Case No. VFA-0322, 26 DOE ¶ 80,215

August 28, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Burlin McKinney

Date of Filing: August 1, 1997

Case Number: VFA-0322

On August 1, 1997, Burlin McKinney filed an Appeal from a determination issued on July 23, 1997, by the Department of Energy's Oak Ridge Operations Office (DOE/OR). The determination responded to a request for information filed under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the Department of Energy (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. However, Congress has provided nine exemptions to the FOIA that set forth the types of information agencies are not required to release. Under the DOE's regulations, a document that is exempted from disclosure under the FOIA shall nonetheless be released to the public whenever the DOE determines that disclosure is not contrary to federal law and in the public interest. 10 C.F.R. § 1004.1.

I. Background

Mr. McKinney is an employee of Lockheed Martin Energy Systems, Inc., (LMES) at the DOE's Y-12 plant in Oak Ridge, Tennessee. In 1996, in response to a request from Mr. McKinney, LMES conducted a search and made an inventory of documents located in Building 9201-5E of the Y-12 plant that relate to beryllium. See Memorandum from J.L. Jenkins, Jr. to B.G. Ashdown (June 3, 1996). Mr. McKinney subsequently submitted a FOIA request to DOE/OR for all of the documents appearing on the inventory (with the exception of six boxes). In DOE/OR's July 23, 1997 determination, it stated,

A determination has been made that to process your request at this time would be a burdensome effort on the part of the Department of Energy and the contractor. Prior to copying the responsive records, a review would have to be conducted to identify any classified documents and/or material protected by the Privacy Act. We cannot justify the high costs and burdensome effort to review the records at this time.

Letter from Amy L. Rothrock, DOE/OR, to Burlin McKinney (July 23, 1997).

II. Analysis

In responding to the present appeal, DOE/OR stated that it is "not ?withholding' documents and invited Mr. McKinney to narrow his search to a more reasonable scope. As yet, he has not offered to narrow the scope of this request." Electronic mail from Amy Rothrock, DOE/OR to Steven Goering, OHA (August 12, 1997). However, the FOIA places no limit on the scope of a request for records. Requests only must "reasonably describe" the records being requested and comply with an agency's procedures for the submission of the request. 5 U.S.C. § 552(a)(3)(A), (B). Because Mr. McKinney's request was quite specific in identifying the records he is seeking (by reference to an inventory of those records which LMES has already compiled), we cannot find that he has not reasonably described these records, and we have no reason to conclude that the Appellant's request failed to satisfy the procedural requirements of the DOE regulations.

A determination issued in response to a properly submitted FOIA request is required by the DOE FOIA regulations to include a

statement of the reason for denial, containing a reference to the specific exemption under the Freedom of Information Act authorizing the withholding of the record and a brief explanation of how the exemption applies to the record withheld, and a statement of why a discretionary release is not appropriate.

10 C.F.R. § 1004.7(b).

Because DOE/OR clearly did not in its determination release the documents reasonably described and requested by Mr. McKinney, we do not agree that DOE/OR has not withheld documents from the Appellant. We conclude, therefore, that DOE/OR's determination that it could not "justify the high costs and burdensome effort to review the records at this time" is inadequate justification for withholding the documents in light of the requirements of the FOIA and the DOE regulations. Cf. Ruotolo v. Department of Justice, 53 F.3d 4, 10 (2d Cir. 1995) (rejecting as inadequate agency's response that requesters "?restructure' their request in order to ?narrow[ ] its scope and hence, its cost.'").

It is true that a search for documents in response to a FOIA request can be unduly burdensome. The FOIA requires that a search for responsive documents be reasonable, not exhaustive. Miller v. Department of State, 779 F.2d 1378, 1384-85 (8th Cir. 1985); accord, Weisberg v. Department of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984). We see no evidence, however, that an unreasonable search would be required to locate the records requested by Mr. McKinney, as the copy of the inventory produced by LMES indicates that the location of these records has already been determined. See Attachment to memorandum from J.L. Jenkins, Jr. to B.G. Ashdown (June 3, 1996); Yeager v. DEA, 678 F.2d 315, 322, 326 (D.C. Cir. 1982) (holding valid request encompassing over 1,000,000 computerized records: "The linchpin inquiry is whether the agency is able to determine ?precisely what records [are] being requested'" (quoting S. Rep. No. 854, 93d Cong., 2d Sess. 12 (1974)).

Accordingly, we will remand this case to DOE/OR, which shall issue a new determination releasing to Mr. McKinney the records he has requested or explaining the basis for withholding information from the Appellant, with specific reference to one or more FOIA exemptions.

For the reasons explained above, the present Appeal will be granted as specified above. In all other respects, the Appeal shall be denied.

It Is Therefore Ordered That:

(1) The Freedom of Information Act Appeal filed by Burlin McKinney, Case No. VFA-0322, is hereby granted as specified in Paragraph (2) below, and is denied in all other respects.

(2) This matter is hereby remanded to the DOE's Oak Ridge Operations Office, which shall issue a new determination in accordance with the instructions set forth in the above Decision and Order.

(3) 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 28, 1997