Case No. VFA-0532, 27 DOE ¶ 80,242

November 24, 1999

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner:STAND, Inc.

Date of Filing: October 13, 1999

Case Number: VFA-0532

On October 13, 1999, the Office of Hearings and Appeals (OHA) received a Freedom of Information Act (FOIA) Appeal filed by STAND, Inc. STAND is appealing a determination by the Department of Energy’s (DOE) Albuquerque Operations Office (Albuquerque). Albuquerque issued a determination on September 21, 1999, 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 DOE to conduct a further search for responsive materials.

On May 28, 1999, STAND, a community activist organization whose name stands for Serious Texans Against Nuclear Dumping, submitted a three part request for information to Albuquerque. On September 21, 1999, Albuquerque issued a determination letter indicating that its search had not identified any documents that are responsive to either of the first two portions of STAND's request. In its Appeal, STAND is only contesting the adequacy of Albuquerque’s search for documents responsive to the first portion of its request. The first portion of STAND's request was for "A copy of all Unusual Occurrence Reports for the period November 1976 to June 1990." (Emphasis in the original). STAND contends that a DOE report, identified as LA-UR-96-150, indicates that there were approximately 1600 Unusual Occurrence Reports during this period. STAND specifically contends that the DOE's search for responsive documents should have included DOE Headquarters, the Idaho National Engineering and Environmental Laboratory, Sandia National Laboratory, Lawrence Livermore National Laboratory and the Pantex Plant.

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 reviewed the search for responsive documents conducted by Albuquerque and we are convinced that Albuquerque's search, which included the departmental elements cited in the appeal, was reasonably calculated to uncover the sought materials. However, in conducting our investigation of Albuquerque's search, we became aware that the requested documents may be in the custody of the DOE's Headquarters Office of Operating Experience Analysis, an element of the DOE's Office of Environment, Safety and Health (ESH). Accordingly, we are remanding this matter to ESH to conduct a further search for responsive documents and to issue a determination to STAND regarding the results of that search.

It Is Therefore Ordered That:

(1) The Appeal filed by STAND, Inc. on October 13, 1999, Case Number VFA-0532, is hereby granted as set forth in Paragraph (2) and denied in all other aspects.

(2) The portion of the Appeal concerning the search for responsive documents is hereby remanded to the Assistant Secretary for Environment, Safety and Health to conduct a further search for documents responsive to the Appellant's request and to issue a new determination in accordance with the instructions set forth above.

(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 located, or in the District of Columbia.

George B. Breznay

Director

Office of Hearings and Appeals

Date: November 24, 1999