Case No. VFA-0338, 26 DOE ¶ 80,229

October 31, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner:Natural Resources Defense Council

Date of Filing:October 2, 1997

Case Number:VFA-0338

On October 2, 1997, the Natural Resources Defense Council (NRDC) filed an Appeal from a September 4, 1997 determination by the Freedom of Information Officer (FOI Officer) of the Albuquerque Operations Office of the Department of Energy (DOE). In that determination, the FOI Officer partially granted a request for information the Appellant filed under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented in 10 C.F.R. Part 1004. In its Appeal, the NRDC asks that we order a search for additional responsive documents.

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 shall 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 NRDC sought copies of documents containing information on the number of nuclear warheads disassembled since 1945. In a June 27, 1997 "partial response" letter, the FOI Officer enclosed responsive documents and informed the NRDC that the Los Alamos National Laboratory (LANL) was in the process of searching for more responsive documents. In her September 4, 1997 determination letter, the FOI Officer informed the NRDC that LANL completed its search and found no additional responsive material.

In its Appeal, the NRDC argues that the Albuquerque Operations Office provided it with data for nuclear warhead dismantlements at the Pantex plant, but provided no data for any other DOE facilities involved in dismantlements, including Los Alamos, Sandia, Burlington, Medina, Clarksville,

and Y-12 at Oak Ridge. The NRDC states "[i]t would be extraordinary if DOE did not maintain records of the dismantlements of some 27,000 nuclear warheads that are believed to have been dismantled prior to 1975, at plants other than Pantex."

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 several DOE employees and a representative of the FOI Officer to ascertain the validity of the NRDC's contention that there must exist additional responsive information. As a result of these discussions, several facts came to light. First, the FOI official at the Oak Ridge Operations Office informed us that several facilities, including Oak Ridge, Savannah River, the Mound facility, and Kansas City, were involved in the dismantlement of various weapon components, but not the actual nuclear warheads. From our discussions, it appears that the DOE disassembled the warheads at Pantex.

Second, it appears that other records may exist at Sandia which, if reviewed cumulatively, could lead to the summary totals the NRDC seeks. These other records, if they exist, may be in the form of annual summaries of assemblies and dismantlements of individual weapons. We will require the Albuquerque Operations Office to search for these records and, if they exist, determine if they are responsive.

Finally, there is a chance that responsive archived records may exist. The representative of the FOI Officer informed us that the Albuquerque Operations Office is continuing to search for records that the DOE may have archived. Since the Albuquerque Operations Office search is ongoing, we will require the Albuquerque Operations Office to complete this search and issue a new determination to the NRDC to confirm whether or not responsive material exists in the archives.

It Is Therefore Ordered That:

(1) The Appeal filed by the Natural Resources Defense Council on October 2, 1997 is hereby granted as set forth in paragraph (2) below.

(2) This matter is remanded to the Freedom of Information Officer of the Office of Public Affairs of the Albuquerque Operations Office for further action in accordance with the directions set forth in this Decision.

(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: October 31, 1997