Case No. VFA-0707

January 16, 2002

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: David B. McCoy

Date of Filing: November 21, 2001

Case Number: VFA-0707

On November 21, 2001, David B. McCoy filed an appeal from a determination issued to him in response to five requests for documents that he 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 October 22, 2001, by the DOE Idaho Operations Office (Idaho). This Appeal if granted, would require that Idaho perform an additional search for the information Mr. McCoy requested.

I. Background

This Appeal concerns five FOIA requests that Mr. McCoy submitted to Idaho.(1) Mr. McCoy’s first request, Idaho Request No. 01-041 (Request No. 41), concerns the Liquid Effluent Treatment and Disposal Facility (LET&D). The second request, Idaho Request No. 01-043 (Request No. 43), concerns Idaho National Engineering and Environmental Laboratory (INEEL). The third request, Idaho Request No. 01-044 (Request No. 44), concerns the Processing Equipment Waste Evaporator (PEWE). The fourth request, Idaho Request No. 01-045 (Request No. 45), concerns the High Level Liquid Waste Evaporator (HLLWE). The fifth and final request, Idaho Request No. 01-048 (Request No. 48), concerns a number of different facilities.

Idaho determined that a number of the items Mr. McCoy was requesting did not exist or could not be located. Idaho indicated that Item No. 41-1a, a letter from the Environmental Protection Agency (EPA) to the Hanford site, should be requested from the EPA, because it originated with that agency. For two Items, Item Nos. 41-5 and 41-27, Idaho found that each request is too broad, because the number of documents responsive to his request is extensive.

Mr. McCoy challenges the adequacy of Idaho’s search for some documents. He bases these challenges on other documents that indicate certain tests were to be conducted and reports generated. He also bases these challenges on other documents that indicate the facilities were being operated under consent order or permits for which an application is needed. Further, he protests the withholding of the letter from EPA to Hanford , claiming that the FOIA requires release of documents held by federal agencies. He is also challenging the requirement to clarify the two Items that Idaho believes are too broad.

II. Analysis

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. Department 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. Department 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., David G. Swanson, 27 DOE ¶ 80,178 (1999); Butler, Vines and Babb, P.L.L.C., 25 DOE ¶ 80,152 (1995).

In order to determine what type of search was conducted, we contacted Idaho. Idaho indicated that the DOE conducted a computer search of its database and also a hand search of its hard files. The contractor conducted a similar search. Neither the DOE nor the contractor recovered anything responsive to Mr. McCoy’s Item Nos. 41-1b, 41-1c, 41-2, 41-19, 41-20, 43-4, 44-3, 44-21, 44-24, 45-1, 45-17, 45-20, 45-25, and 48-7b. We believe that the search of both computer and hard files, which was done in this case, is sufficient to recover the information Mr. McCoy is requesting. In most instances, Mr. McCoy has not provided any additional information or support, beyond his belief that responsive documents exist. We will address each of the specific challenges he has raised.

Mr. McCoy challenges Idaho’s failure to find responsive documents for Item Nos. 41-1b, 41-1c, and 41-2, claiming that DOE believes EPA must provide any responsive documents. However, Idaho was unable to locate documents responsive to Item Nos. 41-1b, 41-1c, and 41-2. At no time did Idaho indicate that it expected EPA to provide to Mr. McCoy any responsive document. Idaho was merely stating it was unable to find documents.

For Item Nos. 44-3 and 45-1, in his Appeal Mr. McCoy did not provide any further argument or proof that the document responsive to these requests exist. He merely claims that the search was inadequate. He does not indicate where any responsive documents could be found. Idaho was unable to locate anything responsive, although the search it conducted, of both its computer and paper files, was calculated to uncover the requested information. Mr. McCoy’s belief that the information must exist is not a sufficient argument that Idaho must find the information or that the search was somehow inadequate.

In regard to Item No. 41-19, Mr. McCoy requested the screening level risk assessment for the LET&D. Idaho responded that no specific screening level risk assessment was conducted and, therefore, nothing responsive to Mr. McCoy’s request exists. Again, Mr. McCoy merely states that the search was inadequate, and that is insufficient to warrant reversal. The reports requested in Item No. 41-20, biannual operation reports from 1990 to present, do not exist. Mr. McCoy has not presented any evidence to the contrary and merely states that Idaho did not conduct an adequate search. Again, without some indication of where to find the documents or proof that they exist, Mr. McCoy’s allegations are insufficient. Next, Mr. McCoy requested documents analyzing the cumulative risk from all thermal treatment units at the INEEL in Item No. 43-4. Idaho found nothing responsive to this request. Mr. McCoy challenges that finding, quoting the November 16, 1995 Resource Conservation Recovery Act (RCRA) quarterly meeting minutes, which state that "the cumulative risk from all thermal treatment units on the INEL will be calculated at some point." Appeal Letter at 3 (emphasis added), quoting November 16, 1995 RCRA quarterly meeting minutes at 4. Idaho responded that the anticipated work was never accomplished. Therefore, there are no documents responsive to Mr. McCoy’s request.

In addition, Mr. McCoy asked for RCRA Part A and Part B permits issued by the Idaho Department of Environmental Quality (DEQ) for the PEWE and HLLWE in Item Nos. 44-21 and 45-17. Idaho responded that there is no Part A permit under the RCRA, just a Part A application, which has already been provided to Mr. McCoy. Further, no Part B permit has been issued by DEQ, although the Part B application has been submitted and is available in the Idaho public reading room. In Item Nos. 44-24 and 45-20, Mr. McCoy requests “[a]ny documents issued in lieu of a permit by DEQ and/or EPA for operation” of PEWE and HLLWE. Request Letter Nos. 44 and 45. Idaho found nothing responsive. Item No. 45-25 requests “all written or electronic documents identifying all liquid discharges or groundwater discharges, including leaks from the HLLWE.” Request Letter No. 45. Idaho indicated that no leaks have occurred at HLLWE, and therefore, there are no documents responsive to this request. Mr. McCoy requests documents that support an analysis that a number of facilities were unpermittable. He is referring to a document which states that a number of the facilities will be operated under interim status and a consent order because the facilities were “unpermittable.” Item No. 48-7b. Idaho responded that it had no responsive documents. Mr. McCoy counters that the decision that the facilities were “unpermittable” could not have been made in a vacuum. Idaho has advised this Office that the analysis supporting the document Mr. McCoy has, upon which his request was based, was not memorialized in writing.

In Item No. 41-26, Mr. McCoy requests “any pending applications for LET&D.” Request Letter No. 41. Mr. McCoy objects that the Idaho search was not adequate because the information was not recovered. DOE has stated that at the date of Mr. McCoy’s request, the Part B application had not been submitted, despite Mr. McCoy’s assertion to the contrary. The FOIA does not require that documents not in existence at the time of the request be released. It cannot be used to create information or request future information. 5 U.S.C. § 552; 10 C.F.R. § 1004.4(d)(1), (2); Barbara Schwarz, 28 DOE ¶ 80,199 (2001).

Repeatedly, Mr. McCoy requests copies of consent orders about the various facilities, Item Nos. 41-14, 41-15, 44-5, 45-8, and 45-9. At the time of the determination, Idaho believed that it had no documents responsive to these requests. Mr. McCoy challenged that response, claiming that EPA issued Consent Orders about the various facilities. Idaho did not locate any Consent Orders responsive to Mr. McCoy’s request. However, it now believes that the search it conducted for the Consent Orders may not have been thorough enough. Therefore, we will remand this aspect of the matter for a further search on Item Nos. 41-14, 41-15, 44-5, 45-8, and 45-9.

In addition, Mr. McCoy requested a copy of a letter from EPA to Hanford, Item No. 41-1a. DOE responded that the letter belongs to EPA and should be requested from that agency. We disagree. Once the letter was received by Idaho, it became a DOE document. Therefore, Idaho must either release the letter or issue a new determination that justifies its withholding.

The final two items of Mr. McCoy’s requests are Item Nos. 41-5 and 41-27. In Item No. 41-5, Mr. McCoy asked that Idaho “[p]rovide the index for all written or electronic documents that contain documents contained in the administrative record for the LET&D.” Request Letter No. 41 at 2. Idaho responded that the request was unclear and needed clarification. In his Appeal, Mr. McCoy did clarify his request. Therefore, we will remand this matter to Idaho for a further determination on Item No. 41-5. In Item No. 41-27, Mr. McCoy asks for “all correspondence between DOE and DEQ and/or EPA respecting the LET&D.” Request Letter No. 41. In its determination, Idaho asked that Mr. McCoy narrow the focus of the request. We do not believe this is an adequate determination in response to his request. In this case, Idaho does not claim that the search is burdensome, but rather that a burdensome number of documents will be located. Under these circumstances, Idaho cannot require that Mr. McCoy narrow the focus of his request. Burlin McKinney, 26 DOE ¶ 80,215 at 80,847-48 (1997). Idaho must provide the requested information, though it may recoup all applicable fees from Mr. McCoy.(2) Therefore, we will remand this matter to Idaho for a further determination.

III. Conclusion

Idaho was unable to locate some of the information Mr. McCoy requested, although the search it conducted was calculated to uncover all relevant documents. Idaho searched both its computer database and hard files. Mr. McCoy was unable to provide any additional information, other than his individual belief that the search was inadequate, to direct Idaho to the location of the documents. For those items where Idaho was unable to locate documents responsive to his requests, we will deny Mr. McCoy’s Appeal. However, we are remanding the matter for a new determination on a number of items. Idaho must locate and identify copies of any Consent Orders Mr. McCoy requested. Idaho must issue a new determination in regard to Item No. 41-1a, the letter from EPA to the Hanford site. Finally, Idaho must locate the information requested in response to two of the request items, even if there are an immense number of documents responsive to the requests. After locating the above information, Idaho must release it, subject to fees where applicable, or issue a new determination that justifies the withholding of any information. Therefore, we are denying Mr. McCoy’s Appeal in part and granting it in part and remanding the matter to Idaho.

It Is Therefore Ordered That:

(1) The Freedom of Information Act Appeal filed by David B. McCoy on November 21, 2001, OHA Case Number VFA-0707, is hereby denied in part and granted in part.

(2) This matter is hereby remanded to the Idaho Operations Office for the issuance of a new determination in accordance with the instructions set forth in the Decision.

(3) 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 requestor resides or has a principle 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 16, 2002

(1)Each of Mr. McCoy’s five overall requests will be referred to only by the last two digits of the request number assigned by Idaho. Further, each requests contain numerous itemized requests. In order to identify an item within a specific request to which we are referring, without recreating Mr. McCoy’s extensive lists, we will refer to the item by the request number assigned to the letter by Idaho and the item number Mr. McCoy utilized in that request. For example, the second item of request number 43 will be referred to as Item No. 43-2.

(2)Mr. McCoy did not request a fee waiver in Request No. 41, as he did in some of the other requests, Nos. 43, 45, and 48.