Case No. VFA-0759

August 9, 2002

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Rocky Mountain Peace & Justice Center

Date of Filing: July 12, 2002

Case Number: VFA-0759

On July 12, 2002, Rocky Mountain Peace & Justice Center (the Appellant) filed an Appeal from a final determination that the Rocky Flats Field Office (Rocky Flats) of the Department of Energy (DOE) issued on June, 24, 2002. That determination concerned a request for information the Appellant submitted 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. Six documents were located and released to the Appellant in response to its request. In its Appeal, the Appellant asserts that Rocky Flats’ search for records was inadequate because it failed to uncover additional responsive documents. If granted, this Appeal would require Rocky Flats to conduct a further search.

Background

On June 15, 2001, the Appellant requested information related to “the decision to use the wildlife refuge worker scenario to calculate the radio nuclide soil action levels” for Rocky Flats. The Appellant wanted to know who initially proposed the scenario, who commented on it prior to its approval, and who approved the scenario. Request Letter dated June 15, 2001, from LeRoy Moore, Appellant, to Mary Hammack, FOIA Officer, Rocky Flats (Request Letter). On February 14, 2002, Rocky Flats released six documents to the Appellant. Letter dated February 14, 2002, from Mary Hammack to LeRoy Moore.(1) On June 24, 2002, Rocky Flats issued a determination finding no additional responsive documents, except one which originated with the Colorado Department of Public Health and Environment (CDPHE). Determination Letter dated June 24, 2002, from Mary Hammack to LeRoy Moore. In the June 24, 2002 Determination Letter, Rocky Flats attempted to provide the Appellant with

sufficient information about the document so that he could determine whether it had received the document from CDPHE or not. Memorandum of July 29, 2002 Telephone Conversation between Janet R. H. Fishman, Attorney-Examiner, OHA, and Mary Hammack (July 29, 2002 Memorandum). In its Appeal, the Appellant asks that another search be completed. Appeal Letter at 2. The Appellant does not suggest where Rocky Flats could look further that might uncover the information but merely requests an additional search.

Analysis

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) (Miller); 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).

We contacted Rocky Flats to determine what type of search was conducted for documents responsive to the request. Rocky Flats informed us that it searched both the Rocky Flats Field Office administrative records and Kaiser Hill Company, L.L.C. (Kaiser-Hill) records. Included in the Rocky Flats administrative records are those of Mr. Legare, the person from whom the Appellant learned that the wildlife refuge worker scenario would be used; the Environment and Stewardship department; the Records and Management department; and Alpha Trac, the support service contractor. Rocky Flats conducted an initial computerized search. July 29, 2002 Telephone Memorandum. Some documents were identified by the computerized search as possibly responsive to the Appellant’s request. Id. These documents were then examined to determine if they were in fact responsive. Id. Only the six documents released in February 2002 and one possibly responsive document were located. The one document originated with CDPHE. June 24, 2002 Determination Letter. Likewise, the Kaiser-Hill Records Management and Environmental Media Management Departments files were searched by computer, and all identified documents were determined not to be responsive to the request. Electronic Mail Message from Mary Hammack to Janet Fishman July 31, 2002.

With regard to the document which originated at CDPHE, Rocky Flats believes either that the Appellant has already received it from CDPHE or that CDPHE has the responsibility for releasing the document to the Appellant. We disagree. If CDPHE was a federal agency and subject to the FOIA, Rocky Flats could send the document to it for a determination whether it should be released or not. However, CDPHE is not a federal agency, but a state agency and therefore not subject to the FOIA. The document is in the possession and control of Rocky Flats and therefore subject to the FOIA. David B. McCoy, Case No. VFA-0707, 28 DOE ¶ 80,204 (2002). Therefore, we are going to remand the matter to Rocky Flats for a new determination either releasing the CDPHE document or justifying its withholding.

Notwithstanding the remand, we are convinced that Rocky Flats followed procedures which were reasonably calculated to uncover the material the Appellant sought in its request. See Miller, 779 F.2d at 1384-85. The search did uncover seven total documents. The fact that the search did not uncover the documents that the Appellant believes may be in the possession of the DOE does not mean that the search was inadequate. Rocky Flats searched both its records and those of Kaiser-Hill Company, L.L.C. Documents identified as possibly responsive were reviewed by responsible officials. Only seven responsive records were located. Therefore, we will deny the Appellant’s Appeal in part and grant the Appeal in part. We will remand the matter to Rocky Flats for a new determination on the document which originated with CDPHE.

It Is Therefore Ordered That:

(1) The Appeal filed on July 12, 2002, by Rocky Mountain Peace & Justice Center, Case No. VFA-0759, is hereby is hereby granted as specified in Paragraph (2) below, and is denied in all other respects.

(2) This matter is hereby remanded to the Rocky Flats Field Office of the Department of Energy which shall issue a new determination in accordance with the instructions set forth in the above Decision.

(3) This is a final Order of the Department of Energy from which any aggrieved party may seek judicial review pursuant to the provision of 5 U.S.C. § 552(a)(4)(B). Judicial review may be sought in the district where 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: August 9, 2002

(1)The Appellant filed an Appeal from the February 14, 2002 letter on March 4, 2002, with the Office of Hearings and Appeals (OHA) of the DOE. Letter dated March 4, 2002, from LeRoy Moore to Director, OHA, DOE. On April 10, 2002, that Appeal was dismissed because no appealable determination had yet been issued. Dismissal Letter dated April 10, 2002, from Thomas O. Mann, Deputy Director, OHA, to LeRoy Moore.