Case No. VFA-0309, 26 DOE ¶ 80,206

August 4, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Arter & Hadden

Date of Filing: July 7, 1997

Case Number: VFA-0309

On July 7, 1997, the Office of Hearings and Appeals (OHA) received an Appeal filed by Arter & Hadden (A&H), a private law firm, from a determination issued to it by the Freedom of Information Officer at the Department of Energy's (DOE) Albuquerque Operations Office (hereinafter referred to as "the Officer"). The Officer's determination was issued in response to a request for information that was submitted in accordance with the provisions of 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 documents held by the federal government be released to the public upon request. The Appeal, if granted, would require the Officer to conduct a further search for documents responsive to the request.

I. Background

In its FOIA request, A&H sought access to a copy of a July 10, 1974 report pertaining to the ownership of ponds at a Uranium Mill Tailings Remediation Action Project site (UMTRA site) located at Falls City, Texas, and any other documents relating to that report.(1) This report was prepared by the Atomic Energy Commission (AEC), a predecessor agency of the DOE, in conjunction with the Environmental Protection Agency and the Texas Department of Health.

In the determination, the Officer stated that the search for responsive documents encompassed the Albuquerque Office's Environmental Restoration Division (ERD) and Office of Chief Counsel, and that no documents responsive to A&H's request could be located.

In its Appeal, A&H has submitted documents that refer to the July 10, 1974 report. The appellant contends that the Albuquerque Office has jurisdiction over the UMTRA site, and that the requested document should therefore be in the possession of that Office.

II. Analysis

In responding to a request for information 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 files; instead it requires a search reasonably calculated to uncover sought materials." Miller v. Department of State, 779 F.2d 1378, 1384-85 (8th Cir. 1985); accord Truitt, 897 F.2d at 542. The fact that the results of a search may not meet with the requester's expectations does not necessarily mean that the search was inadequate. Robert Hale, 25 DOE ¶ 80,101 at 80,501 (1995). Instead, in evaluating the adequacy of a search, our inquiry generally focuses on the scope of the search that was performed. See, e.g., Richard J. Levernier, 25 DOE ¶ 80,102 (1995).

We have reviewed the scope of the search that was performed, and we find that search encompassed each part of the Albuquerque Office in which the requested report and any related documents could reasonably be expected to be found. The ERD, which had oversight responsibilities for the UMTRA site, and the Chief Counsel's Office were searched. The Chief Counsel's Office handled licensing proceedings before the Texas Department of Health. See memorandum of July 28, 1997 telephone conversation between Woody Woodworth, ERD, and Robert Palmer, OHA Staff Attorney. Furthermore, in addition to the search described in the determination letter, the request was referred to two DOE contractors that were involved in operations at the UMTRA site. See memorandum of July 24, 1997 telephone conversation between James Snyder, Albuquerque Operations Office, and Robert Palmer, OHA Staff Attorney. Despite these efforts, no responsive documents were found. Based on the record in this proceeding, we find that the search conducted by the Albuquerque Office was reasonably calculated to find the requested report and any related documents, and was therefore adequate. A&H's Appeal will be denied.

It Is Therefore Ordered That:

(1) The Appeal filed by Arter & Hadden on July 7, 1997 is hereby denied.

(2) This is a final Order of the Department of Energy from which any aggrieved party may seek judicial review pursuant to 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 located, or in the District of Columbia.

George B. Breznay

Director

Office of Hearings and Appeals

Date: August 4, 1997

(1) */ Uranium mill tailings are the waste product that is produced during the processing of uranium ore. An UMTRA site is a location where corrective actions have been taken to ensure that such tailings are stored in an environmentally safe manner. The "ponds" in question consist of pits resulting from the mining of the ore that have become filled with water.