Case No. VFA-0222, 26 DOE ¶ 80,134

November 18, 1996

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Energy Market & Policy Analysis, Inc.

Date of Filing: October 18, 1996

Case Number: VFA-0222

On October 18, 1996, Energy Market & Policy Analysis, Inc. filed an Appeal from a determination issued to it on October 9, 1996, by the Principal Deputy Assistant Secretary for Energy Efficiency & Renewable Energy of the Department of Energy (DOE). In that determination, the Principal Deputy Assistant Secretary granted a request for information filed by Energy Market & Policy Analysis, Inc. on June 29, 1996, under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004.

The FOIA requires that federal agencies generally release documents to the public upon request. The FOIA, however, lists nine exemptions that set forth the types of information that may be withheld at the discretion of an agency. 5 U.S.C. § 552(b); 10 C.F.R. § 1004.10(b). The DOE regulations further provide that the DOE release to the public a document exempt from mandatory disclosure under the FOIA whenever the DOE determines that disclosure is in the public interest and not contrary to other laws. 10 C.F.R. § 1004.1.

I. Background

In its request for information, Energy Market & Policy Analysis, Inc. sought copies of

documents containing information used in calculating the estimates of energy savings, cost savings, pollution prevention, and job creation claimed by the Department in "Budget-in-Brief Fiscal Year 1997," published by the DOE's Office of Energy Efficiency & Renewable Energy, and in pages 249-251 of Volume 4 of "FY 1997 Congressional Budget Request," DOE/CR-0037, March 1996. On October 9, 1996 the Principal Deputy Assistant Secretary released four documents: (1) an explanatory note that summarized Energy Efficiency's method of program benefits estimation; (2) the final report of the peer review process for the FY 1997 budget estimates; (3) documentation of the IDEAS model; and (4) a description of the AMIGA model.

The last two items are models used to derive integrated estimates underlying the budget projection.

In its Appeal, Energy Market & Policy Analysis, Inc. argues that the information it received on October 9, 1996 is not all of the information responsive to its FOIA request. Specifically, Energy Market & Policy Analysis, Inc. states that additional information must exist to backup the calculations outlined in the budget documents. It believes the documents Energy Efficiency provided to it could not have been the only documents used to supply the inputs to the models.

II. Analysis

The FOIA requires that federal agencies generally release documents to the public upon request. Following an appropriate request, the FOIA requires agencies 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 adequate, 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).

In reviewing the Appeal, we contacted Energy Efficiency to ascertain the validity of Energy Market & Policy Analysis, Inc.'s contention that other responsive documents must exist.(1) An official at Energy Efficiency informed us that additional reports directly responsive to the Energy Market and Policy Analysis, Inc. request do not exist. However, the same official informed us that additional responsive information probably exists in widely scattered memos, files and communications in the hands of numerous individual program managers and their contractors. The Energy Efficiency official estimated the cost of searching for additional responsive material to be in the range of $60,000 to $70,000. Moreover, the Energy Efficiency official stated that it would require at least two months to search for all of the responsive material.

Since the Energy Efficiency official has confirmed it is likely that additional responsive documents exist, we must remand the case to the Principal Deputy Assistant Secretary for a search of the individual program managers' files, memos and communications, subject to a fee agreement between the DOE FOIA Office and Energy Market & Policy Analysis, Inc. We note that Energy Efficiency has indicated to us its willingness to confer with Energy Market & Policy Analysis, Inc. to reformulate the scope of its request to reduce the estimated costs of the DOE's response on remand. C.f. 10 C.F.R. § 1004.4(c)(2) (DOE should offer assistance in reformulating a non-conforming request).

It Is Therefore Ordered That:

(1) The Appeal filed by Energy Market & Policy Analysis, Inc. on October 18, 1996, Case Number VFA-0222, is hereby granted as set forth in paragraph (2) below, and is denied in all other respects.

(2) This matter is hereby remanded to the Principal Deputy Assistant Secretary for Energy Efficiency & Renewable Energy of the Department of Energy for a search of individual program managers' files, memos and communications for any documents responsive to the Freedom of Information Act request filed by Energy Market & Policy Analysis, Inc. on October 18, 1996, or as subsequently modified, subject to a fee agreement between the Department of Energy Freedom of Information Act Office and Energy Market & Policy Analysis, Inc.

(3) This is a final Order of the Department of Energy of 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 where 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: November 18, 1996

(1) */ See memoranda of telephone conversations between Leonard M. Tao, Office of Hearings and Appeals Staff Attorney, and various Energy Efficiency personnel (Case No. VFA- 0222).