Case No. VFA-0346, 26 DOE ¶ 80,234

November 19, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

APPEAL

Name of Petitioner: Los Alamos Study Group

Date of Filing: October 21, 1997

Case Number: VFA-0346

On October 21, 1997, the Los Alamos Study Group (the Study Group) filed an Appeal with the Office of Hearings and Appeals (OHA) of the Department of Energy (DOE). The Study Group appeals from a determination issued by the Albuquerque Operations Office (Albuquerque) on October 7, 1997, in response to a request for information filed by the Study Group under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004. In this Appeal, the Study Group has requested that OHA direct Albuquerque to conduct an additional search for responsive records and prepare an index of responsive, classified documents.

BACKGROUND

On June 2, 1997, the Study Group submitted a FOIA request seeking unclassified documents relating to projects that it claims have been planned or conducted at the Los Alamos Neutron Science Center (LANSCE), the Dual-Axis Radiographic Hydrodynamic Testing (DARHT) facility, the Pulsed-High-Energy Radiographic Machine Emitting X-Ray (PHRMEX) facility, the Flash X-Ray (FXR) facility, and a fifth named facility. The Study Group also indicated that "[f]or classified documents, we request a listing of document titles."

On October 7, 1997, Albuquerque issued a determination letter in response to the Study Group's FOIA request. This letter stated that:

The Los Alamos National Laboratory, at the request of the Los Alamos Area Office, searched for responsive unclassified records to your request and no records were located. There is no listing of classified document titles.

On October 21, 1997, the Study Group appealed this determination on the grounds that Albuquerque failed to conduct a search reasonably calculated to uncover the requested documents. In this Appeal, the Study Group stated that it had obtained three unclassified documents from another governmental source that Albuquerque would have uncovered if it had done a reasonable search. The Study Group has also requested that OHA order Albuquerque to prepare a "Vaughn-type" index of withheld documents.

ANALYSIS

As detailed below, we are remanding this matter to Albuquerque because the determination letter issued in response to the Study Group's FOIA request was based upon (1) a misunderstanding of the scope of the Study Group's request for classified documents, and (2) the incorrect assumption that the five facilities named in the Study Group's FOIA request were located at the Los Alamos National Laboratory (LANL). We nevertheless find that the staff of the DOE Los Alamos Area Office and LANL performed an adequate search for responsive, unclassified documents.

The Study Group's Request for a List of Titles of Classified Documents

In its FOIA request, the Study Group had stated that "[f]or classified documents, we request a listing of document titles." This language is unclear. It could be interpreted to mean that the Study Group was seeking an existing document containing a list of titles of classified documents, or that the Study Group was requesting that Albuquerque search for responsive classified documents, and then prepare an index of the titles of classified documents that were being withheld.

Because of this ambiguity, we contacted counsel for the Study Group to ascertain the intended scope of this portion of the FOIA request. Counsel informed us that the Study Group had intended that Albuquerque search for an existing document containing a list of titles of classified documents. Counsel further stated that if such a list were not located, the Study Group had intended that Albuquerque search for all responsive classified documents, and prepare a "Vaughn" index of the classified documents that were being withheld. See Memorandum of Telephone Conversation between Ruth Prokop and Linda Lazarus, OHA Staff Attorney (October 29, 1997).

We then contacted Albuquerque's Assistant Chief Counsel for Legal Affairs to ask how Albuquerque had construed this portion of the Study Group's FOIA request. Counsel stated that Albuquerque had understood this language to mean that the Study Group was seeking a document that contained a list of classified document titles. Counsel also stated that a search had been conducted for this document, and that no such document had been discovered. See Memorandum of Telephone Conversation between Ronald B. O'Dowd and Linda Lazarus (October 27, 1997).

Based on this information, we find that there had been a misunderstanding between Albuquerque and the Study Group concerning the scope of the FOIA request for classified documents.(1) For this reason, we will remand this matter to permit a search for classified documents to be conducted. We further instruct Albuquerque that, to the extent possible, it must provide the Study Group with an index of the classified documents being withheld after the search for responsive classified documents has been completed.(2)

The Adequacy of the Search

We have held that a FOIA request deserves a thorough and conscientious search for responsive documents. When we find that a search was inadequate, we have consistently remanded the case and ordered a further search for responsive documents. E.g., Eugene Maples, 23 DOE ¶ 80,106 (1993); Marlene R. Flor, 23 DOE ¶ 80,130 (1993); Native Americans for a Clean Environment, 23 DOE ¶ 80,149 (1993). However, the FOIA requires that a search be reasonable, not exhaustive: "[t]he standard of reasonableness that we apply to the agency search procedures does not require absolute exhaustion of 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).

The Search Was Limited to the DOE Los Alamos Area Office and LANL

In reviewing the Appeal, we contacted Albuquerque to discuss the search conducted in response to the Study Group's FOIA request. We were informed that the FOIA staff at Albuquerque had assumed that the five facilities named in the Study Group's FOIA request were located at LANL. Based on this assumption, the FOIA staff at Albuquerque had requested that only the DOE Los Alamos Area Office and LANL search for records that were responsive to the Study Group's FOIA request.(3) See Memorandum of Telephone Conversation between Linda Lazarus and Elva Barfield (November 14, 1997).

However, in reviewing this Appeal, we discovered that two of the five facilities named in the Study Group's FOIA request are not located at LANL. The Flash X-Ray (FXR) facility is at Lawrence Livermore National Laboratory, and we are unable to ascertain whether the fifth named facility even exists. We also learned that there is a possibility that responsive documents may be located at DOE Headquarters. See Memorandum of Telephone Conversation between William Schwartz, Staff Attorney, OHA, and Joyce Laeser, Area Counsel for the DOE Los Alamos Area Office (November 12, 1997).

For this reason, we will remand this matter to Albuquerque to permit the FOIA staff to request that the staff at the Lawrence Livermore National Laboratory and DOE Headquarters search for documents responsive to the Study Group's FOIA request. On remand, the Albuquerque FOIA staff should attempt to determine whether the fifth named facility listed in the Study Group's FOIA request exists, and whether it is under the control of DOE. If appropriate, the Albuquerque FOIA staff should request that the staff at this facility search for responsive records.

The Searches Actually Conducted were Adequate

The searches conducted for unclassified documents by the staff of the DOE Los Alamos Area Office and LANL were adequate. The FOIA staff at Albuquerque forwarded the Study Group's FOIA request to Perrie T. Wolford, the FOIA Coordinator at the DOE Los Alamos Area Office. Ms. Wolford concluded that the DOE Los Alamos Area Office would not have responsive records because it does not maintain records of programs being conducted at LANL. Ms. Wolford determined that responsive records, if they exist, would be at LANL. Accordingly, Ms. Wolford forwarded the FOIA request to the Information Practices Office at LANL, and requested that a search be conducted for government-owned records responsive to the request. See Memorandum of Telephone Conversation between Linda Lazarus and Perrie Wolford (November 10, 1997).

After LANL received this request, a LANL official convened a meeting attended by representatives of the three departments that were most likely to have records responsive to the Study Group's FOIA request. After this meeting, these departments were searched for unclassified documents responsive to the Study Group's FOIA request, but no such documents were found. See Memorandum of Telephone Conversation between Linda Lazarus and Chris Chandler, Laboratory Counsel at LANL (November 14, 1997). Based on these statements, we are convinced that the staff at the DOE Los Alamos Area Office and LANL followed procedures that were reasonably calculated to uncover unclassified documents responsive to the Study Group's FOIA request.

In its Appeal, the Study Group argued that Albuquerque could not have performed an adequate search for the requested records because the Study Group had obtained three unclassified documents from another governmental source that would have been uncovered by Albuquerque if a reasonable search had been done. We asked counsel for the DOE Los Alamos Area Office to respond to the Study Group's claim. Counsel stated that she was familiar with the documents at issue, and that these documents were not responsive to the Study Group's FOIA request. See Memorandum of Telephone Conversation between William Schwartz, Staff Attorney, OHA, and Lisa Cummings, Area Counsel for the DOE Los Alamos Area Office (November 12, 1997). As these documents are not responsive to the Study Group's FOIA request, the existence of these documents does not support the Study Group's claim that the searches performed by the staffs of the DOE Los Alamos Area Office and LANL were inadequate. We therefore are not convinced by the Study Group's argument.

It Is Therefore Ordered That:

(1) The Appeal filed by the Los Alamos Study Group on October 21, 1997, is hereby granted as set forth in Paragraph (2) below, and is in all other respects denied.

(2) This matter is remanded to Albuquerque with instructions to (1) request that personnel at the Los Alamos National Laboratory conduct a search for classified documents responsive to the Study Group's FOIA request; (2) request that personnel at the Lawrence Livermore National Laboratory and DOE Headquarters conduct a search for classified and unclassified documents responsive to the Study Group's FOIA request; (3) determine whether the fifth facility named in the Study Group's FOIA request exists and is under the control of DOE, and, if appropriate, request that personnel at this facility conduct a search for records responsive to the Study Group's FOIA request; and (4) issue a new determination that reflects the results of the above-described searches and, if possible, provides an index that contains a general description of all withheld documents and the reason that these documents have been withheld.

(3) 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 in the district in which the requester resides or has a principal place of busi ness, 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 19, 1997

(1)We find that Albuquerque's construction of this portion of the Study Group's FOIA request was reasonable, and that it was not responsible for this misunderstanding.

(2)Although case law requires that an agency prepare a Vaughn index only during the judicial review of a FOIA matter, OHA has required that determinations issued by DOE contain a general description of withheld material, and a statement of the reason for withholding each document. See, e.g., Rockwell International, 21 DOE ¶ 80,105 at 80,527 (1991); Natural Resources Defense Council, 20 DOE ¶ 80,145 at 80,627 (1990).

(3)LANL is operated by a government contractor, the University of California. The DOE Los Alamos Area Office is the DOE Office that is most closely connected with the LANL. The DOE FOIA regulations provide that "[w]hen a contract with DOE provides that any records acquired or generated by the contractor in its performance of the contract shall be the property of the Government, DOE will make available to the public such records that are in the possession of the Government or the contractor, unless the records are exempt from public disclosure under 5 U.S.C. § 552(b)." 10 C.F.R. §1004.3(e)(1).