Tammi D. Mourfield Selvidge, et al., Case No. VFA-0449, November 12,1998

Case No. VFA-0449, 27 DOE ¶ 80,170

November 12, 1998

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Tammi D. Mourfield Selvidge, et al.

Date of Filing: October 13, 1998

Case Number: VFA-0449

On October 13, 1998, Tammi D. Mourfield Selvidge, Charles Selvidge and Sam Selvidge filed an appeal from a determination that the Department of Energy’s Oak Ridge Operations Office (ORO) issued on September 1, 1998. The determination responded to a request for information the Selvidges filed under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the Department of Energy (DOE) in 10 C.F.R. Part 1004. The appellants challenge the adequacy of ORO’s search, ORO’s delay in responding to their request, ORO’s failure to declassify documents, and a number of procedural matters.

I. Background

On September 22, 1997, the appellants requested from the DOE all documents concerning five categories of information, and requested that the responsive documents be declassified, if necessary, before their release. Those five categories are:

DOE’s failure ... to decontaminate, decommission or deactivate the Molten Salt Reactor (MSRE) at Oak Ridge National Laboratory ... including documentation on all explosions, nuclear criticalities, radiation and chemical leaks [and] safety deficiencies ... at the facility, as well as all contractual documents and DOE orders or other instructions relating to the contractor’s duties with respect to the [MSRE].

The entire history of the [MSRE] Building complex and environs, including toxic and hazardous substances used prior to the [MSRE] ...

Medical records of all DOE, contractor and subcontractor employees who ever worked in the [MSRE] Building ...

The identity and effects of the nearly 100 “classified” substances at Oak Ridge.

The entire contents of the Records Holding Task Group in Oak Ridge, Tennessee.

ORO issued a partial response to this request on October 21, 1997. In that response ORO informed the Selvidges that it was providing some documents responsive to Items 1 and 2 of their request, but that it was continuing to search for additional responsive documents. With respect to Item 3, ORO notified the requesters that it was still identifying the workers at the MSRE facility, and after they were all identified a search for their medical records would begin. ORO stated that it found no documents responsive to Item 4 of the request. Finally, it explained that the nature and scope of the request’s Item 5 were so broad that it could not respond without additional assistance from the requesters, estimating that it would take 80 person-years to declassify all the information that responded to the request as submitted. Instead, it proposed to provide the requesters with a list of the contents of the responsive database as a finding aid, from which the requesters could then select documents that they would like to view.

On September 1, 1998, ORO again responded to the requesters, providing a copy of the list of the contents of the database that it found to be responsive to Item 5 of the request. The listing, entitled “1998-RHA-241 RHTG System Master Report,” itemizes the records held by the Records Holding Task Group at Oak Ridge. Certain information was deleted from the copy of the listing that ORO provided to the requesters. However, an index accompanied the listing, in which ORO detailed the reasons for withholding the information from the requesters. The reasons fell into two categories: either the information was deleted pursuant to Exemptions 1 and 3 of the FOIA, or an entire page was withheld because the releasability of information contained on that page was “being coordinated with external agencies and other Department of Energy offices. As soon as those coordinated reviews are completed, a final version of the Report will be issued and you will be provided updates.” September 1, 1998 ORO Response.

On October 13, 1998, the Selvidges filed their appeal to the September 1 determination. In their appeal they challenge ORO’s failure to conduct an adequate search within reasonable time limits, the length of time it has taken ORO to respond to their initial request for information, ORO’s failure to declassify and release documents responsive to their request, and the quality of the “Vaughn” index that ORO provided in its response. (1) Each of these bases for appeal will be addressed below.

II. Analysis

A. Delay

The Selvidges argue, inter alia, that ORO has failed to respond fully to their request despite the passage of more than one year. This Office has no jurisdiction to hear such an allegation. Our jurisdiction, which arises from the DOE regulations at 10 C.F.R. § 1004.8, requires the issuance of a determination letter by a DOE official, in which the DOE has taken some action adverse to the requester. Although ORO has provided some documents responsive to the first and second categories of this request, it has consistently stated that those responses are partial responses, and that it intends to provide further response to those portions of the request, as well as an initial response to the third category of the request. Consequently, ORO has not completed its determination with respect to the first, second, and third categories of the request. This Office cannot review ORO’s partial responses because they do not constitute complete determinations. Nevertheless, the Selvidges are correct in that ORO has failed to complete its determination within the time limits set by statute and regulation. Under those circumstances, the FOIA explicitly provides that requesters may seek relief in the federal district courts. 5 U.S.C. § 552(a)(6)(C). We note, however, that the federal courts have recognized that federal agencies frequently are unable to meet the statutory processing deadlines due to large backlogs of pending cases and inadequate resources. See, e.g., Open America v. Watergate Special Prosecution Force, 547 F.2d 605 (D.C. Cir. 1976).

By contrast, ORO informed the requesters in its October 21, 1997 letter that it had no documents responsive to the fourth category of information sought in their request. That determination is ripe for review and will be addressed below. With respect to the fifth category of the request, ORO’s determination to withhold information from a document is subject to review by this Office and is addressed below. However, its failure to produce additional documents responsive to the fifth category is not now subject to our review. Because ORO has indicated its willingness to continue its search with the cooperation of the requesters, we conclude that it has not issued a complete determination concerning this portion of the request. Only that portion of its partial response to the fifth category of the request in which ORO withheld information constitutes a determination that we can review.

B. “No Documents” Response

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).

After receiving this appeal, we contacted ORO to find out about the search it conducted in response to the Selvidges’ request for “[t]he identity and effects of the nearly 100 ?classified’ substances at Oak Ridge.” Amy Rothrock, the FOIA Officer for ORO, explained the background for this fourth category of the request and the manner in which she searched for responsive documents. According to the FOIA Officer, the topic arose in a public meeting at which a Tennessee state employee informed the audience that the state had investigated the presence of some 100 substances at Oak Ridge, of which 20 were classified. She then determined that two offices at Oak Ridge might possibly have a list of the 100 substances, and contacted each one. At the Office of the Assistant Manager for Environment, Safety and Quality, she spoke with the project coordinator of the State of Tennessee Health Studies for Dose Reconstruction. She also questioned the Oak Ridge Office of Declassification, to learn whether it had any record of a document that contain a list of the 20 allegedly classified substances. Neither office informed the FOIA Officer that it possessed any responsive documents.

Based on our review of the details of ORO’s search as set forth above, particularly in light of the fact that the source of the underlying statement was not associated with the DOE, we find that ORO took steps reasonably calculated to uncover the documents the Selvidges sought. ORO personnel consulted presumably reliable sources in ORO offices that would likely possess the information sought, were any to exist. There is no information of which we are aware that would point to other locations at ORO where additional responsive documents might exist, and the FOIA clearly does not require ORO to conduct an exhaustive search through all of its document holdings to make certain that it has no other documents responsive to the Selvidges’ request. We therefore find that ORO’s search concerning the fourth category of the request was adequate to meet the requirements of the FOIA. In this respect, the present Appeal will be denied.

C. Partial Response Concerning the RHTG Records

In its October 21, 1997 determination, ORO responded to the fifth category of the Selvidges’ request for documents by stating that the scope of the request was so broad that it would require a declassification review that would take an estimated 80 person-years to complete. Instead it proposed to provide the requesters with printout of the contents of the Records Holding Task Group (RHTG) database. When review of that printout was complete, the requesters would be provided with a copy, from which they could select individual documents to be declassified and released, if possible. On September 1, 1998, ORO provided a copy of that printout, from which subject-identifying information had been deleted from some records listed. ORO informed the requesters that the information was withheld pursuant to Exemptions 1 and 3 of the FOIA and provided an explanation of each withholding in the form of an index, which ORO identified as a “Vaughn” index.

We have reviewed the manner in which ORO processed the fifth category of this request and find that it was appropriate. After performing a preliminary search, ORO determined that retrieving and reviewing all responsive documents would be an immense task. To provide better service and to avoid unnecessary delay and expense, it released a document that identified the universe of responsive documents and described them. ORO did not consider this a full response to the request. Rather, it identified the listing as a “finding aid,” and instructed the requesters to select documents from that list that they wished to obtain. To the extent that ORO has not fully responded to this portion of the request, it has failed to respond within the statutory time limits, and the requesters’ recourse is in the federal courts, as discussed above.

The listing ORO provided, however, was in a redacted form. Information contained in that document was withheld under Exemptions 1 and 3 of the FOIA. Despite the contentions raised in the appeal, ORO followed the appropriate procedures for handling a responsive document that had been identified as containing classified information. It referred the document to the Office of Declassification (OD) for a classification review, to determine whether the information claimed as classified could be declassified under current classification guidance. OD performed the required review and determined that those portions of the document continued to be considered classified. On that basis, those portions were withheld from the requesters under Exemptions 1 and 3, and the DOE official responsible for those withholdings was named in ORO’s determination letter. See 10 C.F.R. § 1004.6. That determination is ripe for review, and pursuant to the regulations governing appeals of denials of requests for classified information, we have referred this portion of the appeal to the Director of Security Affairs for appellate review. (2) See 10 C.F.R. § 1004.8(f). When that office completes its review, we will issue a final agency determination on the withholdings under these Exemptions.

Finally, the Selvidges assert that ORO provided a Vaughn index that is “facially inadequate, uninformative and misleading.” A Vaughn index is recognized in the context of FOIA as an index identifying each responsive document, the exemption under which it is being withheld and an explanation why that exemption is applicable, or in the alternative a similar document describing each withholding. See Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974). On previous occasions, we have stated that, although such an index may be required when an agency is in litigation with a FOIA requester, this degree of specificity is not required at the administrative stages of a FOIA request. See, e.g., Missouri River Energy Services, 27 DOE ¶ 80,___, Case No. VFA-0444 (October 9, 1998); Rockwell International, 21 DOE ¶ 80,105 at 80,527 (1991). At the administrative levels, agency determinations to deny release of documents need only provide a general description of the withheld material, and a statement of the reason for withholding each document. ORO’s index, which explains the basis for each withholding from the database printout, clearly meets this standard. The index permits the appellants to formulate the basis for their appeal, and permits the appellate authority to understand the DOE’s assertion of exemption. Therefore, we reject the Selvidges’ request for a more complete Vaughn index. (3)

It Is Therefore Ordered That:

(1) The Freedom of Information Act Appeal filed by Tammi D. Mourfield Selvidge, et al., Case Number VFA-0449, is hereby denied as set forth in paragraphs (2) and (3) below, and dismissed in all other respects.

(2) The portion of the appeal described in paragraph (1) above that concerns the adequacy of the search conducted by the DOE’s Oak Ridge Operations Office for documents that reveal the identity and effects of the nearly 100 ?classified’ substances at Oak Ridge is hereby denied.

(3) The portion of the appeal described in paragraph (1) above that concerns the adequacy of the index describing the withheld portions of the finding aid provided in partial response to

the request for the contents of the Records Holding Task Group at Oak Ridge is hereby denied.

(4) 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: November 12,1998

(1) In addition, they assert that a conflict of interest exists that has tainted the ability of the ORO FOIA Officer to perform her function diligently, and request that this Office have no ex parte communications with ORO personnel during our handling of this appeal. Although this Office has no authority to consider claims of conflict of interest, we have considered whether the ORO FOIA Officer’s determinations to date are in compliance with the FOIA, and have determined that they are, as set forth in this Decision. With respect to ex parte communications, there are no statutory or regulatory provisions governing this proceeding that prohibit such communications. Moreover, such a prohibition has no bearing in an administrative review process, such as this one, that is not of a quasi-judicial nature. Compare 10 C.F.R. §§ 708.9(c), 710.26(a) (prohibiting ex parte discussions in whistleblower and personnel security proceedings, respectively).

(2) Appellate review of the withholding of information from the RHTG database printout under Exemptions 1 and 3 has been assigned Case Number VFA-0451.

(3) We note that the index also indicates that certain pages of the printout will be provided after ORO receives advice it has sought from other agencies or other DOE offices. No information has yet been withheld under these conditions. The appellants may await further communication from ORO and appeal any information that might be withheld upon notice of such withholding, or may seek recourse at the present time in the Federal courts.