Case No. VFA-0178, 25 DOE ¶ 80,214

July 10, 1996

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: William H. Payne

Date of Filing: June 11, 1996

Case Number: VFA-0178

On June 11, 1996, William H. Payne filed an Appeal from a determination issued to him under the Freedom of Information Act (FOIA) on June 3, 1996, by the Department of Energy's Albuquerque Operations Office (AO). In his Appeal, Mr. Payne asserts that AO failed to provide him with all of the responsive documents in its possession regarding a Request for Information he made on November 14, 1995 (November FOIA Request).

I. Background

In the November FOIA Request, Mr. Payne requested from Sandia National Laboratory (SNL) copies of documents relating to four specified categories of information regarding various complaints he had filed while he was an employee at SNL. <1> AO, in its Determination Letter dated June 3, 1996, informed Mr. Payne that it had conducted a search of the files at SNL and at the Kirtland Area Office and that it could find no documents responsive to his request.

In his Appeal, Mr. Payne argues that responsive documents must exist regarding the categories of information he requested in his FOIA Request. Specifically, Mr. Payne asserts that in January 1992 he contacted the SNL Ombudsman regarding his allegation that he was improperly ordered to

"reverse engineer" the software for a Hirsch Scramblepad electronic lock.<2> After he was fired by his employer at SNL in July 1992, Mr. Payne discovered material he says substantiates his belief that SNL possesses documents of the type described in the November FOIA Request. He refers to an August 1993 affidavit prepared by an SNL patent attorney in which the attorney stated that reverse engineering of copyrighted software for various purposes was permissible under U.S. copyright laws. In the affidavit, the attorney cited two U.S. Court of Appeal cases decided in September and October 1992 as support for his conclusion. <3> Mr. Payne alleges that these cases declared reverse engineering of copyrighted software legal only as of September 1992, and thus the reverse engineering practices he complained of were in fact illegal at the time he submitted his complaints to SNL and at the time he was subsequently fired. He therefore maintains that, because his complaint concerned illegal practices, it is likely that SNL created and retained investigatory documents which would be responsive to his November FOIA Request.<4>

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., Hideca Petroleum Corp., 9 DOE ¶ 80,108 (1981); Charles Varon, 6 DOE ¶ 80,118 (1980). In cases such as these, "[t]he issue is not whether any further documents might conceivably exist but rather whether the government's search for responsive documents was adequate." Perry v. Block, 684 F.2d 121, 128 (D.C. Cir. 1982) (emphasis in original).

To determine whether an agency's search was reasonable, we must examine its actions under a "standard of reasonableness." McGehee v. CIA, 697 F.2d 1095,1100-01 (D.C. Cir. 1983), 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, 1384-85 (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, 834 (D.C. Cir. 1979).

As an initial matter, we decline to accept Mr. Payne's argument regarding the reason additional documents must exist. After reviewing the two cited cases in the affidavit, we find no evidence that either court opined that the software reverse engineering practices at issue were illegal prior to the court's decision. Thus, there is no indication that the practices Mr. Payne allegedly complained about were illegal or that SNL would necessarily have created investigatory documents regarding his complaint. Consequently, the assertions in the affidavit provide no evidence as to whether SNL ever possessed documents responsive to Mr. Payne's request.

We did, however, contact officials at AO to ascertain the extent of the search that had been performed. We were informed that AO undertook a search at the SNL offices and other AO facilities most likely to possess responsive documents. Specifically, AO searched the files at SNL's Staffing Organization (personnel department), Personnel Security Organization, System Research Center and the Legal Department, but found no responsive documents.<5> AO also inquired of the SNL Ombudsman who informed AO officials that he retained no records regarding Mr. Payne and does not retain any written records regarding individuals who may come to his office. Additionally, AO also searched its files at the Kirtland Area Office, the area office which supervises SNL and found no responsive documents. Given the facts presented to us, we find that AO conducted an adequate search which was reasonably calculated to discover documents responsive to Mr. Payne's November FOIA Request. Consequently, we must deny this Appeal.

It Is Therefore Ordered That:

(1) The Appeal filed by William H. Payne on June 11, 1996, is denied.

(2) This is a final Order of the Department of Energy of 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: July 10, 1996

<1>Specifically, Mr. Payne requested from SNL copies of all investigatory reports regarding his allegations that the National Security Agency attempted to sabotage a DOE/SNL cryptographic project and that he was illegally requested to "reverse engineer" the software for a Hirsch Scramblepad electronic lock. Additionally, Mr. Payne requested copies of all investigation reports relating to his complaints regarding two SNL supervisors, Preston Herrington and Thomas Wright. Mr. Payne also requested copies of all investigation reports regarding his complaints regarding a SNL manager, Tommy Sellers.

<2>In this Decision, the term "reverse engineering" refers to the practice of obtaining a copy of a copyrighted software product and then deciphering the software to ascertain the actual computer program contained in the software. For a more complete description of the process of reverse engineering of software, see the cases cited in footnote 3 infra.

<3>The two cases cited in the affidavit were Sega Enterprises Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th Cir. 1992) and Atari Games Corp. v. Nintendo of America, Inc., 975 F.2d 832 (Fed. Cir. 1992).

<4>Additionally, Mr. Payne apparently argues that AO may have responded to the wrong FOIA Request. Mr. Payne notes that the Determination Letter states that it is responding to a March 18, 1996 FOIA Request and not his November FOIA Request. The explanation provided below should clarify matters. AO informed us that Mr. Payne sent his November FOIA Request to an official at SNL but the official failed to forward the request to AO. Subsequently, Mr. Payne sent a letter dated March 18, 1996 to AO inquiring as to why he had not received a response to his November FOIA Request. In this letter, he enclosed a copy of the November FOIA Request. Subsequently, AO processed his November FOIA Request but dated the request as of March 18, 1996, the date AO received a copy of the November FOIA Request. See Memorandum of telephone conversation between Ms. Carolyn Becknell, FOIA Officer, AO, and Richard Cronin, OHA Staff Attorney (June 24, 1996).

<5>During the time Mr. Payne worked there, SNL lacked a central office to handle complaints of the type described in the November FOIA Request. See Memorandum of telephone conversation between Carolyn Becknell, FOIA Officer, AO and Richard Cronin, OHA Staff Attorney (July 1, 1996).