Case No. VFA-0076, 25 DOE ¶ 80,140

October 10, 1995

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: William H. Payne

Date of Filing: September 12, 1995

Case Number: VFA-0076

On September 12, 1995,<1> William H. Payne filed an Appeal from a Determination issued to him on August 21, 1995, by the Department of Energy (DOE) Albuquerque Operations Office (DOE-AL). In that Determination DOE-AL stated that it was unable to locate any documents responsive to a request for information filed under the FOIA, 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004. This Appeal, if granted, would require DOE-AL to conduct a further search for responsive documents.

I. Background

On July 29, 1995, Mr. Payne filed a request for copies of documents showing the employment dates and names of all retired military personnel who were hired by Sandia National Laboratories (SNL) between the dates of October 1, 1979 and July 28, 1995. See Determination Letter from Elva Barfield, FOIA Officer, Office of Public Affairs, DOE-AL (August 21, 1995) (Determination Letter). In response to the FOIA request, DOE-AL contacted the SNL which informed DOE-AL that there were no documents which identified retired military personnel working at SNL. In his Appeal, Mr. Payne argues that since SNL maintains records which list previous employment and in some instances that previous employment is military employment, some records must exist which indicate whether a person has retired from the military. See Appeal Letter from William H. Payne, to Hazel O'Leary, Secretary of Energy (September 6, 1995).

II. Analysis

The FOIA requires that documents held by federal agencies generally be released to the public upon request. Following an appropriate request, agencies are required to search their records for responsive documents. 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., Barton Kaplan, 22 DOE ¶ 80,125 (1992); Hideca Petroleum Corp., 9 DOE ¶ 80,108 (1981); Charles Varon, 6 DOE ¶ 80,118 (1980). However, in previous cases we have held that challenges to the adequacy of the agency's search must be supported by a reasoned argument that a requested document, unidentified by the agency in its search, does in fact exist. See Mark S. Boggs, 22 DOE ¶ 80,102 (1992); Sun Co. Inc., 11 DOE ¶ 80,114 (1983); Vinson & Elkins, 4 DOE ¶ 80,127 (1979).

In reviewing the Appeal, we contacted Elva Barfield, FOIA Officer, DOE-AL, to ascertain the extent of the search that had been performed and to determine whether any documents responsive to the Mr. Payne's request might exist. According to Ms. Barfield, SNL searched an employee database it maintains and was unable to locate any responsive documents. The SNL database identifies whether an employee has a military background but does not identify an employee's military status, i.e. whether an employee is retired from the military. From subsequent conversations with Ms. Barfield, we have learned that despite the fact that the database does not contain responsive documents, SNL does possess individual personnel files which identify whether a particular employee is retired from military service.

Under these circumstances, we find that this FOIA request may not have been subjected to a search sufficiently thorough and conscientious to meet the established standards of reasonableness. It appears that documentary information responsive to Mr. Payne's request does in fact exist.<2> See David Hackett, 24 DOE ¶ 80,166 (1995); Robert Heitman, 24 DOE ¶ 80,152 (1995). Accordingly, this Appeal will be remanded to DOE-AL to perform a new search for responsive documents consistent with this Opinion.

It Is Therefore Ordered That:

(1) The Appeal filed by William H. Payne, Case No. VFA-0076, on September 12, 1995, is hereby granted in part as set forth in Paragraph (2) and denied in all other respects.

(2) This matter is hereby remanded to the Department of Energy's Albuquerque Operations Office which shall conduct a new search for responsive documents in accordance with the guidance in the foregoing 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 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: October 10, 1995

<1>Mr. Payne's correspondence to the Secretary of Energy was forwarded to this Office on September 6, 1995. In reviewing the correspondence we determined that Mr. Payne was appealing a Freedom of Information Act (FOIA) Determination. However, the correspondence did not include a copy of the Determination required by this Office before it can begin processing a FOIA Appeal. See 10 C.F.R. § 1004.8(b). We received a copy of the Determination on September 12, 1995. Thus the Appeal was considered to be filed as of that date.

<2>Even though responsive information may in fact exist, at this time we express no opinion whether the document(s) are in fact agency records under the FOIA. See Sangre de Cristo Animal Protection, 25 DOE ¶ 80,121 (1995).