Case No. VFA-0709

January 23, 2002

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner:Keep Yellowstone Nuclear Free

Case Number: VFA-0709

Date of Filing:December 17, 2001

On December 17, 2001, Keep Yellowstone Nuclear Free (KYNF) filed an Appeal from a final determination that the Idaho Operations Office of the Department of Energy (DOE-ID) issued on November 26, 2001. That determination concerned a request for documents submitted by KYNF pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004. If the present Appeal were granted, DOE-ID would be required to search for and provide further responsive documents.

Background

On August 13, 2001, Erik Ringelberg, on behalf of KYNF, submitted a FOIA request for “All written communications (including but not limited to: emails, memos, faxes, reports, minutes, and personal notes) between DOE-ID, EM-50, and ATG regarding:

  1. Legal permit status of the ATG plasma melter/vitrifier.
  2. Interpretations of the ATG plasma melter/vitrifier as an incinerator.
  3. Any issues with air monitoring and compliance with ATG plasma melter/vitrifier.
  4. The efficacy of the ATG plasma melter/vitrifier air pollution control system.
  5. The proposed testing and/or use of INEEL waste at the ATG plasma melter/vitrifier.
  6. The proposed volumes, and waste types of INEEL waste for testing and/or use at the ATG plasma melter/vitrifier.”

Request Letter dated August 13, 2001, from Erik Ringelberg to Nicole Brooks, Freedom of Information Officer, DOE-ID (Request Letter). Mr. Ringelberg was specifically interested in documents to assist the public in understanding the relationship between DOE and its contractor, and to better the public’s understanding of what may happen with waste and its treatment in relation to the melter/vitrifier. Id.

On September 18, 2001, DOE-ID e-mailed Mr. Ringelberg and advised him they were working on his requests. E-mail dated September 18, 2001, from Ms. Brooks to Mr. Ringelberg (E-mail Reply to Requests). Ms. Brooks estimated to KYNF that DOE-ID would have a response to their requests on approximately November 9, 2001. Id.

On November 26, 2001, DOE-ID provided KYNF with five responsive documents in response to Requests 1, 3, 4, 5, and 6, but indicated they had found no responsive documents for Request 2. Determination Letter dated November 26, 2001, from Ms. Brooks to Mr. Ringleberg (Determination Letter).

In response to the Determination Letter from DOE-ID, Mr. Ringelberg filed this Appeal, saying he wanted to obtain a precise determination of why DOE-ID denied elements of his original request, and to request a further and in-depth examination of DOE and DOE contractor files. Appeal Letter dated December 12, 2001, from Mr. Ringelberg to the Director of OHA (Appeal Letter). In support of his Appeal, Mr. Ringelberg first questions the validity of DOE-ID’s determination because DOE-ID provided its response past the statutory deadline. Id. He also states he believes the response provided to KYNF was incomplete. Id. Mr. Ringelberg argues that the documents provided in response to Request 1 contained only particular pages of what was requested, with no explanation as to why the entire document was not provided. Id. Regarding Request 2, Mr. Ringelberg argues that the DOE’s response was deficient because DOE-ID did not specify why responsive documents had not been found. Id. Concerning Request 3, Mr. Ringelberg states that DOE-ID provided a document entitled “Broad Spectrum Contacts Current Status, updated August 2001,” but argues that this document contains no information related to this request regarding the testing and use of INEEL waste at the ATG facility. Id. With respect to Request 4, Mr. Ringelberg argues that DOE-ID provided information regarding waste acceptance from Hanford, when KYNF was requesting information regarding waste sent to Hanford or ATG. Id.

Analysis

When an agency conducts a search under the FOIA, it must undertake a search that is “reasonably calculated to uncover all relevant documents.” Weisberg v. United States Dep’t of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983). “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). 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 response to the Appeal, we contacted DOE-ID to determine the scope of its search. Telephone Memoranda dated January 3, 2002 and January 11, 2002 (Telephone Memoranda), and E-mail Message dated January 11, 2002 (E-mail Message). DOE-ID informed us it conducted a reasonable search in all possible locations, for any documents related to the requests submitted by KYNF. (Telephone Memoranda). As an initial matter, DOE-ID stated that although it did issue its determination approximately three months after it received the request, it informed KYNF via an e- mail message dated September 18, 2001, that it was currently processing other requests filed by KYNF, and would begin the search for the current request as soon as possible. (E-Mail Message).

Although the Determination Letter does not detail DOE-ID’s search process, DOE-ID personnel thoroughly explained to us the search process involved with the six separate items in KYNF’s current request. (Telephone Memoranda). First, where KYNF asserts that it only received portions of the document “ATG Proposal Number 2000-03-010,” DOE-ID stated that it provided only the responsive portions of the document to KYNF. Id. DOE-ID stated it will provide the remaining portions of the document if KYNF so desires. Id. Secondly, DOE-ID stated that it located one document it did not provide to KYNF addressed from the State of Washington to ATG, but since this document was not generated by the DOE, nor addressed to the DOE, it should be released by the State of Washington. Id. DOE-ID stated that Mr. Ringelberg had previously indicated to them that he had filed an information request with the State of Washington for this information. Id. Thirdly, in response to KYNF’s assertion that DOE-ID provided a document entitled “Broad Spectrum Contacts Current Status, updated August 2001,” which contained no responsive information related to the testing and use of INEEL waste at the ATG facility, DOE-ID maintains the document is responsive. Moreover, it stated that they did locate other responsive documents, but these documents are intra-agency, pre-decisional recommendations and opinions of DOE employees covered under Exemption 5 of the FOIA. Id. DOE-ID indicated it would be willing to segregate the pre-decisional information from the factual information and provide the releasable information in these documents to KYNF. Id.

Finally, DOE-ID stated that after the date of KYNF’s original request, a letter was written in response to an information request from the State of Washington to DOE-ID. Id. DOE-ID stated that this letter, dated September 5, 2001, discusses information that may be responsive to KYNF’s current request. Id. DOE-ID stated that it would now provide this letter to KYNF as a summary of INEEL’s plans for having waste treated at the ATG facility. Id. DOE-ID stated that this letter was not provided to KYNF because it came into existence after KYNF’s original request. Id.

Accordingly, it appears that DOE-ID provided responsive documents in response to five of KYNF’s six requests. The only request where no documentation was provided was Request 2. In relation to this request, DOE-ID searched all of its electronic records and its hand files. We are convinced DOE- ID searched in all possible locations and conducted a reasonable search. In relation to the five other requests, we are also convinced DOE-ID conducted a reasonable search, which produced responsive material to KYNF. However, since the filing of the Appeal, DOE-ID has obtained further documentation responsive to Mr. Ringelberg’s request. DOE-ID has agreed to provide this documentation to KYNF. DOE-ID has also indicated it is willing to provide KYNF with the entire document where it had provided only the portion it believed to contain responsive information. DOE- ID has also indicated it will extract protected information from a document found to be responsive to Mr. Ringelberg’s request, and provide that document as well. Despite DOE-ID’s willingness to provide further documentation to KYNF, we find that DOE-ID previously searched all possible locations, and provided all relevant documentation to KYNF. Thus, we find the entire search to be “reasonably calculated to uncover all relevant documents.”

Nevertheless, in addition to the actions to which DOE-ID has committed to perform, it must locate and review the document addressed to ATG from the State of Washington. A document in DOE’s possession is an agency record, regardless of how it was created or obtained, and is therefore subject to disclosure under the FOIA. See 5 U.S.C. § 552(a)(3); United States Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 144-45 (1989).

It Is Therefore Ordered That:

(1) The Freedom of Information Act Appeal filed by Keep Yellowstone Nuclear Free on December 17, 2001, OHA Case Number VFA-0709, is hereby denied in part and granted to the extent set forth in Paragraph 2.

(2) This case is hereby remanded to the Department of Energy’s Idaho Operations Office to complete its processing of this request in accordance with the above Decision, and to issue a new Determination Letter.

(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 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: January 23, 2002