Case No. VFA-0665, 28 DOE ¶ 80,169

May 9, 2001

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Attorney General of New Mexico

Date of Filing: April 11, 2001

Case Number: VFA-0665

The Attorney General of New Mexico (New Mexico) filed an Appeal from a determination issued on March 15, 2001, by the Waste Isolation Pilot Plant Office (WIPP Office) of the Department of Energy (DOE) in response to a request for documents submitted under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004. For the reasons set forth below, we are remanding this matter to the WIPP Office to perform an additional search for responsive documents.

On February 1, 2001, New Mexico submitted a FOIA request to DOE’s Albuquerque Operations Office (Albuquerque) and Carlsbad Operations Office (Carlsbad) for (1) all documents that may identify or consider the 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).

On March 15, 2001, Paul Detwiler, an attorney-advisor in the DOE Office of General Counsel, issued a determination letter to New Mexico. In this letter, Mr. Detwiler indicated that he was responding to the February 1, 2001 FOIA request that New Mexico had sent to Albuquerque and Carlsbad, and also stated that the WIPP Office had reviewed its files and had not found any responsive documents. Mr. Detwiler further explained that "[t]he reason for this lack of responsive documents is that DOE does not consider WIPP as a potential storage or disposal facility for high- level waste or spent fuel because the WIPP Land Withdrawal Act explicitly prohibited these activities at WIPP.”

On April 10, 2001, New Mexico appealed the March 15, 2001 determination issued by Mr. Detwiler. In this Appeal, New Mexico indicated that it believed that the search conducted by the

WIPP Office was inadequate because it appeared that a search had not been conducted for responsive documents that pre-date 1992.(1)

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).

As we find that records that pre-date 1992 could reasonably contain information responsive to the FOIA request that New Mexico filed, we inquired into the adequacy of the search conducted by the WIPP Office. As part of this inquiry, we contacted Timothy Harms, an environmental engineer who conducted the search for responsive documents in the WIPP Office. Mr. Harms told us that he searched for documents that were responsive to New Mexico’s FOIA request by reviewing his own records, the official WIPP Office (EM-23) files, and historical files from an organization (EM-34) that had previously been responsible for Headquarters management of the WIPP facility. Mr. Harms explained that he reviewed all the records in the WIPP Office which, in his professional opinion, had a reasonable probability for containing a discussion on the potential for disposal of either high-level waste or spent fuel at WIPP. Mr. Harms also explained that, as part of his search, he reviewed strategic plans (some dating back to 1982), legal briefs, and other programmatic documents, and also asked all of his colleagues in the WIPP office whether they had responsive documents. Electronic Mail Message from Timothy Harms, WIPP Office, to Linda Lazarus (May 4, 2001). After we explained that New Mexico was concerned about documents that pre-date 1992, Mr. Harms stated that an additional search was warranted. Memorandum of Telephone Conversation between Linda Lazarus and Timothy Harms (May 7, 2001). We will remand this matter to the WIPP Office to perform a new search. Following this search, the WIPP Office should issue a new determination letter that releases all information responsive to the request or identifies any responsive information it is withholding and provides adequate justification for such withholding.

It Is Therefore Ordered That:

(1) The Freedom of Information Act Appeal filed by the Office of the Attorney General of New Mexico on April 11, 2001, OHA Case Number VFA-0669, is hereby granted. This matter is hereby remanded to the Waste Isolation Pilot Plant Office (WIPP Office) to perform an additional search for documents and to release them or provide justification for withholding any portion of them.

(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: May 9, 2001

(1)On March 15, 2001, New Mexico sent a FOIA request to the WIPP Office, the Headquarters FOIA Office, and the Nevada Operations Office in which it requested the documents that it had requested from Albuquerque and Carlsbad as well as certain other documents. In its Appeal, New Mexico also alleges that the determination issued by Mr. Detwiler on March 15, 2001, was really issued in response to that FOIA request. However, we find that the evidence is to the contrary. The determination letter issued by Mr. Detwiler on March 15, 2001, indicates that it is written in response to the FOIA request that New Mexico filed on February 1, 2001. Moreover, DOE has not yet issued a determination in response to the March 15, 2001 FOIA request filed by New Mexico. New Mexico will have the opportunity to appeal this determination after it has been issued. Memorandum of Telephone Conversation between Linda Lazarus, Staff Attorney, OHA and Alexander C. Morris, FOIA and Privacy Act Specialist, Headquarters FOIA Office (May 7, 2001).