Case No. VFA-0669, 28 DOE ¶ 80,171

June 1, 2001

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Attorney General of New Mexico

Date of Filing: May 3, 2001

Case Number: VFA-0669

This Decision and Order concerns an Appeal that was filed by the Attorney General of New Mexico from a determination issued to him by the Freedom of Information Officer of the Department of Energy’s (DOE) Carlsbad Field Office (CFO). In this determination, the CFO provided to the Attorney General 42 documents that he requested pursuant to the Freedom of Information Act, 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004. In his Appeal, the Attorney General challenges the adequacy of the search for responsive documents.

In his FOIA request, the Attorney General sought access to all documents identifying or considering the Waste Isolation Pilot Plant (WIPP) site in Carlsbad, New Mexico, as a potential site for storage or disposal of spent reactor fuel or high level radioactive wastes, and all documents setting forth alternative sites that may be considered if the Yucca Mountain site in Nevada is not selected to receive these materials. In response to this request, CFO searched its facilities and located the 42 documents, which were provided to the Attorney General in their entirety. In his Appeal, the Attorney General contends that further responsive documents exist, and requests that we remand this matter to the CFO for a further search.

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).

In order to determine the scope of the search that was performed, we contacted the CFO. That Office informed us that certain facilities were inadvertently excluded from the initial search, and requested

that we remand this matter for the performance of a more complete search. See memorandum of May 30, 2001 telephone conversation between Robert Palmer, Office of Hearings and Appeals and Dennis Hurtt, CFO. We will therefore grant the Attorney General’s Appeal and remand this proceeding to the CFO for another search.

It Is Therefore Ordered That:

(1) The Appeal filed by the Attorney General of New Mexico in Case No. VFA-0665 is hereby granted as set forth in paragraph (2).

(2) This matter is remanded to the Carlsbad Field Office for the performance of another search for responsive documents.

(3) This is a final order of the Department of Energy from which any aggrieved party may seek judicial review. 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: June 1, 2001