F.A.C.T.S., Case No. VFA-0339, November 10, 1997

Case No. VFA-0339, 26 DOE ¶ 80,232

November 10, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeals

Name of Petitioner:F.A.C.T.S.

Dates of Filing: October 2, 1997

October 10, 1997

Case Numbers: VFA-0339

VFA-0343

On October 2 and 10, 1997, the Appellant, F.A.C.T.S. (For A Clean Tonawanda Site), filed Appeals from final determinations issued by the Office of the Executive Secretariat (ES) and the Oak Ridge Operations Office (OR) of the Department of Energy (DOE) on September 2 and September 9, 1997 respectively.(1) In their determinations, ES and OR partially granted a request for information that the Appellant 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. Additionally, OR denied the Appellant's request for a fee waiver.

The FOIA requires that a federal agency generally release documents to the public upon request. The FOIA, however, lists nine exemptions that set forth the types of information that a federal agency may withhold at its discretion. 5 U.S.C. § 552(b); 10 C.F.R. § 1004.10(b). The DOE regulations provide that the DOE should release to the public material exempt from mandatory disclosure under the FOIA if the DOE determines that federal law permits disclosure and it is in the public interest. 10 C.F.R. § 1004.1.

I. Background

In its request for information dated February 4, 1997 (Request), the Appellant sought records relating to five categories of information pertaining to the DOE's Formerly Utilized Sites Remedial Action Program (FUSRAP) and a FUSRAP site in Tonawanda, New York.(2) In this Request, the

Appellant additionally requested a waiver of fees based upon a favorable ruling on a prior request by a James Rauch. The Request was initially sent to OR, which processed the Request regarding one of the categories of requested information (Category 1). OR also forwarded the Request to ES so that it could issue a determination regarding the remaining four categories of requested information (Categories 2, 3, 4 and 5). In an interim determination dated April 2, 1997, ES provided the Appellant with documents responsive to three of the categories of requested information (Categories 3, 4 and 5). Subsequently, ES issued a final determination letter dated September 2, 1997 (ES Determination Letter), in which it identified documents responsive to Category 2 of the Appellant's request, namely, documents pertaining to "[t]he legal basis, both in general terms and in terms specific to the Tonawanda, NY FUSRAP Site, of the policy outlined in the second paragraph of the March 8, 1995 memorandum, James W. Wagoner II to L. Price, OR, Subject: Ownership of 11(e)(2) Byproduct Material."

The documents responsive to Category 2 of the request were identified as an informal note from an official at the DOE's Former Sites Restoration Division to DOE Headquarters' Office of Chief Counsel and "the responding legal advice." ES Determination Letter at 1. ES withheld all of these documents pursuant to Exemption 5 of the FOIA. In the ES Determination Letter, ES asserted the documents were subject to the attorney-client privilege since the note concerned a request to the Office of Chief Counsel regarding the DOE's interpretation of the March 8, 1995 memorandum referenced in the Appellant's Category 2 request. Thus, ES asserted that each document was protected from disclosure by Exemption 5.

OR also sent a letter dated February 6, 1997 to the attorney who was then representing the Appellant, Robert J. Rauch. In that letter, OR rejected the Appellant's request for a fee waiver. The February 6 letter stated that while James Rauch had been granted a fee waiver for material relating to the Tonawanda site in 1995, the current request had been made by a different requester and the materials requested were "broader in scope" than the material requested in 1995. Consequently, OR classified the requester as "commercial" and asked that the Appellant either affirm that he would pay costs associated with the processing or submit additional justification supporting his request for a fee waiver. The Appellant did not submit any additional information.

On September 9, 1997, OR issued a final determination regarding documents responsive to Category 1 of the Request (OR Determination Letter). Category 1 of the Request asked for documents relating to:

"[a] meeting requested by Niagara Landfill, Inc. and its affiliate, Browning-Ferris Gas Services, Inc., in a letter dated June 7, 1995, from Ralph L. Halpern, attorney, Jaeckle, Fleischmann & Mugel, to Lestor [sic] K. Price, Director, Technical Services Division, U.S. Department of Energy (DOE), Oak Ridge Operations (ORO), Subject: "Re: Radioactive Contamination at Seaway Landfill in Tonawanda, New York. . . ."

Request at 1-2. In the OR Determination Letter, OR released seven documents in their entirety to the Appellant. OR also provided the Appellant with an index of 38 documents which were responsive to Category 1 of the Request but were being withheld in their entirety pursuant to Exemption 5 of the FOIA. (3) OR asserted that the documents contained material which would be protected by the deliberative process, attorney-client and attorney-work product privileges. OR further asserted that DOE decision-making processes would be seriously harmed by the release of these documents. Additionally, the OR charged the Appellant $428.39 to process the Request.

II. The Appeals

In its Appeal of ES's determination (Case No. VFA-0339), the Appellant challenges the application of Exemption 5 to the documents identified in the ES Determination Letter. The Appellant argues that DOE should, in its discretion, release the documents notwithstanding their being subject to the attorney-client privilege given the significant public interest in the subject matter of the documents. In support of this argument, the Appellant claims that the Tonawanda Site is contaminated with 11(e)(2) Byproduct Material and that ownership of this material is relevant to who is responsible for the release of such material into the environment.(4) Consequently, release of information concerning the legal basis of the DOE's position regarding ownership of 11(e) Byproduct Material is necessary for informed public opinion in the environmental review process for the Tonawanda Site. Thus, according to the Appellant, release of the information in the documents would serve the public interest.

The Appellant also argues that the Category 1 documents withheld by the OR Determination Letter pursuant to Exemption 5 should also be released. The Appellant asserts that the index does not lists the originators and addressees of the withheld OR documents. Consequently, in light of the vague descriptions given in the index, some of the documents may not be intra- or inter-agency documents protected by the deliberative process privilege. Additionally, the Appellant requests that we order OR to provide it with an index which clearly indicates originators and addressees of the documents listed in the index. The Appellant further argues that, notwithstanding the possible applicability of Exemption 5, each of the documents should be discretionarily released. The Appellant asserts that these documents would reveal if any agreements were reached regarding indemnification of Niagara Landfill, Inc. (NLI) or Browning Ferris Gas Services, Inc. (BFG) for costs incurred in complying with New York state environmental regulations regarding the monitoring of radon and for lost revenues pertaining to the Seaway Landfill at Tonawanda, New York. The Appellant asserts that the amount of money at issue is greater than $20 million and would have a significant impact on the nature and extent of the FUSRAP cleanup proposed for the Tonawanda site. Consequently, according to the Appellant, release of the documents would be in the public interest since they are necessary for informed public participation in the environmental review process at the Tonawanda site.

The Appellant also asserts that the DOE conducted an inadequate search for documents responsive to Categories 1, 2 and 3 of the Request. With regard to the search for documents responsive to Category 1, the Appellant asserts that the June 7, 1995 letter referred to in Category 1 states that the author of the letter believed that his indemnification proposal should form the basis for further discussions and requested that DOE contact him for further discussions. The Appellant asserts that no documents have been identified by OR which relate to subsequent meetings and that consequently additional documents must exist pertaining to those meetings.

The Appellant asserts that the two documents which were released by ES pursuant to Category 2 of the Request indicate that it searched only for documents concerning the legal basis for DOE's position regarding ownership of 11(e)(2) Byproduct Material at the Tonawanda site alone. The Appellant asserts that its request was for information pertaining to the DOE's position regarding ownership of 11(e)(2) Byproduct Material at each of its FUSRAP sites, not just the Tonawanda site. Because the Appellant believes that 11(e)(2) Byproduct Material is an issue at all of the DOE's FUSRAP sites, it believes that ES's search was inadequate.

The next argument on appeal relates to Category 3 of the Request. In that category F.A.C.T.S. asks for documents "of the Atomic Energy Commission establishing the creation of the Formerly Utilized MED/AEC Sites Remedial Action Program (FUSRAP) in 1974." The Appellant notes that the only document it received responsive to this request was a document with four attached memoranda, none of which mentions FUSRAP by name. The Appellant points out that the document contains several comments such as "this appears to be the earliest document which can be tied to what FUSRAP is currently doing." However, the Appellant asserts that its request does not ask for the earliest documents which can be "tied" to FUSRAP, but rather documents which created or established the program in substantially the form it exists today. The Appellant argues that a reasonable interpretation of the Category 3 request would encompass, among other items, materials relating to the formal designation of the program, the authority pursuant to which it was created, its statement of purpose and its organizational structure and operating budget. Consequently, the Appellant believes the search OR conducted for Category 3 documents was inadequate.

Lastly, the Appellant challenges OR's denial of a fee waiver. The Appellant asserts that OR had granted it a fee waiver in earlier requests. The Appellant also asserts that in the present request, it stated that it was requesting a fee waiver for the same reasons outlined in a prior April 12, 1995 letter (1995 letter) to OR concerning a prior FOIA request. The Appellant asserts that the documents would not serve to further any commercial, trade or profit interest. Further, the Appellant argues that the fact that the subject of its present request may be broader than its earlier requests is irrelevant to the determination as to whether it should be granted a fee waiver. The Appellant also challenges its classification as "commercial" by OR for fee calculation purposes and asserts that the requested documents would further no commercial purpose.

III. Adequacy of OR's Determination

After conducting a search for responsive documents under the FOIA, the agency is required by statute to provide the requester with a written determination notifying the requester of the results of that search and, if applicable, of the agency's intention to withhold any of the responsive information under one or more of the nine statutory exemptions to the FOIA. 5 U.S.C. § 552(a)(6)(A)(i). The statute further requires that the agency provide the requester with an opportunity to appeal any adverse determination. Id.

The written determination serves to inform the requester of the results of the agency's search for responsive documents and of any information that the agency has withheld. In doing so, the determination letter allows the requester to decide if the agency's response was adequate and proper and provides this Office a record upon which to base its consideration of an administrative appeal. Research Information Services, Inc., 26 DOE ¶ 80,139 (1996) (RIS).

It therefore follows that the agency has an obligation to ensure that its determination letters : (1) adequately describe the results of searches; (2) clearly indicate which information was withheld, and (3) specify the exemption(s) under which information was withheld. Burlin McKinney, 25 DOE ¶ 80,205 at 80,767 (1996); RIS at 80,592. Generally, a description is adequate if each document is identified by a brief description of the subject matter it discusses and, if available, the date upon which the document was produced and its author and recipient. An index of documents need not, however, contain information that would compromise the privileged nature of the documents. Paul W. Fox, 25 DOE ¶ 80,150 (1995). A determination must also adequately justify the withholding of documents by explaining briefly how the claimed exemption applies to the document. Id. Without an adequately informative determination letter, the requester must speculate about the adequacy and appropriateness of the agency's determinations. RIS at 80,592.

The index of documents that OR provided does not meet these standards. The references to documents provided in the index do not provide any description of the authors or recipients of the document. Nor does the OR Determination Letter or index contain an explanation as to which specific privileges are being asserted with regard each of the withheld documents. Consequently, we will remand this matter to OR so that it can issue another, more detailed determination letter regarding the 38 withheld documents.(5) Armed with a more specific determination letter and index, the Appellant may be able to narrow the issues if it subsequently seeks to appeal the new determination.(6)

IV. Adequacy of Search

The FOIA requires that federal agencies generally release documents to the public upon request. 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., Eugene Maples, 23 DOE ¶ 80,106 (1993); Native Americans for a Clean Environment, 23 DOE ¶ 80,149 (1993). 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).

To examine the adequacy of the search which was conducted for documents responsive to Category 1 of the Request we contacted the FOIA Officer at OR. She informed us that OR conducted a search of the offices most likely to possess responsive documents: the Prime Contractor of the FUSRAP at OR, Bechtel National, Inc.; the OR FUSRAP program office; and the DOE Headquarters' FUSRAP office. See Memorandum of telephone conversation between Amy Rothrock, FOIA Officer, OR, and Richard Cronin, OHA Staff Attorney (October 17, 1997). Given the facts presented above, we believe that the search which was conducted for Category 1 documents was adequate. OR officials conducted a search of all of the offices in which it believed responsive documents might exist. Further, all responsive documents were either listed in the index provided to the Appellant or referred to another DOE Operations Office so that a final determination could be issued.

We contacted an official at ES to ascertain the extent of the search which was conducted for documents responsive to Category 2 and 3 of the Request. We were informed that ES determined the DOE FUSRAP office at DOE Headquarters would be the office most likely to possess responsive documents. See Memorandum of telephone conversation between Tonya Woods, ES, and Richard Cronin (October 16, 1997). We contacted an official at the DOE Headquarters' FUSRAP office to determine the extent of the search which had been made for documents pertaining to ownership of 11(e)(2) Byproduct Material (Category 2). That official informed us that to the best of his knowledge the only document which the DOE had ever created regarding ownership issues of 11(e)(2) Byproduct Material was the March 8 memorandum referenced in the Category 2 request. While he possessed a copy of the March 8 memorandum, he had no knowledge of any other 11(e)(2) Byproduct Material ownership document which ever existed regarding any FUSRAP site. See Memorandum of telephone conversation between W. Alexander Williams, Office of Eastern Area Programs, FUSRAP Team, and Richard Cronin, OHA Staff Attorney (October 16, 1997). Because the official had detailed knowledge regarding documents pertaining 11(e)(2) Byproduct Materials and concluded on the basis of his experience that no other documents existed, we find that the search for responsive documents for Category 2 of the Request was adequate.

With regard to Category 3, ES requested that the DOE Headquarters' FUSRAP office conduct a search for responsive documents. An official at that office informed us that all documents pertaining to the earliest origins of the program which would become FUSRAP had previously been compiled into one file and the Appellant was given copies of each of the responsive documents in the file. The Appellant's argument that the search was inadequate because other organizational documents, such as formal descriptions of FUSRAP, the authority pursuant to which FUSRAP was created, the purpose statement, the organizational structure and the operating budget, were not discovered is unavailing. The wording of the Appellant's Request, "[t]he document of the Atomic Energy Commission establishing the creation" of the FUSRAP, indicates to us that it only sought documents pertaining to the initial establishment of the FUSRAP program and not documents relating to the items mentioned in the Appellant's Appeal. The Appellant's argument seeks to broaden the scope of its Request by means of an Appeal and as such must fail. See Energy Research Foundation, 22 DOE ¶ 80,114 at 80,529-30 (1992). If the Appellant seeks documents relating to the items mentioned in its Appeal, it may make another FOIA request for such documents.

Given the extent of the search described above, we find that the searches conducted by OR and ES for the documents requested in Categories 1, 2 and 3 were adequate.

V. Fee Waiver

The FOIA generally requires that requesters pay fees for the processing of their requests. 5 U.S.C. § 552(a)(4)(A)(i); see also 10 C.F.R. § 1004.9(a). However, the Act provides:

Documents shall be furnished without any charge or at a charge reduced below the fees established under clause (ii) if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the

operations or activities of the government and is not primarily in the commercial interest of the requester.

5 U.S.C. § 552(a)(4)(A)(iii) (1988 ed.). The burden of satisfying this two prong test is on the requester. Larson v. Central Intelligence Agency, 843 F.2d 1481, 1483 (D.C. Cir. 1988) (per curiam) (Larson).

In the present Appeal, the Appellant argues that in its Request, it specifically sought a fee waiver for the same reasons enumerated in an April 12, 1995 letter from James Rauch, who the Appellant apparently claims was representing it. The Appellant asserts that because a fee waiver was granted to James Rauch in 1995, a fee waiver should have been granted for the present request. OR has asserted that the fee waiver granted in 1995 was granted to James Rauch as an individual and not as a representative of the Appellant. OR further asserts that it requested that Robert Rauch, the attorney representing the Appellant at the time of the present request, submit further information to justify the Appellant's fee waiver request but that Robert Rauch declined to do so.

We have reviewed James Rauch's April 12, 1995 letter. The justification for a fee waiver given in that letter recounts the individual qualifications of James Rauch and his motivation for obtaining the requested documents. In addition, James Rauch mentions that he is a member of two organizations, one of which is the Appellant. He further states that he and the two organizations have no commercial interest in the requested documents. It is apparent that James Rauch was making a fee waiver request on his own behalf and not as a representative of the Appellant. Consequently, OR properly requested from the Appellant a justification for its present fee waiver request. Because the Appellant failed to provide any justification other than James Rauch's 1995 letter, OR properly denied the Appellant's fee waiver request.(7)

With regard to OR's classification of the Appellant as a "commercial" requester, we note that a requester may be classified as "commercial" if the records requested "are requested for commercial use." 5 U.S.C. § 552(a)(4)(A)(ii)(I); see also 10 C.F.R.§ 1004.9(b)(1). The classification of a requester as "commercial" thus depends on how the requested documents are to be used. In this Appeal, the Appellant has offered a detailed narrative as to why it seeks the requested documents. Because OR did not have the benefit of the Appellant's explanation as to why it sought the documents, we will remand this matter to OR so that it may reconsider its classification of the Appellant for fee calculation purposes.

In summary, because OR's determination letter was inadequate and further in order that we may give the Appellant a chance to be reclassified for fee calculation purposes, we will remand this matter to OR for another determination. Consequently, we will grant the Appellant's Appeal (Case No. VFA- 0343) in part. With regard to the Appellant's Appeal of ES's determination (Case No. VFA-0339), because we found that ES had conducted an adequate search for documents responsive to Categories 2 and 3 and because OR will issue another determination for the documents ES withheld, we will deny the Appellant's Appeal.

It Is Therefore Ordered That:

(1) The Appeal filed by F.A.C.T.S., on October 2, 1997, Case No. VFA-0339, is hereby denied.

(2) The Appeal filed by F.A.C.T.S. on October 10, 1997, Case No. VFA-0343 is hereby granted as set forth in Paragraph (3), and is denied in all other respects.

(3) This matter is remanded to the Department of Energy's Oak Ridge Operations Office for further consideration in accordance with the instructions contained in the foregoing decision.

(4) This is a final Order of the Department of Energy of 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 either in the district where 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 10, 1997

(1)The Office of Hearings and Appeals assigned Case No. VFA-0339 to the Appellant's Appeal of ES's determination and Case No. VFA-0343 to its Appeal of OR's determination.

(2)The Atomic Energy Commission (AEC) instituted a program which would eventually become FUSRAP in 1974 to study former Manhattan Engineering District (MED) and AEC sites. Most of these sites had been used in the early period of the domestic atomic energy program and had been initially cleaned up under the environmental standards in effect during that period. FUSRAP seeks to determine which sites need additional cleanup and effect further clean up of those sites.

(3)In addition, OR referred two other responsive documents to the Savannah River Operations Office so that it could issue a determination to the Appellant regarding those documents.

(4)11(e)(2) Byproduct Material is byproduct material produced from the extraction of uranium or thorium ores.

(5)If OR believes that the identity of the individuals named in the documents is privileged information, it may choose, in lieu of naming the authors and recipients, to include in its index general information terms, such as "a DOE official," which describe the authors and recipients. However, at this time we do not rule on the issue as to whether such names may be properly withheld under these circumstances pursuant to Exemption 5 of the FOIA.

(6)Because of the inadequate description of the documents provided to the Appellant, we are unwilling at this time to decide on the appropriateness of the application of Exemption 5 to the documents. Moreover, it is unclear from the OR Determination Letter if OR considered a discretionary release of the withheld documents notwithstanding its preliminary determination that Exemption 5 was applicable to the documents. Consequently, on remand OR should make a specific finding as to whether a discretionary release of the documents, Exemption 5 notwithstanding, is appropriate. See 10 C.F.R. § 1004.1.

We also note that with regard to the documents that ES withheld, the description of the documents withheld suffers from the same defects present in the OR Determination Letter. However, we will not require ES to issue another determination letter because all of the documents withheld by ES are included in the documents withheld by OR.

(7) Because we find that the 1995 letter failed to provide sufficient fee waiver information in support of the Appellant's fee waiver request, we need not decide on the Appellant's other arguments regarding OR's failure to grant it a fee waiver. However, we note that OR has informed us that it would reconsider the Appellant's fee waiver request upon the Appellant's submission of additional information.