Glen Milner, Case No. VFA-0278, April 4, 1997

Case No. VFA-0278, 26 DOE ¶ 80,177

April 4, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Glen Milner

Date of Filing: March 7, 1997

Case Number: VFA-0278

On March 7, 1997, Glen Milner (Appellant) filed an Appeal from a determination issued to him on February 12, 1997, by the Freedom of Information Officer at the Department of Energy's Albuquerque Operations Office (DOE/AL). That determination followed the remand from this Office of a case in which the Appellant had appealed a previous determination by the DOE/AL. See Glen Milner, 26 DOE ¶ 80,147 (1996) (Milner). The previous determination by DOE/AL had denied the Appellant's request for a fee waiver with regard to a request for information he submitted pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, implemented by the DOE in 10 C.F.R. Part 1004. In Milner, a partial fee waiver was granted. If the present Appeal were granted, the DOE would be ordered to conduct an additional search and release additional documents under that fee waiver.

I. Background

In a March 22, 1996 FOIA request, the Appellant sought information generated since 1985 pertaining to specially fitted railcars for the transport of nuclear weapons.(1) In May 8, 1996 and October 7, 1996 determinations, DOE/AL denied the Appellant's request for a

fee waiver or alternative fee arrangements.

The Appellant appealed, and in the Milner Decision and Order issued on December 23, 1996, this Office found that a fee waiver should be granted to the Appellant, but only for "documents generated from 1992 until the completion of the search that concern specially fitted railcars for the transport of nuclear weapons." Milner, 26 DOE at 80,650. On remand, DOE/AL determined that it possessed only one responsive document. Although not required to do so, it also summarized for the Appellant what it had learned regarding the railcars.(2) Letter from Elva Ann Barfield, Freedom of Information Officer, DOE/AL to Glen Milner (February 12, 1997) (Determination Letter). The Appellant subsequently filed the present Appeal in which he contends that the search for responsive documents was inadequate. Letter from Glen Milner to Director, OHA (March 7, 1997) (Appeal Letter).(3)

II. Analysis

In responding to a request for information filed under the FOIA, it is well established that an agency must "conduct a search reasonably calculated to uncover all relevant documents." Truitt v. Department of State, 897 F.2d 540, 542 (D.C. Cir. 1990) (Truitt). "The standard of reasonableness which we apply to agency search procedures 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); accord Truitt, 897 F.2d at 542. We have not hesitated to remand a case where it is evident that the search conducted was in fact inadequate. See, e.g., James H. Stebbings, 25 DOE ¶ 80,177 (1996); Hideca Petroleum Corp., 9 DOE ¶ 80,108 (1981); Charles Varon, 6 DOE ¶ 80,118 (1980).

The Appellant makes several arguments in support of his assertion that additional responsive documents must exist. First, the Appellant argues that DOE/AL must have only looked for documents generated after 1992, not in the year 1992 itself. Second, the Appellant believes that the document he was sent was part of another document and requests identification of both the document he was sent and its source document. Third, the Appellant claims that DOE/AL only searched for documents concerning shipping the railcars to Russia, instead of all post-1991 documents dealing with the railcars. Fourth, the Appellant does not believe that DOE/AL searched for documents generated as close to the present date as possible. Fifth, the Appellant notes that the specially fitted railcars have been observed standing in Texas and he therefore believes that documents explaining that fact must exist.

We have examined each of the Appellant's arguments carefully and make the following determinations. First, DOE/AL guessed that perhaps as many as 500 documents concerning the railcars have been generated by the DOE or DOE contractors since 1992. However, it chose to send only the document it felt most clearly explained why the railcars had not gone to Russia. It stated that this document was part of an internal DOE newsletter on operational and physical security which appeared in January 1993. The remainder of the newsletter concerned topics wholly unrelated to the railcars.(4) See March 14th Telephone Memorandum.

This type of extremely restricted search is not what was contemplated in the fee waiver granted in Milner. Our decision clearly granted a fee waiver for all "documents generated from 1992 until the completion of the search that concern specially fitted railcars for the transport of nuclear weapons." Milner, 26 DOE at 80,650. Thus, a search for the additional responsive documents referred to in the March 14th telephone memorandum is necessary.(5) Furthermore, because we were informed in the March 14th telephone conversation that no search had yet been conducted for responsive documents, on remand DOE/AL should search for responsive documents from January 1992 until the date it starts work on this matter on remand. See Thomas P. Koenigs, 26 DOE ¶ 80,131 at 80,577 (1996) (search beyond the normal cutoff, date of request, is appropriate "[w]hen a requester seeks current data and the agency's response is substantially delayed").

Finally, in response to the Appellant's request regarding the current status of the railcars, we note that under the FOIA, agencies are not required to answer questions, but instead are required only to release non-exempt, responsive documents. DiViaio v. Kelley, 571 F.2d 538, 542-43 (10th Cir. 1978). However, in the March 14th telephone conversation, we learned that while the dismantlement process has been slowed by the processing of the railcars under the National Historic Preservation Act, Mr. Richey believes that the dismantlement should be complete within six to nine months.

In conclusion, we find that DOE/AL improperly restricted its search. On remand, DOE/AL shall identify all documents responsive to the Appellant's request and for which a fee waiver was granted, and either release them or provide adequate justification for withholding any portion of them.

It Is Therefore Ordered That:

(1) The Appeal filed by Glen Milner on March 7, 1997, Case Number VFA-0278, is granted to the extent set forth in paragraph (2) below and is denied in all other respects.

(2) This case is hereby remanded to the Albuquerque Operations Office, which shall conduct a search for documents responsive to the Appellant's request and for which a fee waiver was previously granted as described in the above Decision and Order, and shall promptly issue a new determination regarding the result of that search.

(3) 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 in which 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: April 4, 1997

(1)In the March 22 request, the Appellant noted that in 1992 then U.S. Secretary of State James Baker announced that the railcars would be sent to Russia for use in the disarmament of nuclear weapons by that country. The Appellant also stated that since reading several articles describing that plan, he had not heard whether the railcars had been sent and wished to know if they had been sent, and if not, what had happened to them.

(2)DOE/AL had learned that the plan to send the railcars to Russia had been discarded as being infeasible and that the railcars were currently being dismantled. Further, it had learned that the State Department originally made the offer to provide the railcars to Russia, but eventually agreed with Russian officials that the plan was infeasible. Thus, additional responsive documents may exist at the State Department. See Records of Telephone Conversations between Richard Richey, Chief of Engineering, Transportation Safety Division, DOE/AL, and Dawn Goldstein, Staff Attorney, Office of Hearings and Appeals (OHA) (March 18 and 19, 1997). The Appellant may make an additional FOIA request to that agency.

(3)The Appellant is only appealing the adequacy of DOE/AL's search for documents for which he was granted a fee waiver. It appears that he has not pursued the remainder of his original request, i.e. for the railcar documents generated before 1992, for which no fee waiver was granted.

(4)The article, while reproduced by DOE/AL on two pages, contained the notations "continued on page 2" and "continued on page 3." This article was photocopied from the three pages it occupied in the newsletter and was shrunk to fit two pages. The entire article was reproduced for the Appellant. Record of Telephone Conversation between Jim Snyder, Office of Public Affairs and Richard Richey, both of DOE/AL, and Dawn Goldstein (March 14, 1997) (March 14th telephone memorandum).

(5)In the March 14th telephone conversation, we were informed that DOE contractors AlliedSignal Corporation and Mason & Hanger Corporation possess many of these documents. We note that a search for these documents must be conducted, and as required under 10 C.F.R. § 1004.3, any of these documents which are responsive and owned by DOE must be identified and are subject to mandatory release unless exempt.