Case No. VFA-0662, 28 DOE ¶ 80,162
April 12, 2001
DECISION AND ORDER
OF THE DEPARTMENT OF ENERGY
Appeal
Name of Petitioner: Attorney General of New Mexico
Date of Filing: March 19, 2001
Case Number: VFA-0662
On March 19, 2001, the Office of the Attorney General of New Mexico (AGNM) filed an Appeal from a determination issued to it in response to a request for documents that the AGNM 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 February 15, 2001, by the DOE’s Albuquerque Operations Office (DOE/AL). This Appeal, if granted, would require that DOE/AL perform an additional search.
I. Background
On February 1, 2001, the AGNM submitted a FOIA request to DOE/AL and the DOE’s Carlsbad Operations Office (DOE/COO) for: (1) all documents that may identify or consider the Waste Isolation Pilot Plant (WIPP) site in Carlsbad, New Mexico as a potential site for the storage or disposal of spent reactor fuel or high-level radioactive wastes; (2) all documents suggesting the WIPP site in New Mexico as an alternative site to the Yucca Mountain site in Nevada; (3) all documents setting forth alternative sites if Yucca Mountain is not selected to be the DOE site receiving high level radioactive waste or spent reactor fuel; and (4) all letters and other correspondence to or from DOE concerning these issues (including internal communications). Letter from the AGNM to DOE/AL and DOE/COO (February 1, 2001) (Request).
On February 7, 2001, DOE/AL sent the AGNM a letter stating that both DOE/AL and DOE/COO were conducting a search for responsive records. Letter from Carolyn Becknell, FOIA Officer, DOE/AL to the AGNM (February 7, 2001) (Acknowledgment Letter). The DOE/AL FOIA Officer also stated in the letter that she had notified the DOE Headquarters WIPP Office (DOE/HQ WIPP Office) and the DOE Yucca Mountain Office (Yucca Mountain) about the request, and asked them to perform a “cursory search.” Id; Memorandum from Carolyn Becknell, FOIA Officer, DOE/AL
to Valerie Vance Adeyeye, Staff Attorney, OHA (March 27, 2001) (Memo) at 1. (1) The DOE/HQ WIPP Office found no responsive records. Acknowledgment Letter at 1. Personnel at both offices advised the FOIA Officer that DOE/COO was the most likely site to contain responsive material. Memo at 1-2.
On February 15, 2001, DOE/AL sent a final determination. In the Determination Letter, DOE/AL indicated that it had searched its Waste Management Division, Site Programs Divisions, Nuclear Programs Division, Environment, Safety and Health Division, and Office of Chief Counsel but did not locate any responsive records. Letter from Carolyn Becknell, FOIA Officer, DOE/AL to the AGNM (February 15, 2001) (Determination). DOE/AL also stated that Yucca Mountain had no responsive records. Id. Finally, the FOIA Officer informed the AGNM that DOE/COO was still searching and would send a separate response directly to the requester. Id.
The AGNM filed this Appeal on March 19, 2001. Letter from the AGNM to Director, OHA (March 19, 2001). In the Appeal, the AGNM outlined five alleged “deficiencies” in the Determination: (1) failure to perform an adequate search in the DOE/AL offices; (2) failure to forward the request to DOE/HQ WIPP Office; (3) failure to forward the request to Yucca Mountain; (4) failure to forward the request to DOE/HQ FOIA Office; and (5) failure to have the decision signed off by an authorizing official. Id. The AGNM requested that OHA remand this matter for an adequate search. Id. at 3.
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 DOE/AL to ascertain the scope of the search and to address the five allegations set forth in the Appeal.
(1) Alleged Failure to Perform an Adequate Search at DOE/AL
In the Appeal, the AGNM argued that DOE/AL had performed an inadequate search of its offices because it had not searched remote offices under its control, such as Sandia National Laboratory, Los Alamos National Laboratory, Pantex, Carlsbad Operations or “a significant number of other site offices.” Appeal at 2.
The DOE/AL FOIA Officer informed us that she performed an adequate but not exhaustive search. She stated that she searched the offices that were recommended to her as possibly containing responsive records, and all of the recommendations were that DOE/COO had the documents that the requester wanted. Memo at 1. According to the FOIA Officer, she was not required to search every office under DOE/AL’s control without a reasonable belief that responsive records were located there. Electronic mail message from Carolyn Becknell, DOE/AL FOIA Officer to Valerie Vance Adeyeye, OHA (April 6, 2001).
(2) Alleged Failure to Forward the Request to the DOE/HQ WIPP Office in the Office of the Deputy Assistant Secretary for Integration and Disposition
The AGNM alleges that DOE/AL did not forward the request to the DOE/HQ WIPP Office. Appeal at 1. However, the DOE/AL FOIA Officer informed us that she did contact the WIPP office in Washington, D.C. directly and asked that office to perform a “cursory look.” Its search found no responsive records. Memo at 2.
(3) Alleged Failure to Forward the Request to Yucca Mountain
The AGNM also alleges that the DOE/AL FOIA Officer did not forward the request to the Yucca Mountain Office. However, the FOIA Officer indicated that she promptly contacted an employee at Yucca Mountain, who also performed a “cursory look.” Memo at 2. This employee found no responsive records, and recommended that the FOIA Officer search DOE/COO. Id.
(4) Alleged Failure to Forward the Request to the DOE/HQ FOIA Office
The AGNM further contends that the DOE/AL FOIA Officer neglected to forward the request to the FOIA Office at DOE/HQ in Washington, D.C. Appeal at 1. The FOIA Officer confirms that she did not forward the request to DOE/HQ. Memo at 1. However, this is because she knew that the Office of the Secretary of Energy had received a copy of the request, and would follow its standard procedure of transferring the request to the FOIA Office at DOE/HQ for processing. Id. In order
to confirm this, she contacted DOE/HQ on February 6, 2001, to see if it had received the request. Id. She actively monitored the status of the request until notified that the FOIA Office at DOE/HQ had received the request and conducted a search. Memo at 2. The FOIA Office at DOE/HQ sent the AGNM a letter dated March 15, 2001, indicating that no responsive records were found. Memo at 2.
(5) Alleged Failure to Secure the Signature of an Authorizing Official on a Final Determination
The AGNM argues that “it is also not clear that the FOIA officer who handled this FOIA request was in fact the authorizing official who could sign the final response.” Appeal at 3.
Ms. Becknell states that she is the FOIA Officer for DOE/AL and as such has the authority to sign acknowledgment letters or a “no responsive record” response to a request. Memo at 2. Her responses to the requester were also approved by the DOE/AL Office of Chief Counsel. Id. We also note that Ms. Becknell is recognized by this office as the FOIA Officer for DOE/AL.
B. Adequacy of the Initial Search
As a result of our communications with the FOIA Officer, it is clear that DOE/AL and the other DOE offices performed an adequate initial search. The search was not exhaustive, nor was it required to be. Contrary to the appellant’s assertions, the FOIA Officer actively fulfilled her duties and contacted the offices named in Items 2-4 (DOE/HQ WIPP Office, Yucca Mountain, DOE/HQ FOIA Office). In addition, while processing this Appeal we were informed that DOE/COO, the site recommended to the FOIA Officer as containing responsive records, did in fact locate and release responsive material to the AGNM. Memo at 6-8. However, these records had not yet been released to the AGNM at the time that it filed the Appeal. Id.
C. Evidence of Additional Responsive Documents
In previous cases we have held that challenges to the adequacy of the agency’s search must be supported by the presentation of some evidence that a requested document, unidentified by the agency in its search, does in fact exist. See Butler, Vines and Babb, P.L.L.C., 25 DOE ¶ 80,152 at 80,630 (1995) (Butler) (citing Sun Co., 11 DOE ¶ 80,114 (1983); Vinson & Elkins, 4 DOE ¶ 80,127 (1979)). The AGNM has presented evidence in the Appeal that additional responsive documents exist. First, the AGNM identified an April 9, 1999 newsletter published by the Sandia National Laboratory containing information that Sandia had done studies prior to 1980 concerning the
development of the WIPP site. Appeal at 2. In addition, the AGNM also identified a 1980 WIPP Environmental Impact Study (EIS) that was not located in the DOE/AL search. Id. (2)
We have also, in the past, remanded a case if a FOIA Officer confirms a “reasonable possibility that responsive documents may exist at another location.” See Butler, 25 DOE at 80,630. However, the DOE/AL FOIA Officer has indicated that Sandia performed the WIPP studies under the direction of DOE/COO, and the search of DOE/COO uncovered documents that were actually created at Sandia. Electronic mail message from DOE/AL FOIA Officer to Valerie Vance Adeyeye, OHA (April 6, 2001) Id. She is convinced that a search of Sandia would uncover only duplicate documents. Id. Her thesis is supported not only by consistent recommendations from FOIA personnel in other locations who advised her to focus her search efforts on DOE/COO, but also by the discovery of Sandia-created WIPP documents at DOE/COO. Memo at 1-2. Therefore, we find that DOE/AL conducted a search reasonably calculated to uncover the material requested by the AGNM. (3) Accordingly, this Appeal is denied.
It Is Therefore Ordered That:
(1) The Freedom of Information Act Appeal filed by the Attorney General of New Mexico on March 19, 2001, OHA Case Number VFA-0662, 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: April 12, 2001
(1)DOE/AL has informed us that a “cursory search” or “cursory look” is a form of initial inquiry used to determine whether responsive material exists at a certain location. The procedure is initiated by faxing a copy of the request to an office that may contain responsive records and asking that office to check indexes, file plans and other similar documents for responsive material. Unlike a full FOIA search, the responding office is not required to identify each document specifically. However, if the office finds responsive records, the FOIA Officer then transfers the request there. That location then conducts a thorough search and identifies the responsive material. Electronic Mail Message from Carolyn Becknell, FOIA Officer, DOE/AL to Valerie Vance Adeyeye, OHA Staff Attorney (March 28, 2001).
(2)We were informed that the EIS was located at DOE/COO and released to the AGNM on March 29, 2001. Memo at 6; Electronic Mail Message from DOE/AL to Valerie Vance Adeyeye, OHA (April 6, 2001).
(3)Despite her belief that all of the responsive documents were located at DOE/COO and released by that office, the DOE/AL FOIA Officer has agreed to ask Sandia to perform a “cursory search ” so that she can answer the AGNM’s concern about documents at that site. Electronic mail message from DOE/AL to Valerie Vance Adeyeye, OHA (April 6, 2001).