Case No. TFA-0003

December 19, 2002

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Steven C. Vigg

Date of Filing: November 26, 2002

Case Number: TFA-0003

On November 26, 2002, Mr. Steven C. Vigg filed an Appeal from a determination issued to him by the Department of Energy’s (DOE) Bonneville Power Administration (BPA). The BPA issued this determination in response to a request that Mr. Vigg filed with the Department of Justice. In this determination, the Bonneville Power Administration released some responsive documents to Mr. Vigg but withheld others from him. The Appeal, if granted, would require that the information that the BPA withheld be released in full.

I. Background

Mr. Vigg filed a request in which he sought access to all information concerning allegations of misconduct against him by the BPA, allegations that were later determined by the Department of Justice (DOJ) to “lack prosecutive merit.” Mr. Vigg filed his Freedom of Information Request with the Department of Justice. The DOJ located responsive documents and referred them to the DOE for its review. The DOE Headquarters FOIA/Privacy Act Group in turn forwarded the documents to the BPA. On October 8, 2002, the BPA issued a determination which provided Mr. Vigg with copies of some of the documents the DOJ provided. The BPA withheld a number of documents, finding that the information it was withholding was encompassed by Exemptions 5 and 7 of the FOIA.

In addition to the documents it received from the DOJ, the BPA also reviewed Mr. Vigg’s Official Personnel File, and informed him that no additional documents responsive to his request were found in it.

II. Analysis

A. Adequacy of the Determination

After conducting a search for responsive documents under the FOIA, the statute requires that the agency provide the requester with a written determination notifying the requester of the results of that search and, if applicable, of the agency’s intentions to withhold any of the responsive information under one or more of the nine statutory exemptions to the FOIA. 5 U.S.C. § 552(a)(6)(A)(i). The statute further requires that the agency provide the requester with an opportunity to appeal any adverse determination. Id.

The written determination letter serves to inform the requester of the results of the agency’s search for responsive documents and of any withholdings that the agency intends to make. In doing so, the determination letter allows the requester to decide whether the agency’s response to its request was adequate and proper and provides this office with a record upon which to base its consideration of an administrative appeal.

It therefore follows that the agency has an obligation to ensure that its determination letters: (1) adequately describe the results of searches; (2) clearly indicate which information was withheld, and (3) specify the exemption(s) under which information was withheld. Research Information Services, Inc., 26 DOE ¶ 80, 139 (1996); Burlin McKinney, 25 DOE ¶ 80,205 at 80,767 (1996). Without an adequately informative determination letter, the requester and the review authority must speculate about the appropriateness of the agency’s determinations. Id.

In our review, we note that the October 8 Determination Letter failed to identify each responsive document that the BPA withheld. As discussed above, the BPA has an obligation to describe each document or portion of document withheld and the grounds for withholding it in a manner sufficient to allow the requester, and the reviewing authority, to understand the rationale for withholding the information. Because this was not done, Mr. Vigg cannot formulate an appeal concerning the documents withheld under Exemptions 5 and 7(C), nor can the OHA rule on the appropriateness of application of those exemptions to the withheld documents.

We also note that the BPA apparently did not attempt to segregate and release portions of the withheld documents that do not contain information of the types protected under the claimed exemptions. The FOIA requires the agency to provide to the requester any reasonably segregable portion of a record after deletion of the portions that are exempt. See 5 U.S.C. § 552(b). See also FAS Engineering Inc., 27 DOE ¶ 80,131 (1998), quoting Soucie v. David, 448 F.2d 1067, 1077 (D.C. Cir. 1971) (factual material must be disclosed unless inextricably intertwined with exempt material). The determination letter did not identify any segregable, non-exempt factual material, or state that no such information existed.

Consequently, we will remand this matter to the BPA. On remand, the BPA should attempt to segregate and release any portions of the relevant documents to which the claimed exemptions may not be applied. If any information is withheld, it must be described and its withholding must be justified as discussed above.

B. Adequacy of Search

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., David G. Swanson, 27 DOE ¶ 80,178 (1999); Butler, Vines and Babb, P.L.L.C., 25 DOE ¶ 80,152 (1995). In cases such as these, “[t]he issue is not whether any further responsive documents might conceivably exist but rather whether the government’s search for responsive documents was inadequate.” Perry v. Block, 684 F.2d 121, 128 (D.C. Cir. 1982) (emphasis in original).

To determine whether an agency’s search was adequate, we must examine its actions under a “standard of reasonableness.” McGehee v. CIA, 697 F.2d 1095, 1100-01, modified in part on rehearing, 711 F.2d 1076 (D.C. Cir. 1983). This standard “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, 1384-95 (8th Cir. 1985). Furthermore, the determination of whether a search was reasonable is “dependent upon the circumstances of the case.” Founding Church of Scientology v. National Security Agency, 610 F.2d 824 (D.C. Cir. 1979).

In reviewing the present Appeal, we contacted officials at BPA to ascertain the extent of the search that had been performed and to determine whether any additional documents existed that were responsive to Mr. Vigg’s request. We were informed of the following. Upon receiving Mr. Vigg’s request for information, Mr. Michael R. Sparks, Manager of Internal Audit at BPA, contacted the BPA’s Office of General Counsel. Upon reviewing the documents submitted by the DOJ, Mr. Sparks determined that the only BPA Internal Audit Staff member who had worked on a 1996 investigation concerning the allegations Mr. Vigg named in his request was David Mattson.

The BPA then contacted Mr. Mattson, a BPA Auditor, who reported that he no longer had any files related to this FOIA request because he had disposed of them long ago. Mr. Mattson confirmed that everything he had developed during his 1996 investigation was contained in the Department of Justice package that was forwarded to the BPA office. Mr. Mattson also informed the BPA that no other files existed within the Internal Audit Office that related to this FOIA request.

Mr. Sparks then had the BPA’s Office of General Counsel (OGC) review Mr. Vigg’s OPF file. The OGC staff determined that the OPF file contained no responsive documents.

Based on this explanation of the search performed, we conclude that the BPA’s search for documents responsive to Mr. Vigg’s request met the “standard of reasonableness” established in the case law. Accordingly, we will deny the portion of Mr. Vigg’s appeal that challenges the adequacy of the BPA’s search.

It Is Therefore Ordered That:

(1) The Appeal filed on November 26, 2002 by Steven C. Vigg, OHA Case No. TFA-0003, is hereby granted except as set forth in paragraph (2) below, and denied in all other respects.

(2) This matter is hereby remanded to the BPA for segregation and release of any portions of those responsive documents that the BPA withheld in its October 8, 2002 determination. If the BPA determines that any information must continue to be withheld, it must provide adequate descriptions of all such information in accordance with 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 provisions of 5 U.S.C. § 552(a)(4)(B). Judicial review may be sought in the district in which the requester reside 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: December 19, 2002