The Rural Alliance for Military Accountability, Case No. VFA-0357, December 22, 1997

Case No. VFA-0357, 26 DOE ¶ 80,242

December 22, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: The Rural Alliance for Military Accountability

Date of Filing: November 28, 1997

Case Number: VFA-0357

On November 25, 1997, the Rural Alliance for Military Accountability (RAMA) submitted an Appeal from a determination issued to it on October 31, 1997 by the Rocky Flats Field Office (RF) of the Department of Energy (DOE). (1) That determination concerned a request for information submitted by RAMA pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004. If the present Appeal were granted, RF would be required to conduct a further search for responsive material.

I. Background

In a September 22, 1996 Freedom of Information Act request (Request), RAMA asked for copies of all documents pertaining to the transportation routes DOE and its contractors utilize to transport materials and wastes from the DOE's Rocky Flats facility in Colorado to the Los Alamos National Laboratory in New Mexico. RAMA specified that it sought, among other items, maps, records of decisions, National Environmental Policy Act (NEPA) documentation, risk analysis documentation, accident procedures, emergency preparedness training materials and all written policies pertaining to the transportation of materials or wastes.

On October 31, 1997, RF issued a partial determination letter (Determination Letter) responding to RAMA's Request. The Determination Letter listed a number of documents it released in their entirety to the Appellant. Included in these documents were copies of maps with approved hazardous material transportation routes for the State of Colorado. The Determination Letter stated that no copies of

any approved hazardous material transportation routes for the State of New Mexico were found but RAMA was informed that the New Mexico Highway Department may possess such information.

In its Appeal, RAMA argues that RF conducted an inadequate search for documents responsive to its Request. Specifically, RAMA asserts that the partial response provided by RF was "unresponsive and contradictory in the information provided." As evidence of the inadequacy of RF's response, RAMA asserts that it is inconceivable that a federal agency would not have a map of approved hazardous material routes for the State of New Mexico. (2)

II. Analysis

In responding to a request for information filed under the FOIA, it is well established that an agency must "conduct a search reasonably calculated to uncover all relevant documents." Truitt v. Department of State, 897 F.2d 540, 542 (D.C. Cir. 1990). "The 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 Truitt, 897 F.2d at 542. We have not hesitated to remand a case where it is evident that the search conducted was in fact inadequate. See, e.g., National Resources Defense Council, 26 DOE ¶ 80,229 (1997).

In reviewing the present Appeal, we contacted RF to ascertain the extent of the search that it performed for responsive documents. RF informed us that it conducted a search in the RF offices most likely to contain responsive documents. These offices included the offices of the various Assistant Managers for Government Operations, Environmental Compliance, Material Stabilization and Disposition, Program and Program Planning Integration and Performance Assessment. See Memorandum of telephone conversation between Mary Hammack, FOIA Officer, RF, and Richard Cronin, OHA Staff Attorney (December 10, 1997). Additionally, RF asked Kaiser-Hill Company, the main integrator contractor, to conduct a search. Kaiser-Hill Company determined that DynCorp, the contractor with responsibility for the shipment of hazardous materials and training of personnel, would most likely possess responsive documents. Kaiser-Hill subsequently requested that the offices of DynCorp be searched. In light of the above facts, we believe RF conducted a search of the DOE and contractor offices which would most likely contain responsive documents. The fact that RF did not possess a map of approved transportation routes in New Mexico does not convince us otherwise. The traffic manager for DynCorp informed us each state is responsible for determining the routes by which hazardous materials are shipped but that states need not actually select routes or print maps of such routes. He also informed us that to the best of his knowledge RF has never sought to obtain

a map of New Mexico State hazardous material routes or to determine whether the State of New Mexico had ever created a map or list of such routes. Further, he informed us that to transporting hazardous materials, RF would contract with a carrier and that the carrier is responsible for selecting an appropriate route. See Memorandum of telephone conversation between Mary Hammock, FOIA Officer, RF, Len Lenarcic, traffic manager, DynCorp, and Richard Cronin, OHA Staff Attorney (December 17, 1997). We were also informed that the DOE's Albuquerque Operations Office, which supervises the Waste Isolation Pilot Plant in Carlsbad, New Mexico, would be the DOE facility which would most likely possess a map or list of approved New Mexico hazardous material transportation routes, if such documents exist, and that RAMA's requested has been forwarded to that office. Id. Since we believe that RF conducted a search reasonably calculated to uncover responsive documents, we find that RF conducted an adequate search pursuant to the FOIA. Consequently, we must deny RAMA's Appeal.

It Is Therefore Ordered That:

(1) The Appeal filed on November 28, 1997 by the Rural Alliance for Military Accountability, Case No. VFA-0357, is hereby denied.

(2) 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: December 22, 1997

(1)RAMA's initial submission did not include a copy of the determination letter it was appealing and which is required to be by DOE's FOIA regulations. See 10 C.F.R. § 1004.8(b). We deemed RAMA's appeal as filed as of the date when we received a copy of the RF determination letter on November 28, 1997.

(2)In its Appeal, RAMA also complains about the length of time RF took to process its FOIA Request and about an incident involving a RF official. We can address neither of these complaints. Our jurisdiction is limited to appeals of actions whereby an Authorizing Official has denied a request for records in whole or in part or has responded that there are no documents responsive to a request or when a FOIA Officer has denied a request for a waiver of fees. See 10 C.F.R. § 1004.8(a).