenue, Philadelphia, Pa. DEAR COMMANDER PEOPLES: On June 14, 1975, I wrote a letter to the Fiscal and Supply Department, Code 514.32. In that letter I asked two questions: "How much is the costs of a Bupers Manual obtained directly from you and How may that cost be deferred or reduced by invoking provisions of the 'Freedom of Information Act'?" On June 20, 1975, I was sent a form stating that I had misrouted my correspondence and that my original letter should have been sent to the Naval Publications & Forms Center located at 5801 Tabor Avenue, Philadelphia, Pa. 19120. On July 24, 1975, I received a Routine Reply, Endorsement, Transmittal or Information Sheet from you stating as Subject-Publications: Request For Approval To Issue with message marked "For Appropriate Action." On August 1, 1975, I received a letter from Ira L. Nagli of the Technical Information Center stating that I could obtain a Bureau of Naval Personnel Manual from the Government Printing Office for a cost of $41.00. (Copies of correspondence are enclosed for your purusal). Obviously my letter of June 14, 1975, was treated as an official request to obtain a Bupersman under the provisions of 5 USC 552. As I have quoted above, the request was to find out "How much is the costs of a Bupers Manual obtained directly from you and How may that Cost be deferred or reduced by invoking provisions of the Freedom of Information Act?". My request was procedural. This letter then is an official request, under the provisions of 5 USC 552, to obtain a copy of the Bureau of Naval Personnel Manual, Navpers 15791-B. Furthermore, the provisions of 5 USC 552(a) (4) (A) provide that fees shall be waived for the requested materials when it is deemed that such waiver will benefit the general public. We are requesting that fees be waived for the requested manual. Evidentiary material indicating prior correspondence, financial need, and benefit to the general public have been enclosed indicating that waiver is necessary: Enclosure No. 1: "Letter dated June 14, 1975." Enclosure No. 2: "Letter concerning Misrouted Correspondence date June 20, 1975." Enclosure No. 3: "Routine Reply from Horace Peoples dated July 24, 1975." Enclosure No. 4: "Letter from Ira L. Nagli, Technical Information Center dated Aug. 1, 1975." Enclosure No. 5: "Extract of 15th Street Monthly Meeting Newsletter-Article on Military Counseling." Enclosure No. 6: "Extract of 15th Street Monthly Meeting Structure-Military Counseling Program." Enclosure No. 7: "IRS Documenting non-profit, public service status of Military Counseling Program." Enclosure No. 8: Part A-1975 Budget of Military Counseling Program. Part B-Proposed 1975 Budget of Military Counseling Program. Part C-Financial indebtedness of Military Counseling Program as of Sept. 1, 1975. We need the requested manual for a variety of reasons. A large percentage of our case load are Naval personnel. A copy of Bupersman would be useful to us in helping us determine the legality and validity of discharges issued or about to be issued them by the US Navy, it would help us present defenses and claims before the Navy Board For Correction of Military Records and Navy Discharge Review Board. Referral to this center is sufficiently large to merit reduction of fees. Counseling agencies, New York Legal Air Society, ACLU, and congressional offices are among those who refer active duty military personnel to this office, quite often these persons are in a UA status or experiencing severe problems of one sort or another. For those who are UA a Bupersman would help us prepare legal defenses that can be presented to Courts Martials when they return back to military control. We look forward to an expeditious handling of this request. Respectfully, CHRISTOPHER HODGE, Counselor, Military Counseling Program. [Exhibit 100b] Mr. CHRISTOPHER HODGE, DEPARTMENT OF THE NAVY, BUREAU OF NAVAL PERSONNEL, Washington, D.C., November 26, 1975. Counselor, Military Counseling Committee, New York Monthly Meeting of the Religious Society of Friends, 15 Rutherford Place, New York, N.Y. DEAR MR. HODGE: This is in reply to your letter of October 7, 1975, addressed to Commanding Officer, Naval Publications and Forms Center, which was referred to the Chief of Naval Personnel. You have requested a copy of the Bureau of Naval Personnel Manual, NAVPERS 15791-B, without cost, under the provisions of the Freedom of Information Act, as amended (Title 5 United States Code, Section 552). Your letter includes information intended to support your contention that the cost of providing the manual should be waived by the Department of the Navy. This request duplicates, in part, your request of August 22, 1975, which sought that manual in addition to other materials. My letter of September 23, 1975, informed you of the statutory and regulatory basis for waiver of fees in this connection. The manual which you requested is entirely releasable. However, considerable cost to the Navy would be involved in complying with your request. These costs cannot be waived in this case because it is considered that the information which you have furnished does not establish entitlement to such a waiver. Specifically, it is considered that only a few individuals would possibly benefit from the proposed service. You are advised that it is your right to appeal this determination to the designee of the Secretary of the Navy within 120 days of the date of this letter. Such appeal, if made, should be addressed to: Judge Advocate General (Code 14L), Washington, D.C. The enclosed copy of this letter should be attached, and it is recommended that the letter of appeal and the envelope both bear the notation, "Freedom of Information Act appeal." In the alternative you may obtain the 1969 edition of the Bureau of Naval Personnel Manual from the Superintendent of Documents, United States Printing Office, Washington, D.C. 20402 at a cost of $42.50. The remainder of the requested records, which comprise approximately 15,312 numbered pages, may be obtained by sending this activity your check or money order for $767.30, which is the estimated amount of the applicable duplication fee computed in accordance with title 32, section 701.40, "Code of Federal Regulations." In the event that you appeal in the manner previously indicated, and it is determined that you are entitled to waiver or reduction of the fees, a refund would be paid to you. Sincerely, W. L. McDONALD, [Exhibit 100c] INSTITUTE FOR PUBLIC INTEREST REPRESENTATION, Re JAG: FOI: FD6: FD7: pas. Serial No. 1178. Rear Admiral, JAGC, U.S. Navy, Office of the Judge Advocate General, Department of the Navy, Washington, D.C. DEAR ADMIRAL MILLER: We are writing to you on behalf of of the Association of North East Veterans Counseling Organization ("ANEVCO") to appeal the earlier denial of ANEVCO's petition for a waiver of fees with respect to its request for the 1948, 1959 and 1969 editions of the Bureau of Naval Personnel Manual (with copies of changes thereto). In particular, we ask you to reconsider your decision of February 5, 1976 denying the requested fee waiver in light of the letter and spirit of the Freedom of Information Act ("FOIA") and Navy regulations pursuant thereto. The facts involved in this request have been detailed in correspondence between your office and Mr. Christopher Hodge, representing ANEVÑO, and will only be briefly summarized here. ANEVCO is an umbrella organization consisting of a number of non-profit counseling groups which, among other things, assist former Navy personnel in applying for discharge upgrades. Access to the Personnel Manuals sought here is a necessity for these groups in properly carrying out their counseling functions. Specifically, the Manual's are needed in order to give informed advice to former Navy personnel who believe themselves aggrieved by discharge related decisions. In order to allow the maximum use of the Manuals, ANEVCO proposes to set up a military regulations library in the New York City area for use by member groups and other interested persons. Despite the obvious value of the Manuals to their counseling operations, lack of funds on the part of ANEVCO and its members makes payment of the substantial fee sought by the Navy for the manuals impossible. In spite of these facts, you have ruled that "no compelling reasons exist to waive the direct cost" of furnishing the manuals. Previous denials of fee waiver in this case have stated that grounds for waiver of fees have not been "clearly establish [ed]" because "it is considered that only a few individuals would possibly obtain benefits from the proposed service." We feel that these conclusions are both factually and legally incorrect. The policy of the Freedom of Information Act and the Navy's regulations pursuant thereto establish generous criteria for waiving fees, which are more than met here. The Act calls for waiving fees where "the information can be considered as primarily benefitting the general public." The Senate Report accompanying the 1974 amendments to the Act explains that fees should be used to recover for the government only costs for information which gives "special benefits to an identifiable recipient above and beyond those which accrue to the public at large." S. Rept. No. 93-584, 93rd Cong., 2d Sess. 10 (1974). The benefits to be derived from free release of the Personnel Manuals will go not to ANEVCO or its members groups (which provide their services without charge), but rather to disadvantaged veterans, and ultimately to the public, which has a substantial interest in seeing that the discharge upgrading provisions are enforced fairly. In fact, the groups who would be utilizing the Manuals give counsel every year to thousands of ex-Navy personnel, who would be directly affected by release of the Manuals and establishment of the library. Thus, the benefits of free release would go to far more than "only a few individuals,” as was mistakenly stated in the original waiver denial. Furthermore, the Conference Report accompanying the 1974 FOIA amendments, H.R. Rept. 93-13800, 93rd Cong., 2d Sess. 7 (1974), clearly states that "fees should not be used as obstacles to the disclosure of requested information." By assessing a fee which makes it virtually impossible for ANEVCO to obtain the Personnnel Manuals, we submit that the Navy is acting in conflict with this clear congressional directive. In addition, Navy regulations also strongly indicate that ANEVCO's request should be granted. Section 701.40 (c) of Title 32 of the Code of Federal Regulations points to two situations where fee waiver is advisable: first, where the requester "is engaged in a nonprofit activity for public safety, health or welfare"; and second, where "payment of the... fee by a . . . non-profit group would not be in the interest of the program." Satisfaction of either of these criteria is sufficient under the regulation for fee waiver, and both are met here. Certainly, the Association qualifies as a non-profit organization engaged in furthering the public welfare (and has been so found by the Internal Revenue Service). It is equally clear that requiring payment of the fee in this case will not serve the interests of the Navy's information program, which are to "make available to the public the maximum information concerning its operations, activities, and administration." 32 C.F.R. § 701.5. By effectively denying ANEVCO the Personnel Manuals, and thus denying the public access to information concerning personnel administration, the Navy is acting contrary to its announced policy. This is especially true because for the New York area the Association library will be the only source for this information. It is our understanding that there are presently no copies of the manuals available in the area and the information has never been published in the Federal Register or the Code of Federal Regulations. Finally, we would like to point out to you that the Army, the Air Force, and the Marine Corps, acting pursuant to fee-waiver regulations identical to the Navy's, have all made copies of their personnel manuals (including back issues) available to ANEVCO without charge. We feel that the Navy should follow the well-considered example of its sister services. In summary, waiver of fees here for ANEVCO, a public interest group, would benefit both a large number of Navy veterans and the public at large. The Navy's refusal to provide the Manuals without charge-in sharp contrast to the example of the other military branches-makes it impossible for ANEVCO to obtain them, and thus conflicts with the clearly expressed intent of Congress and the Navy's announced commitment to providing the public with full information about its activities. We therefore ask that you reconsider your decision and make copies of the Bureau of Navy Personnel Manuals available to ANEVCO without fee. If you would like to discuss this matter further, please call us. Sincerely, CHARLES E. HILL. [Exhibit 100d] DEPARTMENT OF THE NAVY, OFFICE OF THE JUDGE ADVOCATE GENERAL, Re Freedom of Information Act Appeal. Mr. CHRISTOPHER HODGE, 15 Rutherford Place, New York, N.Y. DEAR MR. HODGE: This is in final response to a letter from Messrs. Charles E. Hill and Robert S. McIntyre of the Institute for Public Interest Representation, dated June 25, 1976, and received in this Office on July 2, 1976, in which it was requested that a reconsideration be undertaken of the final denial, dated February 5, 1976, of a fee waiver request by you on behalf of the New York Monthly Meeting of the Religious Society of Friends, as well as the Association of North East Veterans Counseling Organization (ANEVCO), the parent organization. In view of the points raised in Messrs. Hill and McIntyre letter, this matter was opened for reconsideration. Your October 12, 1976, letter returned indices from the 1948, 1959 and 1969 editions of the Bureau of Naval Personnel Manual (Bupersman), which set forth the specific sections from the various editions of the Bupersman which you desired. This occurred as a result of efforts between you and Captain W. D. Pfeiffer to limit the magnitude of, and the expense involved in complying with, your request. These indices, with the specific sections marked, were forwarded to the Bureau of Naval Personnel in order that an assessment could be made of the time and expense required to provied this lesser amount of material. This review resulted in a finding that it would actually cost 50% more to provide you with the specific sections than to completely reproduce each edition, because of the additional time required to extract those sections not desired. Accordingly, this letter addresses your appeal for a fee waiver of all of the material which you request. After review of the applicable law and regulations, and despite the further information provided by you, it is considered that the original decision was correct. It is noted that pursuant to several requests, but clearly not in all cases, fee waivers have been granted to ANEVCO by the other services. Notwithstanding this fact, it is not considered that such waivers would be either mandated by the applicable law or regulations, or that they would be otherwise appropriate, with respect to your requests under consideration here. Section 552 (a) (4) (A), 5 U.S.C. provides that "Documents shall be furnished without charge or at a reduced charge where the agency determines that waiver or reduction of the fee is in the public interest, because furnishing the information can be considered as primarily benefiting the general public." The language found in Secretary of the Navy Instruction (SECNAVINST) 5720.42B, enclosure (4), which implements the language of the Act, provides that: "In general, charges may be waived when: (a) the recipient of the benefits is engaged in a nonprofit activity designed for public safety, health, or welfare; (b) payment of 21-656-78- -53 the full costs or fees by a state, local government, or nonprofit group would not be in the interest of the program; (c) the incremental cost of collecting the fees would be an unduly large part of the receipts from the activity." While it is clear that ANEVCO is a nonprofit group and that it renders legal services to various individuals, it is not considered that the benefits which would be realized by the requested fee waiver in this particular circumstance would be in the "public interest" or would extend to the "general public" as that term is used in the above citation. The granting of a fee waiver request in this case could establish a precedent which could impose a significant financial burden on the Navy and the Government. Even if it is assumed that ANEVCO and its associates are the only groups which currently represent the type of individuals concerned in the Northeast area, which is contrary to fact, any number of groups could perform this function in the future. Certainly all such groups throughout the country would have to be accorded the same benefits as are accorded to ANEVCO. This would involve very high attendant cost to be absorbed by the Government, a cost which, in these circumstances, is not considered appropriate for the Government to bear. Finally, it is noted that you contend that the charge of the proposed fee, which represents only the direct cost of reproduction, could act as a bar to access to the manuals for ANEVCO. This is neither our intention nor our desire. What is true is that to grant the fee waiver in this case would not be in accordance with the law and Navy regulations and, again, could impose a substantial drain on the public funds, which is a consideration which will not be disregarded in this case. Accordingly, Imust affirm the previous decision to deny ANEVCO's request for a fee waiver. You are again advised of your right to seek judicial review of this decision. Re Freedom of Information Act Appeal of Association of North East Veterans Counseling Organization (ANEVCO). Rear Adm. C. E. McDOWELL, USN, Acting Judge Advocate General (Code 14L), Department of the Navy, Washington, D.C. DEAR ADMIRAL MCDOWELL: This firm now represents ANEVCO in the abovecaptioned appeal. We believe that the standard utilized in rejecting ANEVCO's Freedom of Information Act appeal may have been erroneously applied. The following will briefly summarize the status of this case. The Association of North East Veterans Counseling Organization (ANEVCO) has requested a copy of the Bureau of Naval Personnel Manual (Bupersman). They need this material to effectively counsel veterans in respect to possible discharge modifications. The Navy has agreed to give ANEVCO these documents but demands a fee of $767.00 for the Manual. (The Army, Air Force and Marine Corps on the other hand have each given ANEVCO similar documents without fee.) ANEVCO is an umbrella organization consisting of a number of nonprofit counseling groups which assist former Navy personnel with respect to discharge modifications. Specifically, the Manuals will aid ANEVCO in giving advice to former Navy personnel who believe themselves aggrieved by discharge-related decisions. ANEVCO proposes to set up a military regulations library in the New York City area for use by member groups and other interested persons. Although these documents would obviously facilitate ANEVCO's purpose, lack of funds makes payment of the substantial sum sought by the Navy for the Manuals impossible. |