Case No. VFA-0281, 26 DOE ¶ 80,181

April 25, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner:Information Focus on Energy, Inc.

Date of Filing:March 24, 1997

Case Number: VFA-0281

Information Focus on Energy, Inc. (IFOE) filed an Appeal from a determination issued to it on February 28, 1997 by the Department of Energy's FOIA/Privacy Act Division (DOE/HQ). In that determination, DOE/HQ denied a request for information that IFOE filed on October 22, 1996 pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552. IFOE was denied access to the records contained in the DOE Occurrence Reporting and Processing System (ORPS) operated by the Idaho National Engineering Laboratory for the DOE Office of Environment, Safety and Health. This Appeal, if granted, would require DOE/HQ to release the information that it withheld in the February 28, 1997 determination.

The FOIA requires that documents held by federal agencies generally be released 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 the agency. 5 U.S.C. § 552(b). Those nine categories are repeated in the DOE regulations implementing the FOIA. 10 C.F.R. § 1004.10(b). The DOE regulations further provide that documents exempt from mandatory disclosure under the FOIA shall nonetheless be released to the public whenever the DOE determines that disclosure is in the public interest. 10 C.F.R. § 1004.1.

I. Background

On October 22, 1996, Robert Keller of IFOE(1) submitted a request under the FOIA to DOE for "[a]ccess to the DOE Occurrence Reporting and Processing System operated by the Idaho National Engineering Laboratory for the DOE Office of Environment, Safety and Health. Only access to records designated as not containing classified or other sensitive information is requested." See Letter from IFOE to FOI Officer, DOE/HQ (October 22, 1996). DOE/HQ referred the request to the Office of Operating Experience Analysis and Feedback (DOE/EH).

ORPS is a database containing over 30,000 final and nonfinal (2) occurrence reports submitted by field offices. Events such as injuries and accidents (or anything considered newsworthy by site personnel) are reported to ORPS in a notification report. These reports are finalized within 45 days and sent to the local public reading room, then to DOE/HQ, where the final reports are kept in the headquarters public reading room for 2 years. Some records in the ORPS database have been determined to be unclassified controlled nuclear information (UCNI). DOE/EH gave DOE/HQ the material it found responsive--a diskette containing a list of the title of each final occurrence report categorized at the unusual or emergency level, the facility where the occurrence took place, the report number, the discovery date, and the report date. The list did not include reports containing UCNI or classified information.

DOE/HQ reviewed the request and took the position that IFOE had requested access to the ORPS database itself and not to the records contained in ORPS. DOE/HQ then informed IFOE that "[t]he FOIA allows for access to agency records that exist, not to government computing systems that require other procedures to permit access to the database in those systems." See Letter from Director, FOIA/Privacy Act Division, DOE/HQ, to IFOE (February 28, 1997). Therefore, DOE/HQ denied the request but enclosed the diskette with the determination letter.

On March 24, 1997, IFOE appealed the denial. IFOE claimed that denial of its request violated a DOE order stating Department policy to encourage a positive attitude toward reporting occurrences. See Letter from IFOE to Director, OHA (March 24, 1997) [hereinafter Appeal Letter] at 2. In addition, IFOE alleges that it is not requesting access to government computer systems, but rather "access to the electronic records on a timely basis, such as by downloading from a publicly available Worldwide Web site." Id.

II. Analysis

IFOE raises two issues in its appeal. First, it appeals DOE/HQ's interpretation of the scope of its request. Second, IFOE alleges that denial of its appeal is contrary to the electronic record provisions of the 1996 amendments to the Freedom of Information Act.

A. Scope of the Request

"The FOIA generally provides that any person has a right, enforceable in court, of access to federal agency records . . .." Justice Department Guide To the Freedom of Information Act, U.S. Department of Justice, Office of Information and Privacy (September 1996) (emphasis added) at 3. The FOIA applies to "records" maintained by "agencies" within the executive branch of the federal government. Id. at 12. Thus, DOE/HQ is correct when it states in its final response to IFOE that the FOIA does not provide for access to agency databases. However, DOE/EH interpreted the request as a request for access to the records within the database, and we agree with this interpretation. In an attempt to be responsive given the large volume of material in the database, DOE/EH gave DOE/HQ a list of the titles of final reports in the database and recommended that DOE/HQ release the list to the requester as responsive material. That list was released.

The requester alleges that DOE/HQ has interpreted its request too narrowly. We agree, and find that it should have interpreted the request as a request for access to the records contained in the ORPS database. In our analysis of this case, we reviewed a sample nonfinal occurrence report (3) that was printed from the database. On the basis of that review, we find that nonfinal reports should have been identified as responsive to IFOE's request. However, although the nonfinal reports contain factual material, they also contain information that appears to be predecisional and deliberative. We conclude that Exemption 5 may apply to this data, as may other FOIA exemptions. Accordingly, we grant this portion of the appeal and remand this matter to DOE/HQ so that the nonfinal reports may be reviewed to determine if they contain any non-exempt, releasable data. (4)

B. Request for Electronic Records

IFOE asks in its appeal that it be given access to nonclassified, nonsensitive, nonfinal reports (5) in a timely fashion via the Internet. Appeal Letter at 2-3. The requester alleges that denial of this request is contrary to the 1996 FOIA amendments found in Public Law 104-231. Id. We do not agree. Although the 1996 FOIA amendments mandate that records be made available to the public electronically via a website by November 2, 1997, as of this date, there is no website for ORPS records. Therefore, documents do not exist in the format that IFOE desires, i.e., they are not available on the Internet. Accordingly, we deny this portion of the appeal and find that DOE/HQ is not required under the FOIA to reproduce ORPS records in electronic format on the Internet in response to this appeal.

It Is Therefore Ordered That:

(1) The Appeal filed by Information Focus On Energy, Inc. on March 24, 1997, Case Number VFA-0281, is hereby granted as specified in Paragraph (2) below, and is denied in all other respects.

(2) This matter is hereby remanded to the FOIA/Privacy Act Division, which shall review the request for nonclassified, nonsensitive, nonfinal occurrence reports, and segregate and release non-exempt portions of these reports or issue a new determination adequately justifying continued non-disclosure of this information.

(3) This is a final Order of the Department of Energy from 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 27, 1997

(1)IFOE publishes a newsletter on issues related to commercial and governmental uses of nuclear materials.

(2)Nonfinal occurrence reports reflect the analysis, opinions and recommendations of DOE contractors with direct line responsibility for operation of a facility. These nonfinal reports also contain comments and concerns identified in a review performed by the responsible DOE field office and program office.

(3)Completion of a nonfinal report is the first step in a notification system. Occurrences in the field must be reported to ORPS via a nonfinal report within 24 hours of the event, usually before a thorough investigation of the event can be completed. Thus, data in the report is often inaccurate and the final report of the event may be radically different from the nonfinal report.

(4)Although not required under the FOIA, in view of the thousands of records in the database, it may be beneficial for the requester and DOE if DOE first produces an index of any records found responsive in the same format as the final report listing previously released to IFOE. This index might assist IFOE in selecting the information it would like to obtain, and thus obviate DOE's burden to produce redacted versions of all nonfinal reports.

(5)IFOE noted that the diskette included only emergency level events. DOE/EH is willing to provide the requester with an additional list of lower level final occurrence reports.