Case No. VFA-0373, 27 DOE ¶ 80,113

February 26, 1998

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: INEEL Research Bureau

Date of Filing: February 5, 1998

Case Number: VFA-0373

On February 5, 1998, the INEEL Research Bureau (IRB) filed an Appeal from a determination issued on January 26, 1998, by the Idaho Operations Office of the Department of Energy (DOE/ID). The determination responded to a request for information 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. IRB challenges the adequacy of DOE/ID’s search for documents responsive to its request.

I. Background

On January 13, 1998, IRB requested from DOE/ID a “declassified index of classified, confidential, secret, or otherwise restricted documents under the control of [DOE/ID] or its contractors.” Letter from Chuck Broscious, Coordinator, IRB, to Information Access Officer, DOE/ID (January 13, 1998). On January 28, 1998, DOE/ID issued a determination to IRB, in which it stated that there “is no such index responsive to your request.” IRB filed the present Appeal “based on DOE’s inadequate search, and that the denial is contrary to the standard of law.”

II. Analysis

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).

In support of its Appeal, IRB submitted a letter from John E. Till, Ph.D., President of Radiological Assessments Corporation, whose “experience with DOE’s archive system,” according to IRB, “is unparalleled.” Appeal at 2. In this letter, Dr. Till states, “Unless I am mistaken, all classified documents must be accounted for through an inventory system, and therefore a database must likely already exist.” Letter from John E. Till to Chuck Broscious (December 31, 1997). IRB also notes that in 1988 it received an index of documents from DOE/ID entitled “EG&G Internal Reports Index,” and speculated that this index was created by querying a database that tracked all documents under the control of DOE/ID. Electronic Mail from Chuck Broscious to Steven Goering, OHA Staff Attorney (February 13, 1998).

Responding to IRB’s Appeal, DOE/ID stated that it has

not had document accountability, with its associated index, since June 1992[,] and has never had accountability for all of its classified documents, such as those classified confidential. . . .

DOE-ID's search was adequate, because it is aware of the history associated with accountability systems for classified documents at DOE-ID, and it approached the personnel who are responsible for classified matter protection and control, who have verified that the requested lists do not exist.

Electronic mail from Carl Robertson, Freedom of Information Officer, DOE-ID, to Steven Goering (February 11, 1998). We further queried DOE/ID as to how it would go about finding a particular classified document if it needed to. Electronic mail from Steven Goering to Carl Robertson (February 11, 1998). DOE/ID responded, “When we have been requested to find documents in the last several years, we have had to do a safe by safe or custodian by custodian search. This has led us to argue for a return to accountability several times, but we have never been successful in doing so.” Untitled statement from Carl Robertson to Steven Goering (February 18, 1998). Based on the above information, we are satisfied that DOE/ID took reasonable steps to verify that a current index of all classified documents under the control of DOE/ID does not exist.

However, DOE/ID acknowledges that indices had been maintained in the past for the holdings of the INEEL Technical Library and for documents in the possession of DOE/ID that were classified secret. DOE/ID states that because these indices have not been kept up to date, “any indices that we can produce will not reflect the classified document holdings in the possession of DOE-ID or its contractors. We think it would be counterproductive to give out an inaccurate or misleading list.” Id. Nonetheless, because IRB’s request was not limited to a current index, we believe these indices are responsive to IRB’s request. We therefore will remand this matter to DOE/ID, which should release to IRB these indices and any other similar indices that would be responsive to IRB’s request, or explain in detail its reasons for withholding responsive documents with reference to one or more FOIA exemptions. That these indices may not accurately reflect the current classified holdings of DOE/ID cannot be the basis for withholding these documents in response to a FOIA request.

We are aware that the request submitted by IRB is subject to more than one reasonable interpretation. To the extent that there is ambiguity as to which documents are being sought by IRB, we encourage DOE/ID and IRB to communicate and work together to resolve any such ambiguity. This type of cooperation assists the agency in fulfilling the intent of the FOIA to make agency records accessible to the public, and it increases administrative efficiency in handling these requests. See 10 C.F.R. § 1004.4(c)(2); see also Douglas L. Parker, 20 DOE ¶ 80,107 (1989); Hartford Courant, 15 DOE ¶ 80,133 (1987).

It Is Therefore Ordered That:

(1) The Freedom of Information Act Appeal filed by INEEL Research Bureau, Case Number VFA-0373, is hereby granted as specified in Paragraph (2) below, and is denied in all other respects.

(2) This matter is hereby remanded to the DOE’s Idaho 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 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: February 26, 1998