Case No. VFA-0335, 26 DOE ¶ 80,235

November 26, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Rural Alliance for Military Accountability

Date of Filing: September 29, 1997

Case Number: VFA-0335

On September 29, 1997, the Rural Alliance for Military Accountability (RAMA) filed an Appeal from a determination issued to it under the Freedom of Information Act (FOIA) on September 3, 1997, by the Albuquerque Operations Office of the Department of Energy (DOE/AL). In its Appeal, RAMA challenges the adequacy of DOE/AL’s response to its FOIA request.

I. Background

On September 22, 1996, RAMA requested from the DOE

a copy of all documents pertaining to the transportation routes DOE and/or their contractors are utilizing to transport materials/wastes from DOE’s Rocky Flats facility in Colorado to Los Alamos National Laboratory in New Mexico[, i]ncluding but not limited to maps, Records of Decision, NEPA documentation, risk analysis documentation, accident procedures, emergency preparedness training materials and all written policies pertaining to the transportation of materials/wastes.

Letter from Grace Bukowski, RAMA, to DOE (September 22, 1996). This request was referred to the DOE’s Rocky Flats Field Office and DOE/AL, who were asked to respond directly to RAMA. On September 3, 1997, DOE/AL issued a determination in which it listed each location under its jurisdiction in which a search for responsive documents was conducted. In five of the locations searched, DOE/AL located no documents responsive to RAMA’s request. Responsive documents were located in four locations. All of these documents were released to RAMA in their entirety, with the exception of two classified documents that were sent to the DOE’s Office of Declassification for further review.

RAMA appeals what it characterizes as a “totally inadequate response” from DOE/AL “on the grounds that the partial response does not address the FOIA request, is unresponsive, and contradictory in the information provided. The fact that the Los Alamos National Laboratory, the destination and recipient of nuclear materials, did not provide requested information reflects the

unresponsiveness of the partial response.” Appeal at 1.

II. Analysis

The FOIA requires that documents held by federal agencies generally be released to the public upon request. Following an appropriate request, agencies are required 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. Butler, Vines and Babb, P.L.L.C., 25 DOE ¶ 80,152 (1995); Hideca Petroleum Corp., 9 DOE ¶ 80,108 (1981); Charles Varon, 6 DOE ¶ 80,118 (1980). The FOIA, however, requires that a search be reasonable, not exhaustive. "[T]he 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 Weisberg v. Department of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984). 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 ascertain the extent of the search conducted for documents responsive to RAMA's request, we contacted DOE/AL. The DOE/AL FOIA Office (FOIA Office) identified nine offices under its jurisdiction that it believed might have documents responsive to the request, and therefore had forwarded a copy of the request to each office for a search and identification of relevant documents. Our inquiry in response to the present Appeal revealed the following.

A. Offices That Located Responsive Documents

The DOE/AL’s Operations Management Division (OMD) informed the FOIA Office that it would not be involved in the transport of material/wastes to which the request referred unless an accident occured. See Electronic mail from Geneva Stevenson, OMD, to Terry Apodaca, FOIA Office (November 18, 1997). Therefore, OMD did not conduct a formal search of its files. However, the office did locate a document entitled “Radiological Assistance Program Transportation Emergency Response (RAPTER), Training Course Lesson Plan,” which was released to the appellant in its entirety. Id.

The Environmental Protection Division (EPD) of DOE/AL states that in response to the appellant’s request, it

first searched our NEPA database querying for information about Rocky or Rocky and LANL. From this listing, we made a physical search of the files in the EPD filing system and those in long term storage. These files provide the detail of the more general topic. By individually reading the information in the file, we then discover the associated activities. It was through this method that we ascertained the information that was sent to your office [a memorandum with attachments that was released to the appellant in its entirety]. We also searched through the NEPA EPD library for documents that related to material movement between Rock[y Flats] and LANL. Most of these documents are EAs and EISs with backup environmental study documents. No information was derived from this effort.

Electronic mail from Joseph F. Robbins, EPD, to Terry Apodaca, FOIA Office (November 19, 1997).

The DOE/AL’s Environmental Impact Statement Projects Office (EISPO) stated that “the LANL SWEIS [Site-Wide Environmental Impact Statement] project has been the only one that has specifically been involved with the question of transportation routes for waste/materials from RF to LANL,” and that all of the information in EISPO’s files on this subject were forwarded to the FOIA Office. Electronic mail from Corey Cruz, EISPO, to Terry Apodaca, FOIA Office (November 18, 1997). These documents were released to the appellant in their entirety.

The Transportation Safety Division (TSD) of DOE/AL stated that the request was forwarded for searches to the Chief of the Operations Branch and the Chief of the Support Branch of TSD. Electronic mail from Roseann M. Trujillo, TSD, to Terry Apodaca, FOIA Office (November 20, 1997). A document entitled “Federal Agent Job Analysis” and four documents from TSD’s Transportation Safeguards Training Center were released to the appellant in their entirety. Id. In addition, two responsive documents were identified as classified and were therefore forwarded to other DOE offices for further review.(1)

B. Offices That Located No Responsive Documents

DOE/AL’s Contracts and Procurement Division (CPD) stated that it searched the contract files it maintains for the contract between the DOE and University of California for the management and operation of the Los Alamos National Laboratory, but found no responsive documents. Electronic mail from Timothy R. Coalson, CPD, to Terry Apodaca, FOIA Office (November 14, 1997).

The Safeguards and Security Division (SSD) (formerly Security and Nuclear Safeguards Division) of DOE/AL stated that it identified its “Survey of TSD Shipments” as potentially containing responsive documents, but that these files only encompass TSD’s review of how couriers follow procedures (e.g., communication, deployment) relating to protection of materials en route, and therefore did not contain responsive documents. Electronic mail from Terry Apodaca, FOIA Office, to Steven Goering, OHA (November 17, 1997).

DOE/AL’s Waste Management Division (WMD) stated that it searched its files under the topics “Radioactive waste, Los Alamos National Laboratory, and Transportation. In addition, a search was conducted of the Los Alamos National Laboratory Site Engineer's files and the Waste Management Division Library. No documentation on the above subject was found.” Electronic mail from John M. Evett, WMD, to Terry Apodaca, FOIA Office (November 12, 1997).

The DOE’s Los Alamos Area Office (LAOO) referred the appellant’s request to its Office of Environment and Projects (OEP) and its Office of Facility Operations (OFO). OEP “searched its NEPA files, ER project files, project management files, and four employees of [OEP] searched their personal files.” Electronic mail from Pat Wolford, LAAO, to Terry Apodaca, FOIA Office (November 19, 1997). OFO “searched its files under the subjects of accident procedures and emergency preparedness.” Id. Neither search revealed responsive documents.

The DOE’s Los Alamos National Laboratory (LANL) stated that it “performed an extensive search for [responsive] materials in the following areas: the CIC [Computing, Information, and Communications]-10 CARLA [Computer-Aided Retrieval Los Alamos] Databases; the CIC-14 Reports Collection, and the FSS [Facilities Safeguards and Security]-16 Authors’ Database.” Letter from Mary Edgett, Information Practices Office, LANL, to Elva Barfield, FOIA Office (January 27, 1997). LANL further stated that it contacted personnel in LANL’s Nuclear Materials Technology Division Office, Facilities Safeguards and Security Division, and Environment, Safety, and Health Division. Id. LANL’s search revealed no responsive documents. Id.

LANL’s January 27, 1997 letter to the FOIA Office referenced a memorandum from its Business Operations Division stating that it

has exhausted every possible LANL organization that may have any maps, routing decision papers, risk analysis, NEPA documentation, accident procedures, emergency preparedness training, policies and procedures, etc., without any success. The type of documents requested are usually the responsibility of the originator of the shipments. It is my recommendation that you refer this request to Rocky Flats.

Id.

Based on the information detailed above, we find that the DOE/AL FOIA Office made a conscientious effort to address each element of the appellant’s request and conducted a search reasonably calculated to uncover the materials sought by the appellant. However, based on information obtained subsequent to the filing of the present Appeal, we will remand this matter to DOE/AL to conduct a further search for responsive documents in two offices under DOE/AL’s jurisdiction. First, the DOE/AL’s Environmental Impact Statement Projects Office (EISPO) informed the FOIA Office that,

in the process of preparing the LANL SWEIS, we are analyzing transportation, including transportation between RF and LANL. However, at that time (and indeed, at this time) these analyses have not been completely peer reviewed and approved as part of the Draft LANL SWEIS; as such, they are considered predecisional. When the Draft LANL SWEIS is published, this information will be publicly accessible.

Electronic mail from Corey Cruz, EISPO, to Terry Apodaca, FOIA Office (November 18, 1997). On remand, DOE/AL should contact EISPO to determine whether it had any responsive materials, including any notes or drafts, at the time of the appellant’s request. Any such material should be identified and released, unless subject to a FOIA exemption. In addition, subsequent to the present Appeal, DOE/AL’s Waste Management Division suggested to the FOIA Office that its search include the DOE/AL’s Office of Technology and Site Programs (OTSP). Electronic mail from John M. Evett, WMD, to Terry Apodaca, FOIA Office (November 12, 1997). DOE/AL has agreed to contact OTSP to search for responsive documents. Memorandum of telephone conversation between Terry Apodaca, DOE/AL, and Steven Goering, OHA (November 20, 1997).

Therefore, though we recognize that DOE/AL has already gone to great lengths to locate documents responsive to the appellant’s request, we will remand this matter for the limited purpose of conducting a further search for responsive documents in these two offices. Any responsive documents shall be released to the appellant, or the basis for their withholding explained with specific reference to one or more FOIA exemptions.

It Is Therefore Ordered That:

(1) The Appeal filed by the Rural Alliance for Military Accountability on September 29, 1997, Case Number VFA-0335, is hereby granted as specified in Paragraph (2) below, and is denied in all other respects.

(2) This matter is hereby remanded to the Department of Energy’s Albuquerque 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 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: November 26, 1997

(1) Once this review has been completed and DOE/AL determines whether these two documents can be released, the appellant will be notified and given the opportunity to appeal DOE/AL’s determination to this office.