Case No. VFA-0611, 28 DOE ¶ 80,119

October 19, 2000

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Northwest Technical Resources, Inc.

Date of Filing: September 18, 2000

Case Number: VFA-0611

On September 18, 2000, Northwest Technical Resources, Inc. (NTR) filed an Appeal from a determination issued to it in response to a request for documents submitted 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 determination was issued on August 17, 2000, by the Richland Operations Office (Richland). This Appeal, if granted, would require that Richland perform an additional search, release responsive documents, and grant NTR a fee waiver.

I. Background

On May 25, 2000, NTR submitted a FOIA request to Richland for copies of : (1) all documents, correspondence, and information related to Subcontract 0000X-MR-G0066 between NTR and Bechtel Hanford Inc. (Bechtel) and (2) all documents, correspondence, and information related to Subcontract 0000X-SC-G0131 between NTR and Bechtel. Letter from NTR to Richland (May 25, 2000) (Request). NTR narrowed the request on June 2, 2000, to exclude the actual contract. Letter from NTR to Richland (June 2, 2000). Richland conducted a search of its files and sent two interim responses and one final response to NTR. In the final response, Richland released responsive information, with some material withheld under Exemption 6, and other material deleted because it was “not responsive.” Letter from Richland to NTR (August 17, 2000). Richland also charged NTR $358.51 for the search. (1)

On September18, 2000, NTR filed this Appeal. In the Appeal, the company stated that it did not receive all responsive material and that it should be granted a fee waiver. Letter from NTR to Director, Office of Hearings and Appeals (OHA) (September 18, 2000) (Appeal). NTR specifically asked for the release of three documents referring to Subcontract 0000X-SC-G0131 (the same three documents that NTR identified in its second request) and for the release of the information that was deleted from seven procurement documents.

II. Analysis

A. ADEQUACY OF SEARCH

In responding to a request for information filed under the FOIA, it is well established that an agency must “conduct a search reasonably calculated to uncover all relevant documents.” Truitt v. United States Dep’t. of State, 897 F.2d 540, 542 (D.C. Cir. 1990). “The 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. United States Dep’t. of State, 779 F.2d 1378, 1384-85 (8th Cir. 1985); accord Truitt, 897 F.2d at 542. We have not hesitated to remand a case where it is evident that the search conducted was in fact inadequate. See, e.g., Glen Milner, 17 DOE ¶ 80,102 (1988).

We contacted Richland to ascertain the scope of the search, particularly in light of NTR’s identification of specific documents that were not released to the company. Richland informed us that, after searching its files in response to NTR’s second request, Richland had located some additional responsive material. See Memorandum of Telephone Conversation between Dorothy Riehle, Richland, and Valerie Vance Adeyeye, OHA (October 3, 2000). The additional material related to Subcontract 0000X-SC-G0131, the subject of this Appeal. Richland released that additional material to NTR on September 13, 2000, apparently as NTR was sending this Appeal to OHA. Letter from Richland to NTR (September 13, 2000). We therefore find that Richland has conducted an adequate search of records in its possession.

B. FEE WAIVER

NTR also appealed the assessment of fees associated with the request. Appeal at 2. According to NTR, its request seeks information that will provide “valuable insight” to the public regarding federal government activities related to contract negotiations. Id. For the following reasons, we find that Richland properly charged NTR for the search.

Although the FOIA generally requires that requesters pay fees for the processing of their requests, the statute does allow for a fee waiver under certain circumstances. See Ruth Towle Murphy, 27 DOE ¶ 80,173 (1998) (describing the test for a fee waiver). However, NTR did not ask Richland to waive the fees associated with this request. In fact, NTR agreed to incur charges up to $100 and asked Richland to obtain NTR’s approval of any charges in excess of that amount. Request at 1. Therefore, Richland was not required to make a determination on NTR’s eligibility for a fee waiver. Because OHA’s jurisdiction is limited to the contents of a final determination, 10 C.F.R. § 1004.8, this issue is not before us.

C. NON-RESPONSIVE INFORMATION

Richland redacted some information from the responsive documents, and identified the redacted data as “not responsive to [NTR’s] request.” Determination at 1. NTR then requested that Richland disclose the non-exempt portion of the non-responsive material. Appeal at 2. We reviewed this material and agree with Richland that it does not pertain to NTR’s request for information about the Bechtel-NTR contracts. In fact, the redacted material deals with contracts between Bechtel and other private companies. Therefore, we find that the non-responsive material is not subject to disclosure under the FOIA. Accordingly, we shall deny this portion of the Appeal.

It Is Therefore Ordered That:

(1) The Freedom of Information Act Appeal filed by Northwest Technical Resources, Inc. on September 18, 2000, OHA Case Number VFA-0611, is hereby denied.

(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 situated, or in the District of Columbia.

George B. Breznay

Director

Office of Hearings and Appeals

Date: October 19, 2000

(1)On the same day, NTR submitted a new request to Richland for three documents referring to Subcontract 0000X-SC-G0131. Letter from NTR to Richland (August 17, 2000). Richland conducted a new search, found more responsive material, and released that information to NTR on September 13, 2000. Letter from Richland to NTR (September 13, 2000).