Case No. VFA-0232, 26 DOE ¶ 80,141

December 4, 1996

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Future Technology Intelligence Report

Date of Filing: October 22, 1996

Case Number: VFA-0232

On October 22, 1996, the Future Technology Intelligence Report (FTIR) filed an Appeal from a determination issued to it by the Deputy Manager of the Oakland Operations Office (the Deputy Manager). The Deputy Manager issued that determination in response to a request for information submitted by FTIR 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 Appeal, if granted, would require the Manager to release the requested information.

Background

In its FOIA request, FTIR requested "a copy of the report made by the DOE" concerning a demonstration conducted by Professor Yull Brown on August 6, 1992 in Ontario, California. This demonstration, which was witnessed by a team of DOE representatives, involved a means of allegedly reducing the radioactivity of certain waste materials. In the DOE's initial response, the Deputy Manager informed FTIR that no documents responsive its request could be located. In its Appeal, FTIR challenged the sufficiency of the Deputy Manager's search for responsive documents. Based on information contained in the Appeal, the Deputy Manager was able to locate responsive documents, and a copy of those documents was provided to FTIR. These documents include a report made by Mike Schoonover, an employee of the University of California, to the DOE's Office of Environmental Restoration and Waste Management, an intra-agency memorandum, and a letter from a DOE employee to a representative of the facility at which the demonstration was conducted. These documents consist of discussions of the demonstration and its results.

On November 14, 1996 FTIR submitted an amendment to its FOIA Appeal. In this submission, FTIR continues to claim that the Deputy Manager has failed to locate and identify all responsive documents. Specifically, FTIR contends that Mr. Schoonover's notes containing the measurements upon which his report was based should have been

provided. FTIR points out that although the report contains references to several measurements that were taken by Mr. Schoonover, some of these measurements are not included in the report.

Analysis

In responding to a request for information under the FOIA, it is well established that an agency must "conduct a search reasonably calculated to uncover all relevant documents."Truitt v. Department of State, 897 F.2d 540, 542 (D.C. Cir. 1990) (Truitt). "The standard of reasonableness which we apply to agency search procedures does not require absolute exhaustion of files; instead it requires a search reasonably calculated to uncover sought materials." Miller v. Department of State, 779 F.2d 1378, 1384-85 (8th Cir. 1985); accord Truitt, 897 F.2d at 542. The fact that the results of a search may not meet with the requester's expectations does not necessarily mean that the search was inadequate. Robert Hale, 25 DOE ¶ 80,101 at 80,501 (1995). Instead, in evaluating the adequacy of a search, our inquiry generally focuses on the scope of the search that was performed. See, e.g., Richard J. Levernier, 25 DOE ¶ 80,102 (1995).

In order to evaluate the scope of the search, we contacted the Oakland Office. We were informed that files belonging to each employee who might have been involved in some manner with the subject matter of FTIR's request were searched. The search included files located in the DOE's Environmental Restoration and Weapons Research Divisions, and in the Lawrence Livermore Laboratories. In letters to FTIR dated August 15 and August 16, the Oakland Office requested further information concerning the demonstration in order to conduct a more effective search. Finally, information included in FTIR's Appeal enabled the Oakland Office to identify a current DOE employee who was directly involved in sending the DOE representatives to the demonstration. This employee's files were searched, and all documents relating in any way to the demonstration were provided to FTIR. See memoranda of November 25, 1996 telephone conversations between Roseanne Pelzner and Richard Vergas, Oakland Operations Office, and Robert Palmer, OHA Staff Attorney.

Based on the record before us, we conclude that the Oakland Operations Office's search was reasonably calculated to uncover all responsive documents, and was therefore sufficient. As an initial matter, FTIR received an unredacted copy of the only document that it requested, along with two other related documents. Moreover, even if we were to assume that FTIR's request is broad enough to encompass Mr. Schoonover's notes, those notes, if they exist are the property of Mr. Schoonover and are not in the DOE's possession. The absence of measurement data cited by FTIR is not evidence of an inadequate search. We will therefore deny FTIR's Appeal.

It Is Therefore Ordered That:

(1) The Appeal filed by Future Technology Intelligence Report, Case Number VFA-0232, is hereby denied.

(2) 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 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: December 4, 1996