Case No. VFA-0680

July 20, 2001

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

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

Date of Filing: June 21, 2001

Case Number: VFA-0680

On June 21, 2001, R.E.V. Engineering Services (“the Firm”) filed an Appeal 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, because the FOIA and Privacy Act Division of the Office of the Executive Secretariat (FOIA Office) has failed to respond to the Firm’s FOIA request in a timely fashion or provide an explanation for the delay. In its Appeal, the Firm requests that the FOIA Office release the requested information or explain the delay, and provide a date certain for the release of the requested information.

The Firm’s appeal must be dismissed because OHA does not have the jurisdiction to decide matters that relate to whether the agency has responded to a FOIA request in a timely fashion. Section 1004.8(a) of the DOE regulations grants OHA jurisdiction to consider FOIA appeals 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 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). Accordingly, this Appeal must be dismissed.(1)

It Is Therefore Ordered That:

(1) As set forth above, the Appeal filed by R.E.V. Engineering Services on June 21, 2001, is dismissed .

(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: July 20, 2001

(1)Because it did not receive a timely response to the FOIA request that it submitted, the Firm is considered to have exhausted its administrative remedies. See 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 statutory 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).