Case No. VFA-0636, 28 DOE ¶ 80,136

January 10, 2001

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: R.E.V. Engineering Services

Date of Filing: December 11, 2000

Case Number: VFA-0636

On December 11, 2000, R.E.V. Engineering Services (“R.E.V. Eng. Services” or “the Firm”) filed an Appeal from a partial determination issued on November 30, 2000, by the Rocky Flats Field Office (Rocky Flats) of the Department of Energy (DOE) under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004. In this Appeal, the Firm contends that Rocky Flats has failed to acknowledge or respond to its FOIA request in a timely fashion and conducted an inadequate search for a non-classified document.(1)

I. BACKGROUND

By letter dated July 11, 2000, the Firm filed a FOIA request with Rocky Flats seeking a copy of a document that is commonly known as the “1999 SSSP." On November 30, 2000, the Rocky Flats FOIA/Privacy Act Officer wrote a letter that responded to the Firm’s FOIA request by stating, in

relevant part, that:

. . . we have located the classified document known as the ?1999 SSSP’ . . . No unclassified version of this document exists. The Departments of Energy’s processes dictate two mandatory reviews of classified documents that are responsive to FOIA requests. They are time intensive and taking up to two years for our Washington, D.C. office to complete The withheld classified document has been determined to be responsive to your request, therefore the field local classification staff will review the document first. After this review is completed, the document will be sent to the Document Declassification Division, Office of Security and Emergency Operations, Washington, D.C. for the final determination review . . .

On December 11, 2000, the Firm filed an Appeal in which it alleges that Rocky Flats had (1) failed to acknowledge or respond to its FOIA request within the time required by law, and (2) failed to conduct an adequate search for an unclassified, electronic version of the 1999 SSSP. In support of its argument that the search performed was inadequate, the Firm states that the electronic version of the 1999 SSSP was marked for classification at the time that it was prepared, and that the electronic document could provide a completely unclassified record with little effort.

II. ANALYSIS

A. Failure to Process a FOIA Request in a Timely Fashion

The portion of the Firm’s Appeal that is based on the failure to process a FOIA request within the time specified by law must be dismissed because OHA does not have the jurisdiction to decide this issue. Section 1004.8(a) of the DOE regulations grants OHA jurisdiction to consider FOIA appeals only in the following circumstances:

When the Authorizing Officer has denied a request for records in whole or in part or has responded that there are no documents responsive to the request . . . or when the Freedom of Information Officer has denied a request for waiver of fees.

10 C.F.R. § 1004.8(a). Section 1004.8(a) has been construed to confer jurisdiction on OHA only when an Authorizing Official has issued a determination that (1) denies a request for records, (2) states there are no records responsive to the FOIA request, or (3) denies a request for a waiver of fees. Suffolk County, 17 DOE ¶ 80,111 at 80,524 (1988). OHA has consistently held that Section 1004.8(a) does not confer jurisdiction when the requester has not received an initial determination from an Authorizing Official, or when an appeal is based on the agency’s failure to process a FOIA within the time specified by law. John H. Hnatio, 13 DOE ¶ 80,119 at 80,566 (1985) (dismissing appeal because no determination issued); Tulsa Tribune, 11 DOE ¶ 80,161 at 80,741 (1984) (no administrative remedy for agency's non-compliance with a timeliness requirement).(2) Accordingly, the portion of the Appeal that deals with the agency’s failure to process a FOIA request within the time specified by law must be dismissed.

B. Reasonableness of the Search for Unclassified Records

The FOIA requires that documents held by federal agencies generally be released to the public upon request. Following an appropriate request, agencies are required to search their records for responsive documents. 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., David G. Swanson, 27 DOE ¶ 80,178 (1999); Butler, Vines and Babb, P.L.L.C., 25 DOE ¶ 80,152 (1995). In cases such as these, "[t]he issue is not whether any further responsive documents might conceivably exist but rather whether the government's search for responsive documents was inadequate." Perry v. Block, 684 F.2d 121, 128 (D.C. Cir. 1982) (emphasis in original).

To determine whether an agency's search was adequate, we must examine its actions under a "standard of reasonableness." McGehee v. CIA, 697 F.2d 1095, 1100-01, modified in part on rehearing, 711 F.2d 1076 (D.C. Cir. 1983). This standard "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). Furthermore, the determination of whether a search was reasonable is "dependent upon the circumstances of the case." Founding Church of Scientology v. National Security Agency, 610 F.2d 824, 834 (D.C. Cir. 1979).

In reviewing the present Appeal, we contacted the Rocky Flats FOIA/Privacy Act Officer to ascertain the extent of the search that had been performed for the unclassified document. Based on information received from the Classification Officer for the DOE Rocky Flats Field Office, the FOIA/Privacy Act Officer informed us that no electronic or paper unclassified version of the “1999 SSSP" document exists. See E-Mail Message from Mary Hammack to Linda Lazarus (January 4, 2001). Although the FOIA/ Privacy Act Officer indicated that the electronic version of the classified document had been “portion marked,” she also stated that there was no evidence that the interrelationships of the various paragraphs to each other had been reviewed for classified information. The FOIA/Privacy Act Officer further informed us that no part of a classified document may be released before the DOE declassification process has been completed. Id.

Given the facts presented to us, we find that Rocky Flats conducted an adequate search which was reasonably calculated to discover an unclassified version of the 1999 SSSP. Therefore, we must deny this part of the Firm’s Appeal.

It Is Therefore Ordered That:

(1) As set forth above, the Appeal filed by R.E.V. Engineering Services on December 11, 2000, is dismissed in part and denied in part.

(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: January 10, 2001

(1)In its Appeal, the Firm also requested that we order Rocky Flats to waive all charges that relate to this FOIA request because of the significant public interest in the subject, or in the alternative, refrain from charging fees for the time that the agency will spend reviewing these records. We dismiss both these issues on procedural grounds. First, we are without jurisdiction to determine whether all charges should be waived because the Firm never asked Rocky Flats for such a waiver, and, under 10 C.F.R. §1004.8(a), our jurisdiction is limited to issues that have already been determined. See Memorandum of Telephone Conversation between David Ridenour, R.E.V. Eng. Services and Linda Lazarus, OHA Staff Attorney (December 12, 2000). Second, the part of the Appeal that involves the propriety of the proposed charges for the agency review of documents will be dismissed as moot because the Rocky Flats FOIA Officer has indicated that a new determination will be issued on the calculation of fees. See Memorandum of Telephone Conversation between Mary Hammack, FOIA/Privacy Act Officer and Linda Lazarus (January 4, 2001).

(2)Because it did not receive a timely response to its FOIA request, the Firm is considered to have exhausted its administrative remedies. 10 C.F.R. § 1004.5(d)(4); 5 U.S.C. § 552(a)(6)(c). Accordingly, under the FOIA, the Firm may seek the release of the requested documents in federal district court. 5 U.S.C. § 552(a)(4)(B). However, the agency’s failure to comply with the ten day time limit does not result in a waiver of any FOIA exemptions. See Suffolk County, 17 DOE ¶ 80,111 at 80,524 (1988) ; James E. Davis, 11 DOE ¶ 80,151 at 80,689 (1983).