Case No. VFA-0429, 27 DOE ¶ 80,154

August 14, 1998

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner:Gary A. Davis

Date of Filing: July 21, 1998

Case Number: VFA-0429

On July 21, 1998, the Office of Hearings and Appeals (OHA) received a Freedom of Information Act (FOIA) Appeal filed by Gary A. Davis. Davis is appealing a determination by the Department of Energy’s (DOE) Oak Ridge Operations Office (Oak Ridge). Oak Ridge issued a determination on June 25, 1998, in response to a request for information submitted in accordance with the provisions of the FOIA, 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004. The Appeal, if granted, would require Oak Ridge to conduct a further search for responsive materials.

I. Background

The request sought access to documents containing information about the following four items:

(1) The Anderson County [Tennessee] Landfill . . . and any of its operations;

(2) Any waste materials disposed of by DOE, its predecessors and its contractors in the Anderson County Landfill;

(3) Any waste materials transferred off the Oak Ridge Reservation by local or regional waste management companies or contractors, which may have been disposed of in the Anderson County Landfill; and

(4) The disposal of waste materials by American Nuclear Corporation in Anderson County, Tennessee.

On June 25, 1998, Oak Ridge issued a determination letter in which it claimed that it was unable to locate any documents responsive to the first item of Davis’ request. As for the other three requested items, Oak Ridge distinguished between hazardous and sanitary wastes. Oak Ridge alleged that since it has no way of determining which landfill its sanitary waste disposal contractors use, it could not locate any responsive documents involving sanitary wastes. Oak Ridge further claims that hundreds of thousands of hazardous waste manifests would have to be searched individually in order to determine whether hazardous wastes from Oak Ridge would have been disposed of in the Anderson County Landfill. (1) The determination letter further informed Davis that he could call or write Oak Ridge to clarify or narrow the scope of the search for hazardous waste manifests.

In his Appeal, Davis does not contest Oak Ridge’s determination that it could not locate any documents responsive to Item 1 of his request. However, Davis contests the adequacy of the search for documents which are responsive to the remaining three items. Specifically, he contends that:

1) Oak Ridge should have searched the procurement files for Oak Ridge’s waste contractors during the relevant time period, since it is not uncommon for contracts with disposal contractors to specify a disposal site;

2) It is unnecessary to search every hazardous waste manifest. Since there were state requirements that required preapproval before certain hazardous wastes, those records could be searched instead; and

3) Oak Ridge did not indicate the results of its search for documents responsive to Item 4.

II. Analysis

A. Adequacy of the Search

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., Butler, Vines and Babb, P.L.L.C., 25 DOE ¶ 80,152 (1995). 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).

We find that Oak Ridge’s response to Items 2 and 3 was inadequate. Oak Ridge claims that the search for responsive documents would involve hundreds of thousands of hazardous waste manifests, and would not likely result identifying responsive documents because most of DOE’s hazardous wastes were shipped out of state. Oak Ridge’s determination letter then suggests that Davis could contact Oak Ridge in order to narrow the scope of its request.

The DOE’s FOIA regulations state that “a request must enable the DOE to identify and locate the records sought by a process that is not unreasonably burdensome or disruptive of DOE operations.” 10 C.F.R. § 1004.4(c)(1). However, the search for responsive documents would not necessarily include the search of hundreds of thousands of documents as Oak Ridge asserts. Instead, we agree with Davis that Oak Ridge could have searched the contracts of all of its hazardous waste contractors during the period set forth in the request (1971 through 1982). Such a search would have satisfied DOE’s obligations under the FOIA without placing an undue burden upon Oak Ridge’s operations. Accordingly, we are remanding this portion of the Appeal to Oak Ridge. On remand, Oak Ridge should search the contracts of each hazardous waste contractor for the years 1971 through 1982 for the identity of specified and/or preapproved disposal sites.

B. Adequacy of the Determination

After conducting a search for responsive documents under the FOIA, the statute requires that the agency provide the requester with a written determination notifying the requester of the results of that search and, if applicable, of the agency’s intentions 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). In doing so, the determination letter allows the requester to decide whether the agency’s response to its request was adequate and proper and provides this office with a record upon which to base its consideration of an administrative appeal.

After reviewing the record, we find that the determination letter that Oak Ridge issued to Davis fails to respond to Item 4 of the request. Accordingly, Item 4 is to be remanded to Oak Ridge. On remand, Oak Ridge must conduct a thorough search for responsive documents and issue a new determination letter. The new determination letter should contain a thorough description of the scope of the search conducted in response to this item of the request.

It Is Therefore Ordered That:

(1) The Appeal filed by Gary A. Davis on July 21, 1998, case number VFA-0429, is hereby granted and remanded to the Oak Ridge Operations Office which shall promptly implement the instructions set forth above.

(2) 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 located, or in the District of Columbia.

George B. Breznay

Director

Office of Hearings and Appeals

Date: August 14, 1998

(1) Oak Ridge also implies that it is unlikely that hazardous waste from Oak Ridge would end up in a local disposal site.