Case No. VFA-0235, 26 DOE ¶ 80,139

November 27, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Research Information Services, Inc.

Date of Filing: October 29, 1996

Case Number: VFA-0235

On October 25, 1996, Research Information Services, Inc. (RIS) filed an Appeal from a determination issued on September 25, 1996, by the Department of Energy's (DOE) Office of Arms Control and Nonproliferation (OACN). In that determination, OACN responded to a request for information filed by RIS on July 26, 1996, under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004.

The FOIA generally requires that federal agencies release documents to the public upon request. The FOIA, however, lists nine exemptions that set forth the types of information that may be withheld at the discretion of an agency. 5 U.S.C. § 552(b); 10 C.F.R. § 1004.10(b). The DOE regulations further provide that the DOE release to the public a document exempt from mandatory disclosure under the FOIA whenever the DOE determines that disclosure is in the public interest and not contrary to other laws. 10 C.F.R. § 1004.1.

I. BACKGROUND

In its request, RIS sought information pertaining to determinations by the Secretary of Energy under 10 C.F.R. Part 810 concerning the People's Republic of China (PRC). Part 810 consisted of a series of regulations promulgated by the DOE in order to implement section 57b of the Atomic Energy Act. That section empowers the Secretary of Energy to authorize U.S. persons to engage directly or indirectly in the production of special nuclear material outside the United States.

On September 25, 1996, OACN issued a determination responding to RIS's request

in which it explained:

During the past year, we have had other FOIA inquiries for records similar to that which you have requested. As a result, we have placed, with some exceptions, in the Freedom of Information Reading Room all records pertaining to specific determinations made by the Secretary of Energy authorizing U.S. firms, such as Westinghouse and Stone & Webster, to engage in specifically authorized activities in the PRC.

Determination Letter at 1. The determination letter further informed RIS that: (1) records that had originated with other Executive Branch agencies were not among those records kept in the DOE Reading Room; (2) OACN had forwarded RIS's request to those agencies at which responsive documents had originated; (3) several responsive documents have not been placed in the DOE Reading Room because they are classified; and (4) information was withheld under Exemption 4 from "[r]ecords pertaining to Part 810 authorizations granted to Stone & Webster to conduct activities in the PRC . . ." Id. at 1-2.

On October 29, 1996, RIS filed the present Appeal contending that the absence of several categories of responsive documents from the DOE Reading Room is evidence that OACN's search for responsive documents was inadequate. RIS also contends that OACN improperly withheld information under Exemption 4.

II. ANALYSIS

Following an appropriate request, the FOIA requires agencies to search their records for responsive documents. We have stated on numerous occasions that a FOIA request deserves a thorough and conscientious search for responsive documents, and we have not hesitated to remand a case where it is evident that the search conducted was in fact inadequate. See, e.g., Hideca Petroleum Corp., 9 DOE ¶ 80,108 (1981); Charles Varon, 6 DOE ¶ 80,118 (1980). We review the adequacy of an agency's search under a "standard of reasonableness." McGehee v. CIA, 697 F.2d 1095, 1100-01 (D.C. Cir. 1983), modified in part on rehearing, 711 F.2d 1076 (D.C. Cir. 1983). This standard "does not require absolute exhaustion of the files; instead, it requires a search reasonably calculated to uncover the sought materials." Miller v. Department of State, 779 F.2d 1378, 1384-85 (8th Cir. 1985).

After conducting a search for responsive documents under the FOIA, the statute requires that the agency provide the requester with a written determination notifying the requester of the results of that search and, if applicable, of the agency's intentions to withhold any of the responsive information under one or more of the nine statutory exemptions to the FOIA. 5 U.S.C. § 552(a)(6)(A)(i). The statute further requires that the agency provide the requester with an opportunity to appeal any adverse determination. Id.

The written determination letter serves to inform the requester of the results of the agency's search for responsive documents and of any withholdings that the agency intends to make. In doing so, the determination letter allows the requester to decide whether the agency's response to its request was adequate and proper and provides this office with a record upon which to base its consideration of an administrative appeal.

It therefore follows that the agency has an obligation to ensure that its determination letters: (1) adequately describe the results of searches; (2) clearly indicate which information was withheld, and (3) specify the exemption(s) under which information was withheld. Burlin McKinney, 25 DOE ¶ 80,205 at 80,767 (1996). Without an adequately informative determination letter, the requester and the review authority must speculate about the adequacy and appropriateness of the agency's determinations. Id.

While the determination letter issued to RIS clearly indicates that responsive documents were placed in the DOE Reading Room, withheld under Exemption 4, withheld because of classification concerns, or forwarded to other executive branch agencies where they had originated, it did not indicate which responsive documents fit into each of these categories. Most importantly, the determination letter does not identify the documents it considers to be responsive to RIS. As a result, the determination letter issued to RIS is inadequate. We are left without information that we need in order to determine whether OACN's search for responsive documents was adequate. Without knowing which information OACN determined to be responsive to RIS's request we are unable to assess the propriety of OACN's response. Moreover, since the determination letter failed to: (1) distinguish between the information that was withheld and the information that is subject to further processing; and (2) indicate the specific exemption(s) under which each document was withheld, we are unable to assess the propriety of OACN's withholdings and referral of information to other agencies.

Accordingly, we shall remand this matter to the OACN with instructions to issue a new determination letter. The new determination letter should specifically identify each document in the DOE's possession that is responsive to RIS's request and indicate whether the document is available in the DOE Reading Room, withheld under Exemption 1 or 3 as classified (or undergoing classification review), withheld under Exemption 4, or referred to the executive branch agency where the document had originated. For each responsive document the OACN has found to have originated with another agency, the new determination letter should indicate the name of the agency and the date on which RIS's request was forwarded to that agency.

III. CONCLUSION

For the reasons set forth above, we are remanding this matter to the Office of Arms Control and Nonproliferation with instructions promptly to issue a new determination letter that complies with the requirements discussed above.

It Is Therefore Ordered That:

(1) The Appeal filed by Research Information Systems, Inc. on October 29, 1996, Case Number VFA-0235, is hereby granted and remanded to the Office of Arms Control and Nonproliferation for further processing in accordance with the instructions set forth above.

(2) This is a final Order of the Department of Energy of which any aggrieved party may seek judicial review pursuant to the provisions of 5 U.S.C. § 552(a)(4)(B). Judicial review may be sought in the district where the requester resides or has a principal place of business, or in which the agency records are situated, or in the District of Columbia.

George B. Breznay

Director

Office of Hearings and Appeals

Date: November 27, 1996