Case No. VFA-0233, 26 DOE ¶ 80,135

November 20, 1996

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Glen M. Jameson

Date of Filing: October 22, 1996

Case Number: VFA-0233

On October 22, 1996, Glen M. Jameson filed an Appeal from a determination dated April 22, 1996 (but not received by him until October 1996), by the Freedom of Information Act/Privacy Act Officer of the Rocky Flats Office (FOIA Officer) of the Department of Energy (DOE). In that determination, the FOIA Officer denied a request for information filed by Mr. Jameson on November 21, 1995, 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 his request for information, Mr. Jameson sought copies of the invoices for pension plan costs attributable to Scientific Applications International Corporation (SAIC) employees working at the Rocky Flats Field Office for a twelve-month period ending with the most recent and available invoices submitted by SAIC. In an April 22, 1996 letter, the FOIA Officer informed Mr. Jameson that her search revealed "no specific invoice line item pension costs." In addition, the FOIA Officer stated that SAIC "invoices pension costs" as part of its indirect rates and that the

DOE Rocky Flats Field Office does not have knowledge of SAIC's rates for pension costs. Finally, the FOIA Officer advised Mr. Jameson to contact the Defense Contract Audit Agency (DCAA), an office that is a part of the Department of Defense, and thus, subject to the FOIA. Specifically, the FOIA Officer believes that DCAA, as the auditor of the contract, may have responsive information.

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 his Appeal, Mr. Jameson did not provide any evidence that responsive information exists. Mr. Jameson only speculates that responsive information exists in the form of: (1) the underlying contract that defined what overhead charges were allowable; (2) the actual invoices for overhead charges and credits; or (3) the copies of audits that DCAA may have provided to the DOE. Accordingly, we contacted the Rocky Flats Office to ascertain the validity of Mr. Jameson's contention.(1) Officials at the Rocky Flats Office informed us that: (1) the underlying contract does not have information concerning pension plan costs attributable to SAIC employees; (2) the DOE does not have any actual invoices for overhead charges and credits; and (3) audits provided by DCAA to Rocky Flats do not contain any responsive information.

A Rocky Flats Official informed us that the underlying contract does not have responsive information because pension plan costs are only a small portion of a much larger "indirect" rate in the contract. The FOIA Officer has informed us that she has forwarded a copy of Mr. Jameson's request to the DCAA, but that Mr. Jameson should make a new FOIA request directly to the DCAA to ensure that they will respond directly to him. Since we find that the FOIA Officer searched all of the areas that might have reasonably contained responsive information, including those areas suggested by Mr. Jameson, and she has verified that no responsive documents exist, we must deny this Appeal.

It Is Therefore Ordered That:

(1) The Appeal filed by Glen M. Jameson on October 22, 1996, Case Number VFA- 0233, is hereby denied.

(2) 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 20, 1996

(1) */ See memoranda of telephone conversations between Leonard M. Tao, Office of Hearings and Appeals Staff Attorney, and various Rocky Flats Office personnel (Case No. VFA-0233).