Case No. VFA-0455, 27 DOE ¶ 80,174

December 3, 1998

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Douglas Farver

Date of Filing: October 20, 1998

Case Number: VFA-0455

This Decision and Order concerns an Appeal that was filed by Douglas Farver from a determination issued to him by the Department of Energy’s (DOE) Oak Ridge Operations Office (Oak Ridge). In this determination, Oak Ridge granted in part a request for information that Mr. Farver filed 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. However, Oak Ridge declined to process a portion of the request, finding that it did not “reasonably describe” the records sought, as is required under 10 C.F.R. § 1004.4(c)(1). In his appeal, Mr. Farver contests this finding, and asks that we order the production of any additional responsive documents.

I. Background

In his FOIA request, Mr. Farver sought access to nine specified categories of documents pertaining to the procurement, use and disposal of acetonitrile (also known as methyl cyanide) at the Y-12 plant and the East Tennessee Technology Park (ETTP). In response to this request, Oak Ridge issued a partial determination on February 2, 1998 and a final determination on September 14, 1998. In these determinations, Oak Ridge provided a number of documents responsive to items 1, 4, 5, 6 and 8 of the request, and stated that no documents responsive to item 9 (documents describing accident scenarios involving acetonitrile at the Y-12 plant) could be located. With regard to items 7(a) through 7(g), Oak Ridge stated that processing this portion of the request would require in excess of

several hundred hours of effort....Furthermore, the agency would not normally undertake this magnitude of

effort in the normal course of day to day operations at the Y-12 Plant. Therefore, because of the extraordinary amount of time, funds, and personnel involvement in such an undertaking, we consider the scope of your item 7 as currently written too broad and cumbersome to process under the FOIA at this time.

September 14, 1998 determination letter at 1.(1) Oak Ridge did not respond to items 2 and 3 of Mr. Farver’s request in either determination. In his appeal, Mr. Farver contends that Oak Ridge has not adequately justified its refusal to process item 7 of the request.(2)

II. Analysis

We have carefully reviewed the record in this matter, including all of the arguments raised in Mr. Farver’s appeal, and Oak Ridge’s responses to those arguments. For the reasons set forth below, we conclude that Oak Ridge has not adequately justified its finding that item 7 does not “reasonably describe” the records sought, and that the determination issued to Mr. Farver was inadequate. We will therefore remand this matter to Oak Ridge for the issuance of a new determination letter.

A. Adequacy of the Request

The FOIA requires that federal agencies generally release documents to the public upon request. Under the FOIA, such a request must “reasonably describe” the records sought. 5 U.S.C. § 552(a)(3)(A). This requirement is met if the request enables 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). The DOE may take into consideration problems of search which are associated with the files of a particular facility and determine that a request is not one for reasonably described documents as it pertains to that facility. Id. If the request does not “reasonably describe” the records sought, the agency response must specify the reasons for this finding and invite the requester to confer with knowledgeable personnel “in an attempt to restate the request or reduce the request to manageable proportions by reformulation or by agreeing on an orderly procedure for the production of the records.” 10 C.F.R. § 1004.4(c)(2). (3)

As previously stated, Oak Ridge determined that item 7 did not “reasonably describe” the records sought. In that item, Mr. Farver sought copies of all documents pertaining to the quantities and dates of use of acetonitrile in facilities associated with the Y-12 plant (7(a) through 7(g)) and facilities associated with the ETTP (7(h) through 7(l)). While Oak Ridge provided some justification for its finding that items 7(a) through 7(g) do not “reasonably describe” the records sought, it has provided no explanation for the determination letter’s apparent finding that items 7(h) through 7(l) are impermissibly broad. Indeed, there is nothing in the record to indicate that processing this portion of the request would be unduly burdensome, or would disrupt the normal operation of the ETTP or any other Oak Ridge operation in any meaningful way. Therefore, on remand, Oak Ridge should either explain why items 7(h) through 7(l) do not “reasonably describe” the requested material, or process these requests by conducting a new search and informing Mr. Farver of the results of that search in a new determination letter. In addition, Oak Ridge should also provide further information as to the extent of the burden that processing items 7(a) through 7(g) would produce. This information should include as accurate an estimate as possible of the amount of material that would have to be searched for responsive documents, and the number of employees who would be available to undertake such a task.

B. Adequacy of the Determination

After conducting a search for responsive documents under the FOIA, an agency must provide 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). This allows the requester to decide whether the agency’s response to its request was adequate and provides this Office with a record upon which to base its consideration of an administrative appeal.

As previously stated, Oak Ridge did not respond to items 2 and 3 of Mr. Farver’s request. In item 2, Mr. Farver requests copies of all documents detailing the use of acetonitrile at the Y-12 plant. In item 3, he seeks copies of all such documents concerning the ETTP. Without responses to these items, it is not possible for Mr. Farver to effectively challenge Oak Ridge’s handling of this portion of his request, nor does it provide us with a complete record upon which to consider his appeal. Therefore, Oak Ridge’s new determination letter should specifically address items 2 and 3 of Mr. Farver’s request. In this letter, Oak Ridge should describe the scope of the search for documents responsive to these items, and provide the results of that search.

C. Summary

For the reasons set forth above, we will remand this matter to Oak Ridge. On remand, Oak Ridge shall perform a new search for documents responsive to items 2, 3, and 7(h) through 7(l) of Mr. Farver’s request and shall issue a new determination letter informing him of the results of that search, unless it determines that these items do not “reasonably describe” the requested documents. In that case, the determination letter should fully set forth its reasons for that finding. Oak Ridge should also provide additional support for its finding that items 7(a) through 7(g) of Mr. Farver’s request are impermissibly broad.

It Is Therefore Ordered That:

(1) The Appeal filed by Douglas Farver is granted as set forth in paragraph (2) below, and is in all other respects denied.

(2) This matter is hereby remanded to the Freedom of Information Officer of the Oak Ridge Operations Office for further proceedings in accordance with the instructions set forth in this Decision and Order.

(3) This is a final order of the Department of Energy from which any aggrieved party may seek judicial review. 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 3, 1998

(1)The letter went on to state that unless Mr. Farver narrowed the scope of item 7, or gave a written statement indicating his willingness to pay expected search and copying costs, Oak Ridge could not process that portion of his request. In his appeal, Mr. Farver interprets this statement as a rejection of his request for a fee waiver, and argues that the rejection was improper. However, the volume of documents provided to Mr. Farver did not exceed the 100 page threshold for the assessment of fees, 10 C.F.R. § 1004.9(a)(6), and Oak Ridge has stated that it did not process item 7 of the request because it considered that item to be too broad and cumbersome. September 14 determination letter. Therefore, no fee waiver determination was necessary and none was in fact made. See memorandum of November 25, 1998 telephone conversation between Robert Palmer, OHA Staff Attorney, and Amy Rothrock, Oak Ridge FOIA Officer.

(2)In addition, Mr. Farver argues that Oak Ridge has not conducted an adequate search for responsive documents. However, because we are remanding this matter to Oak Ridge and additional documents may therefore be provided to Mr. Farver, we will not address this arguments at this time.

(3)Oak Ridge has informed us that it did in fact confer with Mr. Farver in an attempt to narrow the scope of his request. These efforts were unsuccessful. Oak Ridge Response to Farver appeal at 5.