Case No. VFA-0283, 26 DOE ¶ 80,183

April 25, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Research Information Services, Inc.

Date of Filing: March 27, 1997

Case Number: VFA-0283

On March 27, 1997, Research Information Services, Inc. (RIS), filed an Appeal from a determination issued to it on February 26, 1997, by the Nuclear Transfer and Supplier Policy Division of the Office of Arms Control and Nonproliferation (OACN) of the Department of Energy (DOE). That determination concerned a remand of a RIS Appeal of a previous OACN determination concerning a request for information submitted by RIS pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004. If the present Appeal were granted, OACN would be required to conduct a further search for responsive material and to prepare a list identifying the documents responsive to the request.

I. Background

In its original, July 26, 1996 request, RIS sought all 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 of 1954. That section empowers the Secretary of Energy to authorize United States persons to engage directly or indirectly in the production of special nuclear material outside the United States. RIS was particularly interested in information regarding Stone and Webster Engineering Corporation and Westinghouse Electric Corporation (Westinghouse).

On September 25, 1996, OACN issued its determination, stating that the information RIS was requesting was in the Freedom of Information Reading Room because there had been other FOIA inquires for similar records. Determination Letter dated September 25, 1996, from Kenneth N. Luongo, Senior Advisor to the Secretary for Nonproliferation and Policy and Direct of the Office of Arms Control and Nonproliferation, to Heidi M. Strobel, Director, Legal Research, RIS, at 1. Further, OACN informed RIS that some information was not in the Reading Room because (1) it had originated with other Executive Branch agencies and RIS' request had been forwarded to those agencies for a determination, (2) it was

classified information and was undergoing a review by the Office of Declassification for a determination of what could be released, or (3) it was withheld under Exemption 4 of the FOIA. Id. at 1-2.

On October 29, 1996, RIS filed an Appeal with this office, claiming 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. This office issued a Decision and Order on November 27, 1996, ordering that OACN issue a new determination letter. That new determination letter was to specifically identify each document in the DOE's possession that is responsive to RIS' request and indicate whether the document was available in the Reading Room, withheld under Exemption 4, undergoing classification review, or referred to another Executive Branch agency. Finally, for each responsive document the OACN found to have originated with another agency, the determination letter was required to indicate the name of the agency and date on which the request was forwarded to that agency. Research Information Services, Inc., 26 DOE ¶ 80,139, at 80,592 (1996).

On February 26, 1997, OACN issued another determination letter to RIS. This letter included specific listings of documents that originated with the Departments of State, Commerce, and Defense; the Arms Control and Disarmament Agency; and the Nuclear Regulatory Commission. It also provided a listing of responsive DOE documents currently undergoing classification review. Determination Letter dated February 26, 1997, from Trisha Dedik, Director, Nuclear Transfer and Supplier Policy Division, Office of Arms Control and Nonproliferation to Heidi M. Strobel, Director, Legal Research, RIS, at 1. The determination letter further stated that all other documents are in the Reading Room as a portion of a file containing Part 810 material that was collected in response to other, almost identical requests that led OACN to place the information in the Reading Room.(1) However, because those documents number in the hundreds, a specific listing was not prepared. Id. at 2. On March 26, 1997, RIS appealed this determination, claiming that DOE has (1) still not searched for and made available all the responsive unclassified, non- exempt agency records at DOE and (2) willfully disregarded the November 27, 1996 Decision and Order by refusing to provide a list of document responsive to RIS' request. Appeal Letter received March 27, 1997, from Heidi M. Strobel, Director, Legal Research, RIS, to Director, Office of Hearings and Appeals (OHA), at 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). "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., Glen Milner, 17 DOE ¶ 80,132 (1988).

In reviewing the present Appeal, we contacted OACN to ascertain whether any other documents exist that are responsive to RIS' request. In its first Appeal, RIS indicated that some of the information in the Reading Room led it to believe that OACN was withholding information or had not done a complete search. For example, Westinghouse has a specific authorization that required it to report to DOE twice a year. Only one of those semi-annual reports is in the Reading Room. OACN indicated that the reports contain company-specific, proprietary information and should be withheld under Exemption 4. However, OACN has never justified their withholding to RIS or even indicated that the Westinghouse reports exist. After we spoke with OACN, it requested that we remand the matter so that it can review the semi-annual reports and issue a new determination either fully justifying the withholding of the Westinghouse reports under Exemption 4 or releasing this information. Memorandum of Telephone Conversation dated April 16, 1997, between Janet R. H. Fishman, Attorney-Examiner, OHA, and Jim Kratz, OACN. We have no evidence before us that tends to show that OACN has failed to identify other information responsive to RIS' request. Finally, in respect to RIS' second claim that OACN has not provided a list identifying the documents responsive to its request, OACN is not required to provide a list of information that it is releasing. By making the Part 810 information available in the Reading Room, it has released that information. We will grant RIS' Appeal in part and remand the matter to OACN for a new determination that either justifies the withholding of the semi-annual Westinghouse reports under Exemption 4 or releases the information.

It Is Therefore Ordered That:

(1) The Appeal filed on March 27, 1997, by Research Information Services, Inc., Case No. VFA-0283, is hereby granted to the extent provided in paragraph (2) below and denied in all other respects.

(2) This matter is hereby remanded to the Office of Arms Control and Nonproliferation for a new determination that either justifies the withholding of the semi-annual reports under Exemption 4 or releases the 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 25, 1997

(1) RIS is requesting Part 810 information about dealings with the PRC. Therefore, some of the information in the Reading Room dealing with other countries would not be responsive. However, the vast majority of Part 810 information deals with the PRC. Memorandum of Telephone Conversation dated April 9, 1997, between Janet R. H. Fishman, Attorney-Examiner, OHA, and Jim Kratz, OACN.