1. This is an action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, as amended, for injunctive and other appropriate relief and seeking the disclosure and release of agency records improperly withheld from Plaintiff David B. McCoy’s (“McCoy”) by Defendant United States Department of Energy (“DOE”). DOE has refused since August 2002, to provide a single responsive record relating to the FOIA request for information regarding a Mission Change at the Idaho National Engineering and Environmental Laboratory (“INEEL”).

2. The records at issue are relevant to informing the public about an INEEL Mission Change made for the purpose of developing commercial nuclear reactors at INEEL, other DOE sites and existing commercial locations.

3. The records are relevant to informing the public as to whether the INEEL Mission Change considered environmental matters under the National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. §§ 4331 et seq., prior to making the Mission Change at INEEL.

4. The records are relevant to informing the public as to whether the INEEL Mission Change qualified for an administrative change under provisions of 10 C.F.R. 1021 Appendix A and B so as to exempt the INEEL Mission Change decision from meeting the requirements of the NEPA.

5. The records sought by FOIA requests are relevant to making known to the public the dangers, risks and alternatives which may exist for the construction of nuclear power plants at INEEL and so that the public may participate in an informed and meaningful way in such a decision.

6. The DOE’s conduct in this case amounts to a constructive denial of McCoy’s August 8, 2002 FOIA request and a constructive denial of McCoy’s rights to an administrative appeal of that denial.

7. The DOE’s arbitrary and capricious conduct with respect to its FOIA obligations frustrates McCoy’s efforts to educate the public regarding the DOE activities associated with the INEEL Mission Change.

8. With this action, McCoy seeks a court order that declares the DOE’s untimely response to the FOIA request at issue to be contrary to the requirements of the FOIA and that mandates the DOE to produce immediately the documents sought in the August 8, 2002 FOIA request. Additionally, McCoy seeks a declaratory judgement obligating the DOE to respond to future FOIA requests in a timely fashion.

JURISDICTION

9. This case arises under the Freedom of Information Act, 5 U.S.C. Sec. 552, and the Administrative Procedures Act, 5 U.S.C. Sec. 706. This Court has both subject matter jurisdiction over this action and personal jurisdiction over the parties pursuant to 5 U.S.C. § 552(a)(4)(B) (Freedom of Information Act), 28 U.S.C. § 1331 (action arising under the laws of the United States) and 28 U.S.C. § 1361 (mandamus). Venue lies in this district under 5 U.S.C. § 552(a)(4)(B).

PARTIES

10. Plaintiff David B. McCoy (“McCoy”) is a resident of Idaho Falls, Idaho living downwind of DOE’s INEEL and its radioactive and other toxic chemical releases.

11. McCoy is and has been active in providing and disseminating information from DOE FOIA requests to the public, public interest environmental organizations and public interest attorneys.

12. McCoy has published numerous articles regarding the failure of the Department of Energy (“DOE”) to obtain Resource Conservation and Recovery Act (“RCRA”) permits for operations at INEEL facilities, the inherent dangers of operations and DOE withholding of information from the public.

13. McCoy has been interviewed and quoted for numerous public press articles regarding nuclear waste facilities and operations at INEEL.

14. McCoy has filed numerous administrative actions now pending before the Region 10 Environmental Protection Agency (“EPA”), the EPA Inspector General (“EPA IG”), the Idaho Department of Environmental Quality (“IDEQ”) and the DOE regarding the hazardous waste processing operations which lack permits under the Resource Conservation and Recovery Act and the hazards associated with the toxic effluent from INEEL facilities.

15. McCoy has numerous articles published on the Internet websites for environmental organizations which address hazardous waste management operations, environmental and terror issues associated with INEEL.

16. Two DOE Office of Hearings and Appeals administrative decisions regarding prior FOIA requests by McCoy to the DOE are published on the Internet at http://www.oha.doe.gov/cases/foia/vfa0681.htm and http://www.oha.doe.gov/cases/foia/vfa0707.htm

17. McCoy has provided written public comments and appeared and spoken at public hearings regarding nuclear waste management.

18. McCoy has formerly intervened before the Nuclear Regulatory Commission on nuclear spent fuel storage issues.

19. Defendant Department of Energy is an Executive Branch Department which manages the INEEL environmental cleanup mission and recently (July 2002) announced a Mission Change related to development of nuclear power reactors at INEEL and has possession or control of the records which plaintiff seeks in this action. DOE is responsible for administering and overseeing the contracts between the United States and the various contractors that operate the DOE’s national laboratory facilities. Under the DOE’s contract with the operators of the national facilities, all records generated at national laboratory facilities are deemed to be agency records under the control and authority of the DOE, with the limited exception of personnel and other similar records. The DOE is therefore responsible for responding to FOIA requests that seek documents generated at and/or maintained at the DOE’s national laboratory facilities.

STATUTORY FRAMEWORK AND FACTS GIVING

RISE TO CAUSE OF ACTION

THE FREEDOM OF INFORMATION ACT

20. The Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, as amended, requires agencies of the federal government to release upon request, information to the public, unless one of nine specific statutory exemptions applies.

21. Upon receiving a FOIA request, an agency has twenty working days to respond. 5 U.S.C. § 552(a)(6)(A). Although the agency may grant itself an extension of ten additional days in “unusual circumstances,” the FOIA does not permit an agency to delay a response indefinitely. 5 U.S.C. § 552(a)(6)(B).

22. 10 C.F.R. § 1004.5 (d)(4) requires that “[w]hen no determination can be made within the applicable time period,” DOE will “inform the requestor of the reason for the delay [and] the date on which a determination may be expected to be made.”

23. 10 C.F.R. § 1004.5(d) is a DOE FOIA regulation requiring notice “in writing” of any unusual circumstances requiring a delayed response.

24. Under the FOIA, a requestor is entitled to a waiver of fees associated with responding to a request when the information sought “is likely to contribute significantly to public understanding of the operations or activities of the government ...” 5 U.S.C. § 552(a)(4)(A)(iii).

FACTUAL BACKGROUND

25. On July 15, 2002, The Department of Energy, according to the Post Register newspaper of Idaho Falls, announced that the Idaho National Engineering and Environmental Laboratory (INEEL) would change its mission from environmental cleanup to “become the country’s flagship lab for the development of nuclear energy.” DOE Spencer Abraham pledged $5 million toward the goal of INEEL leading the way to development of nuclear energy.

26. On 8/06/02 McCoy obtained information by E-mail from JMR, a DOE employee, that no Environmental Impact Statement exists for the proposed Generation IV [nuclear reactors] of the INEEL mission.

27. McCoy obtained information on 9/25/02 by telephone from Brad Bugger, a DOE employee, that no Environmental Impact Statement exists for the proposed INEEL mission.

28. McCoy filed a 8/8/02 FOIA with the intent to bring to the attention of the public the failure of the DOE to observe federal environmental law prior to expenditure of millions of tax dollars for what may well prove to be a mission associated with projects that are wasteful, environmentally damaging, and for research or projects that may be duplicative or for which reasonable alternative locations or facilities currently may exist or become available.

29. In August 8, 2002, McCoy filed a Freedom of Information Act (“FOIA”) request for information about the July 2002 Mission Change for the INEEL. The request asked DOE for:

a. Provide copies of any written or electronic documents which are related to the policy or decision to change the INEEL mission from environmental cleanup to the development of nuclear energy.

b. Provide copies of any written or electronic documents of any (1) interagency or (2) intra-agency agreements for the mission change.

c. Provide copies of any written or electronic documents, including but not limited to, copies of calendars for dates and agendas for all formal or informal meetings between the Department of Energy (DOE) and any other persons or entities regarding the mission change and any of its aspects.

d. Provide copies of any written or electronic documents, notes, minutes taken or made during or subsequent to meetings of the Department of Energy by DOE personnel or forwarded to DOE by any other persons or entities regarding the mission change and any of its aspects.

e. Provide copies of any written or electronic documents between DOE and any contractors regarding (1) contracts or (2) the mission change and any of its aspects.

f. Provide copies of any written or electronic documents from any other DOE facilities which consider the research, development or conduct of projects at any other DOE sites to accomplish the goal which has been decided to be awarded to the INEEL.

g. Describe how the INEEL will undertake research, development or conduct of projects that will differ from those contemplated for the INEEL mission.

h. Provide copies of any written or electronic documents from any other DOE facilities which sought to be awarded the mission that has been decided for INEEL.

i. Provide copies of any written or electronic documents that show the (1) parameters and (2) selection process used to determine which DOE site would gain the mission which has been awarded to INEEL.

j. Provide copies of any written or electronic documents which indicate the types of nuclear development contemplated for the INEEL, including, but not limited to: (1) the types and numbers of facilities, (2) where the facilities will be placed, (3) the use of the facilities, (4) the environmental impacts of each of the facilities, (5) possible alternative locations instead of at INEEL for the facilities, (6) the alternative non-nuclear facilities and (7) the advanced fuels under consideration.

k. Provide copies of any written or electronic documents, including but not limited to, checks and invoices, which indicate any (1) budget requests, (2) commitments or (3) expenditures which have been authorized or made for the mission change.

l. Provide copies of any written or electronic documents which (1) considered whether the mission change may be a major federal action affecting the quality of the human environment prior to the commitment of financial resources, or (2) which consider or propose to consider in the future evaluation of the proposed mission change for environmental impacts. (42 U.S.C. §4332(2)(c) ).

m. Provide copies of any written or electronic documents that indicate whether the Department of Energy intends to or does not intend to consider the environmental impacts of the policy change.

n. Provide copies of any written or electronic documents that indicate any public hearings have been provided to the public to consider the change of mission prior to the announcement of the policy decision.

o. Provide copies of any written or electronic documents that indicate whether the Department of Energy intends to or does not intend to hold public hearings prior to the expenditure of funds to accomplish the mission change.

p. Provide copies of any Federal Register Notice related to the mission change.

30. The FOIA request included a fee waiver request. McCoy stated: “I request a waiver of all fees for this request. Disclosure of the requested information to me is in the public interest because it is likely to significantly contribute to the public understanding of the operations or activities of the government, and is not in my commercial interest, nor am I a business trying to get information on industrial competitors. Although I am an attorney, I stand to make no money from the receipt or publication of the information.

The announcement of a major commitment by the DOE, a U.S. government agency, to change the mission of INEEL to one of nuclear development comes after eighteen months of meetings which received no public notice and no attention by the media. The proposed activities and operations of the DOE have been hidden from the public purview during the eighteen month period.”

31. On 9/4/02 McCoy received an August 29, 2002, letter sent by Nicole Brooks, Freedom of Information DOE-ID to Chris Morris, FOI Division which stated McCoy’s FOIA request had been sent to Mr Morris for processing at the Headquarters Office. The letter states that DOE-ID had documents in its possession which needed “predecisional review” and there may exist documents at the Office of Nuclear Energy, Science and Technology (NE) and the Office of Environmental Management (EM) and providing names for those two teams.

32. On September 10, 2002, McCoy sent a letter to both Chris Morris and Nicole Brooks objecting to “the mischaracterization of the three documents or any other documents in the ... FOIA request as falling within the ‘predecisional privilege of 5 U.S.C. 552 (b)(5) or exemption 5 of the FOIA.’ The reason for the objection to predecisional privilege is that the mission of the Idaho National Engineering and Environmental Laboratory has been changed from Environmental Management (EM) to Nuclear Energy (NE) development.” Thus, DOE could not construe the requested materials as being predecisional after the decision had in fact been made and announced. McCoy asserted that raising the predecisional exemption as “nothing less than an attempt to delay the provision of the documents.”

33. In September 2002, McCoy received a 9/17/02 letter from Abel Lopez, Director FOIA/Privacy Act Group for DOE, granting a fee waiver for McCoy’s FOIA Request F2002-00430. The 9/17/02 letter also stated that the FOIA Officer at the Idaho Operations Office had transferred the FOIA request to Headquarters after it conducted a search and identified three responsive documents which were sent to Headquarters to be reviewed for their “releasibility.”

34. McCoy has received no responsive items to his FOIA request although DOE admitted in its 9/17/02 letter that documents exist.

35. DOE did not identify any information in its possession nor state reasons why the documents should not be provided.

36. DOE has not given any indication that there are exceptional or unusual circumstances that would justify its failure to comply with the time limits for document production as set forth in FOIA.

37. Additionally, the DOE has failed to notify McCoy as to the reasons for its failure to comply with the FOIA’s statutory timeline and failed to notify McCoy as to when he can expect a formal response to his FOIA request. Both the notification of reasons and the notification of expected response date are affirmatively required by the DOE’s own FOIA regulations.

38. On 5/7/03 McCoy called Chris Morris at DOE Headquarters who had been assigned to McCoy FOIA request. McCoy left a telephonic message that FOIA request F2002-00430 was long overdue and that McCoy wanted Mr. Morris to contact him regarding the matter of the unreasonable delay. McCoy received no return phone call from Mr. Morris.

39. On 6/19/03 McCoy again called Chris Morris at DOE Headquarters and spoke with him about the long delay in providing the FOIA information. Mr. Morris said it was being worked on and that he would call McCoy the following week. McCoy received no call or other communication from Mr. Morris.

40. The DOE is not exercising due diligence in responding to McCoy August 8, 2002 FOIA request.

41. McCoy has exhausted applicable administrative remedies prior to filing this suit. Nearly one year has elapsed since McCoy’s August 8, 2000 FOIA request was received by DOE. McCoy should not be required to wait indefinitely for the provision of responsive records by DOE, especially in the absence of any written explanation or justification by DOE for a delay in providing documents related to McCoy’s FOIA request.

42. DOE has not claimed any exemption for withholding the responsive documents to the FOIA request.

43. Plaintiff has a statutory right to the records it seeks, and there is no legal basis for defendant's refusal to disclose them to him.

44. McCoy did not file an appeal with the DOE Office of Hearings and Appeals because it has informed McCoy on prior occasions that it lacks jurisdiction to consider DOE’s failure to respond to a FOIA request within the statutory time limits. Thus, an appeal to the DOE Office of Hearings and Appeals would have been a useless act.

45. McCoy has also been constructively denied the opportunity for an administrative appeal by DOE which has refused to provide the requested documents for the FOIA request and to furnish any legitimate reason for its refusal to provide responsive documents.

PLAINTIFF’S CLAIM FOR RELIEF

46. McCoy incorporates all preceding paragraphs by reference, as if fully set out herein.

47. McCoy has a statutory right, pursuant to the FOIA, to the information he seeks in his August 8, 2002 FOIA request, and the DOE’s refusal to produce the information is arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with the FOIA.

48. McCoy is injured by DOE’s disregarding the statutory time frame set out in FOIA for the production of documents. This practice is deliberate, arbitrary and capricious, an abuse of discretion and otherwise not in accordance with the FOIA.

49. DOE’s disregard of the statutory time frame set out in FOIA for the production of documents has further denied McCoy due process for administrative appeal of the constructive denial of McCoy’s FOIA request.

WHEREFORE, plaintiff prays that this Court:

(1) Declare that Defendant’s withholding of the requested records is unlawful.

(2) Order Defendant to make the requested records immediately available to Plaintiff.

(3) Declare that the DOE has a mandatory obligation to respond to all future FOIA requests within the time prescribed by statute.

(4) Award plaintiff its costs and reasonable attorney’s fees in this action (5 U.S.C. §552(a)(4)(F); and

(5) Grant such other and further relief as the Court may deem just and proper.