Case No. VFA-0301, 26 DOE ¶ 80,204

July 21, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Nevada Indian Environmental Coalition

Date of Filing: June 6, 1997

Case Number: VFA-0301

On June 6, 1997, the Nevada Indian Environmental Coalition (NIEC) filed an Appeal from an April 18, 1997 determination by the Director of the Freedom of Information and Privacy Act Division of the Office of the Executive Secretariat (Director) of the Department of Energy (DOE). In that determination, the Director partially granted a request for information the Appellant made under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004. In its Appeal, the NIEC asks that we order the Director to conduct a new search for responsive material.

The FOIA requires that federal agencies generally release documents to the public upon request. The FOIA, however, lists nine exemptions that set forth the types of information that an agency may withhold at its discretion. 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 for information, the NIEC sought copies of documents pertaining to the transportation of spent nuclear fuel from foreign sources across the northern part of Nevada. In her determination letter, the Director enclosed copies of several documents, but also stated that the DOE did not have responsive documents for the following three NIEC document requests:

1. List of all funding for any purpose relating to these particular shipments [of spent nuclear fuel] provided by DOE to government entities, including Tribes, states and local governments, showing the amounts given to each entity.
2. Resumes of all DOE personnel involved in working with the Tribes in Nevada concerning these shipments [of spent nuclear fuel].
3. Copy of the Draft Environmental Impact Statement (EIS).

In its appeal, NIEC argues that the Director should have documents responsive to the above-mentioned requests and the Director should release them.

With regard to the request for a list of all funding, the NIEC states that it has reason to believe that the Shoshone-Bannock Tribe received funding concerning shipments of spent nuclear fuel. Thus, the NIEC believes that documents must exist concerning this transaction. Furthermore, the NIEC states that the Director acknowledged in her determination letter that the Western Governors Association received funds and that the DOE failed to provide copies to the NIEC showing the amount of these funds. Also, the NIEC contends that the DOE did not, in good faith, search for the requested information and that the DOE improperly withheld responsive information.

The NIEC also argues that the DOE should provide it with the "credentials of the experts" working with Tribes concerning the shipment of radioactive materials. The NIEC contends that if the DOE conducted a good faith search for resumes of DOE personnel, the DOE would have found responsive documents. Finally, the NIEC states that on April 21, 1995, the DOE published a draft EIS that it should have provided to many of the member NIEC Tribes for comments pursuant to federal laws and the Code of Federal Regulations. The NIEC states that none of its member Tribes received a draft of the EIS or a request for comments. Also, the NIEC states that it is illogical to believe that the DOE destroyed all of its copies of the draft EIS, since information contained in a draft EIS would not appear in the final version. Thus, the NIEC contends that the DOE must have this important information on file and that the DOE would have found a draft EIS if it had conducted a good faith search.

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). In cases such as these, "[t]he issue is not whether any further documents might conceivably exist but rather whether the government's search for responsive documents was adequate." Perry v. Block, 684 F.2d 121, 128 (D.C. Cir. 1982) (emphasis in original).

To determine whether an agency's search was adequate, we must examine its actions 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). Furthermore, the determination of whether a search was reasonable is "dependent upon the circumstances of the case." Founding Church of Scientology v. National Security Agency, 610 F.2d 824, 834 (D.C. Cir. 1979).

In reviewing the Appeal, we contacted a knowledgeable representative of the DOE Office of Environmental Management to ascertain the validity of the NIEC's contention that there exist documents concerning funding related to spent nuclear fuel provided by the DOE to government entities, including Tribes, states and local governments.(1) The DOE representative informed us that the DOE possesses a document responsive to the NIEC request.(2) This document is a record of the $250,000 grant that the DOE made to the Western Governors Association. Accordingly, we will remand this matter to the Director to release the responsive document or provide a detailed explanation for withholding any such information.

In the NIEC's Appeal and in discussions we had with the NIEC regarding its Appeal, the NIEC amended its request for resumes.(3) An NIEC representative stated that the NIEC is not interested only in resumes of personnel involved in working with the Tribes in Nevada concerning spent fuel shipments. Instead, the NIEC stated that it seeks employment background information for these individuals regardless of the source. The NIEC states this is the type of employment background information that can be found in SF-171 forms and that it does not wish to have any personal information about the employee, such as a social security number or any addresses. While the Director's response to the NIEC's request for resumes was not erroneous and we are not obligated to allow the NIEC to modify its request on appeal, since we are remanding the matter, as discussed above, we will request that the Director review the NIEC's amended request for information and send to the NIEC any documents responsive to the request for employment background information she may find or state the reasons why any responsive documents are exempt from mandatory disclosure.

With respect to the draft EIS requested by the NIEC, we have confirmed that the DOE's Office of NEPA Policy and Assistance has a copy of the draft EIS.(4) Thus, we will direct the Director to release the draft EIS or provide a detailed explanation for withholding any portion of the document.(5)

It Is Therefore Ordered That:

(1) The Appeal filed by the Nevada Indian Environmental Coalition on June 6, 1997, is hereby granted as set forth in paragraph (2) below.

(2) This matter is hereby remanded to the Director of the Freedom of Information Act and Privacy Act Division of the Office of the Executive Secretariat of the Department of Energy, who shall release a copy of the record of the $250,000 grant that the DOE made to the Western Governors Association or provide a detailed explanation for withholding any such information. In addition, the Director should consider the Nevada Indian Environmental Coalition's amended request for employment background information of the type that can be found in SF-171 forms and send to the NIEC any responsive information she may find or state the reasons why any responsive documents are exempt from mandatory disclosure. Finally, the Director shall release a copy of the "Draft Environmental Impact Statement on a Proposed Nuclear Weapons Nonproliferation Policy Concerning Foreign Research Reactor Spent Nuclear Fuel" (DOE/EIS-0218-D) or provide a detailed explanation for withholding any such information.

(3) This is a final order of the Department of Energy from which any aggrieved party may seek judicial review. 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: July 21, 1997

(1)1/ See records of telephone conversations between Leonard M. Tao, Office of Hearings and Appeals Staff Attorney, and Brandt Petrasek, DOE Office of Environmental Management.

(2)The DOE representative also confirmed that in the past the Shoshone-Bannock Tribe has received funding for transportation activities. This funding was for general emergency response activities related to highway shipments of waste and materials coming out of the Idaho National Engineering and Environmental Laboratory (INEEL), but not for any spent fuel shipments.

(3)See Record of July 10, 1997 Telephone Conversation between Leonard M. Tao, Office of Hearings and Appeals Staff Attorney, and Anita Collins, NIEC.

(4)See Record of July 16, 1997 Telephone Conversation between Leonard M. Tao, OHA Staff Attorney, and Tomisha Addison, Office of NEPA Policy and Assistance.

(5)The issue of whether or not the DOE should have provided a copy of the draft EIS to the NIEC pursuant to federal law or the Code of Federal Regulations is not a matter relevant to the FOIA and thus is not within the proper scope of this appeal.