Case No. VFA-0318, 26 DOE ¶ 80,207

August 6, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner:Egan & Associates

Date of Filing: July 21,1997

Case Number: VFA-0318

On July 21, 1997, Egan & Associates (the Firm) filed an Appeal from a partial determination issued on July 9, 1997, by the Director of the FOIA/Privacy Act Division of the Office of the Executive Secretariat (Headquarters FOIA Office) of the Department of Energy (DOE). This partial determination was issued in response to a request for information filed under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004. This Appeal, if granted, would require the DOE to (1) release or explain the reason for withholding an attachment to a document, and (2) release all other documents responsive to the Firm's FOIA request.

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 an agency. 5 U.S.C. § 552(b). DOE regulations further provide that a document exempt from disclosure under the FOIA shall nonetheless be released to the public whenever DOE determines that disclosure is in the public interest. 10 C.F.R. § 1004.1.

I. BACKGROUND

In a FOIA request dated February 24, 1997, the Firm sought documents submitted to or sent by any DOE Headquarters office concerning Envirocare of Utah, Inc., or Waste Control Specialists LLC (WCS) of Pasadena, Texas. In a letter dated March 14, 1997, the Firm narrowed the scope of the FOIA request by designating the offices that DOE should search for responsive records.

On July 9, 1997, the Director of the Headquarters FOIA Office issued a partial response to the Appellant's FOIA request. In this partial response, the Director indicated that a data

system that tracks the correspondence of three different offices had been searched, and that ten documents responsive to the FOIA request had been identified. She further indicated that, except for an attachment to Document No. 8, these documents were being provided to the Firm without deletion. No reason was provided for withholding the attachment to Document No. 8. The Director also stated that other documents responsive to the FOIA request were being reviewed for a "releasability determination," and other offices were still searching for additional documents. Finally, the Director said that the Firm would be contacted when the search and review were complete.

On July 21, 1997, the Firm appealed this partial determination on two grounds. First, it argues that DOE should release all documents responsive to its FOIA request immediately because DOE had failed to process the request within the time required by law, and has still not issued a complete response.(1) Second, the Firm alleges that the Headquarters FOIA Office improperly failed to explain its reason for withholding the attachment to Document No. 8.(2)

In reviewing this Appeal, we contacted Joan Ogbazghi, FOIA Officer, Headquarters FOIA Office, to learn the reason that the attachment to Document No. 8 had not been released. Ms. Ogbazghi stated that this attachment was being reviewed for a "releasability determination." Ms. Ogbazghi further stated that a determination will issue that either releases the attachment or provides a reason for withholding it. See Memorandum of Telephone Conversation between Joan Ogbazghi, FOIA/Privacy Act Specialist, and Linda Lazarus, OHA Staff Attorney (July 24, 1997).

II. ANALYSIS

As this Appeal is based on DOE's alleged failure to process a FOIA within the time specified by law, and an Authorizing Official has not made a final determination concerning the records at issue, OHA does not have the jurisdiction to decide the matters raised by the Firm. Accordingly, we will dismiss the Appeal.

The Firm's arguments are based on DOE's failure to issue a complete and timely response to its FOIA request. In its first argument, the Firm has clearly requested relief because DOE had not complied with the time requirements for processing a FOIA request, and had still not issued a complete determination. The Firm's second argument, concerning DOE's failure to provide a reason for withholding the attachment to Document No. 8, is also rooted in the fact that DOE has not issued a final determination. As detailed above, the Headquarters FOIA Office did not release this attachment or provide a reason for withholding it because a "releasability" determination had not yet been made. See Memorandum of Telephone Conversation between Joan Ogbazghi, FOIA/Privacy Act Specialist, and Linda Lazarus, OHA Staff Attorney (July 24, 1997).

Section 1004.8(a) of the DOE regulations grants OHA jurisdiction to consider FOIA appeals only in the following circumstances:

When the Authorizing Officer has denied a request for records in whole or in part or has responded that there are no documents responsive to the request . . . or when the Freedom of Information Officer has denied a request for waiver of fees.

Section 1004.8(a) has been construed to confer jurisdiction on OHA only when an Authorizing Official has issued a determination that (1) denies a request for records, (2) states there are no records responsive to the FOIA request, or (3) denies a request for a waiver of fees. Suffolk County, 17 DOE ¶ 80,111 at 80,524 (1988). OHA has consistently held that Section 1004.8(a) does not confer jurisdiction when the requester has not received an initial determination from an Authorizing Official, or when an appeal is based on the agency's failure to process a FOIA within the time specified by law. John H. Hnatio, 13 DOE ¶ 80,119 at 80,566 (1985) (dismissing appeal because no determination issued); Tulsa Tribune, 11 DOE ¶ 80,161 at 80,741 (1984) (no administrative remedy for agency's non- compliance with a timeliness requirement).(3)

It Is Therefore Ordered That:

(1) The Appeal filed by Egan & Associates on July 21, 1997, is hereby dismissed.

(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 situated, or in the District of Columbia.

George B. Breznay

Director

Office of Hearings and Appeals

Date: August 6, 1997

(1)Ordinarily DOE is required to respond to a FOIA request within ten working days. The DOE may take another ten days to respond if "unusual circumstances" delay processing. Section 1004.5(d)(1), (2).

(2)Both the FOIA and DOE regulations require the agency to provide a reasonably specific justification for withholding documents or portions of documents. Mead Data Central v. Department of the Air Force, 566 F.2d 242 (D.C. Cir. 1977); Data Technology Industries, 4 DOE ¶ 80,118 (1979).

(3)Because it did not receive a timely response to its FOIA request, the Firm is considered to have exhausted its administrative remedies. 10 C.F.R. §1004.5(d)(4); 5 U.S.C. §552 (a)(6)(c). Accordingly, under the FOIA, the Firm may seek the release of the requested documents in federal district court. 5 U.S.C. §552 (a)(4)(B). However, the agency's failure to comply with the ten day time limit does not result in a waiver of any FOIA exemptions. See Suffolk County, 17 DOE ¶ 80,111 at 80,524 (1988) ; James E. Davis, 11 DOE ¶ 80,151 at 80,689 (1983).