Case No. VFA-0084, 25 DOE ¶ 80,143
October 20, 1995
DECISION AND ORDER
OF THE DEPARTMENT OF ENERGY
Appeal
Name of Petitioner:Portland General Electric Company
Date of Filing: September 22, 1995
Case Number: VFA-0084
On September 22, 1995, Portland General Electric Company (PGE) filed an Appeal from a determination issued to it on September 11, 1995, by the Bonneville Power Administration (BPA). In that determination, BPA released one document in response to a request for information made by PGE 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. In its Appeal, PGE requests that we direct BPA to conduct an additional search for responsive documents.
The FOIA requires that documents held by federal agencies generally be released to the public upon request. Pursuant to an appropriate request, agencies are required to search their records for responsive documents. If responsive documents cannot be located, the requester must be told whether the requested record is known to have been discarded or never to have existed. 10 C.F.R. § 1004.4(d).
In its request, PGE sought documents pertaining to proposed contracts between BPA and its direct service industrial customers (DSIs) regarding the sale of electrical power. Specifically, PGE sought:
- Any and all drafts . . . of proposed power sales contracts between BPA and its direct service industrial customers.
- Any documents reflecting, evidencing or relating to a decision of Bonneville to offer or enter into the contracts referenced in (1) above.
In its determination, BPA identified and released one document in response to item 1 of PGE's request. With respect to item (2), BPA stated:
Last year BPA conducted joint customer negotiations on its proposals to offer new power sales contracts to all customers, including the . . . DSIs. PGE participated in those negotiations and received all BPA papers regarding a proposed DSI contract offer and terms. Apart from that, BPA has not yet made any decisions to offer or enter into new
contracts, therefore no records exist regarding a decision to offer or enter into the contracts.
Because it believed that PGE had already received all responsive documents, no additional documents were provided pursuant to Item 2 of the request.
PGE appeals the determination with respect to Item 2.<1> The firm states that it does not seek duplicate copies of documents that it already has, but it contends that responsive documents do exist which were not provided to it. In support of its position, PGE has identified several documents in BPA's possession that should have been provided to it pursuant to its request. It also states that it has not received copies of any correspondence between BPA and the DSIs.
We have stated on numerous occasions that an 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., Hideca Petroleum Corp., 9 DOE ¶ 80,108 (1981); Charles Varon, 6 DOE ¶ 80,118 (1980).
In reviewing this Appeal, we contacted both the person at PGE who drafted the FOIA Request and one of the individuals at BPA who was involved in responding to the request. Memorandum of Telephone Conversation between R. Lessner, PGE, and B. MacPherson, Office of Hearings and Appeals (October 17, 1995); Memorandum of Telephone Conversation between T. Miller, BPA, and B. MacPherson, Office of Hearings and Appeals (October 16, 1995). Based upon these conversations, it is apparent that BPA misconstrued the scope of PGE's request. Because no decision had yet been made on whether to enter into contracts with the DSIs, BPA concluded that it had no documents "reflecting, evidencing or relating to a decision . . . to offer or enter into" such contracts. However, PGE intended its request to include, inter alia, documents that would be relevant to BPA's future decision on such contracts.
While BPA's construction of PGE's request is not unreasonable, the request was ambiguous. BPA should therefore have sought clarification of what information PGE desired. See 10 C.F.R. § 1004.4(c)(2). Accordingly, the present Appeal shall be granted, and the matter shall be remanded to BPA. BPA shall consult with PGE to clarify the scope of the request, and it shall conduct a new search and issue a new determination following the consultation.
It Is Therefore Ordered That:
(1) The Appeal filed by Portland General Electric Company on September 22, 1995, is hereby granted as set forth in Paragraph (2) below.
(2) This matter is remanded to the Bonneville Power Administration which shall promptly issue a new determination after consulting with the requester to clarify the scope of its request.
(3) This is a final order of the Department of Energy of which any aggrieved party may seek judicial review. 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 20, 1995
<1>PGE originally also appealed the determination with respect to Item 1. The firm
contended that the search must have been inadequate because only one draft contract was provided, while draft contracts with a number of firms appeared to exist. In the course of processing this Appeal, PGE was informed that although there were a number of draft contracts, the contracts were identical except for the name and other information identifying the customer. PGE indicated that if this had been explained in the determination, it would not have appealed Item 1, and it withdrew its Appeal with respect to this Item. Memorandum of Telephone Conversation between R. Lessner, PGE, and B. MacPherson, Office of Hearings and Appeals (October 17, 1995).