Exemption 10

19 months and counting: The saga of an Energy Department FOIA request

Posted: April 21, 2011 | Tags: Energy Department, FOIA, Freedom of Information, Office of Government Information Services, OGIS, USEC

When we launched Exemption 10, we announced plans to publish FOIA case studies from journalists and others outside the Investigative Reporting Workshop. Today, we have the first of those, written by Sam Tranum, a Washington-based reporter for Nuclear Intelligence Weekly, who is in a long-running battle with the Energy Department to get documents relating to a $2 billion federal loan guarantee request. Tranum covers uranium markets, nuclear energy and proliferation issues. Nuclear Intelligence Weekly, one of several subscription-only newsletters published by the Energy Intelligence Group, covers the nuclear business, energy politics and proliferation issues from offices in Washington and London.

If you have a FOIA story you would like us to tell, please contact us.

Despite President Obama's professed commitment to “creating an unprecedented level of openness in government,” I've been waiting 20 months for the Department of Energy to turn over documents I requested under the Freedom of Information Act that I hope would shed light on whether a $2 billion loan guarantee the department is considering giving to a private company would produce a hi-tech new uranium enrichment plant in Ohio or a $2 billion debacle for taxpayers.

By law, the Energy Department should have turned over the documents to me more than 19 months ago. When I asked my contact at the agency, Hirsh Kravitz, about the status of my request in January, he told me, “Hopefully, we can get this to you soon” and “It is currently with another agency.” He wouldn't tell me which agency was reviewing my request. But three months later there still has been no word.

Meanwhile, Energy continues to review Bethesda-based USEC Inc.'s application for a $2 billion loan guarantee to help it finance its American Centrifuge Plant, which is under construction in southern Ohio. The federal government has been reviewing the politically charged application for years. In late July 2009, it told USEC the project wasn’t ready and urged it to withdraw its loan guarantee application. But, under political pressure, the agency quickly flip-flopped and now continues to review the application. USEC reported in February that it was making “solid progress” toward winning a conditional loan guarantee.  

Why exactly did the department ask USEC to withdraw its application? Why did it then change its mind? And, above all, would the centrifuge plant be a good investment, or is it likely to fail, leaving taxpayers responsible for paying off a $2 billion loan? Because neither the Energy Department nor USEC would provide specifics when I asked for them, I submitted a FOIA request on Aug. 3, 2009, via the department's website.

After about nine months (on April 20, 2010), Energy turned over an 88-page engineering report on the plant's technical readiness, but most of the content had been blacked out so it was virtually useless. After about 14 months (on Sept. 3, 2010), the DOE turned over 232 pages of emails between the DOE and USEC, which were useful because they were only slightly redacted. So I published much of the information they contained in Nuclear Intelligence Weekly, the trade publication I write for. I have yet to receive the remaining batch of documents, including correspondence among top Energy Department and White House officials about USEC's loan guarantee application.

Along the way, as I became more frustrated, I filed a complaint with the Energy Department Inspector General. I never received a response, but in September 2010, the Inspector General issued a special report on the agency’s FOIA response process, noting that during fiscal year 2009 “the average time to fulfill FOIA requests at [DOE] Headquarters was 83 days — well above the statutorily required 20-day response period.” This report was triggered by a request from Rep. Darrell Issa, R-Calif., and Sen. Charles Grassley, R-Iowa, as part of an inquiry into the politicization of FOIA processing.

What reason did Energy FOIA workers give the inspector general for failing to follow the law?

“Program officials told us, and based on our experience it is reasonable to conclude, that the complexity and volume of records requested can lead to increased response times,” the report found. So the department fails to follow the law because it’s hard to follow the law. And the Inspector General didn’t call for major changes in the department’s FOIA processing, confining itself to suggesting that “improvements in electronic request processing, policy and procedures, and fee determination could help reduce processing times.”

In January 2011, I still had not received the remaining documents, so I contacted Kravitz again, and he brushed me off again. This led me to track down a couple of FOIA experts for advice.

I learned that after Energy failed to respond to my FOIA request within 20 days, I had 30 days to appeal. Since that time had long passed, my advisers suggested I file a new request for the documents I have not yet received. Then I could wait 21 days and file an appeal. I also learned that the Office of Government Information Services, which is part of the National Archives, acts as the FOIA ombudsman for the federal government, stepping in to help mediate in disputes over FOIA requests.

I filed a new FOIA request for my missing documents. But the response on Feb. 2 pointed out that I had already submitted the same request back in 2009. “...[W]e continue to process the parts of the request for the documents described above. Responsive documents have been identified and are being reviewed to determine releasability. Every effort is being made to provide you a response as soon as possible.” No luck there: Because the agency didn't accept my request, the appeals clock didn't restart.

In addition to my failed new FOIA, I contacted the Office of Government Information Services, asking for help in prying the documents loose from the DOE. In response, I received a letter and a soothing phone call. Then the office of information services contacted Energy and determined that the department was not going to release the documents any time soon (or even reveal which agency had them), but reassured me that information services' very involvement might speed things up a little. 

Finally, I submitted another new FOIA request: this time for all the internal Energy Department correspondence about fulfilling my USEC FOIA. That way, at least I can learn — and publish — whether the DOE has all this time been working hard to get me these documents, or trying to conceal them from me.

So now I'm waiting. There's not much else I can do. Meanwhile, the department is still considering USEC's application and may well decide whether to grant the $2 billion loan guarantee before it ever releases these documents to me and I can determine the merits of USEC's application.

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