Case No. VFA-0237, 26 DOE ¶ 80,137

November 27, 1996

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: XXXXX

Date of Filing: October 31, 1996

Case Number: VFA-0237

On October 31, 1996, XXXXX filed an Appeal from a determination issued to him on October 4, 1996, by the Western Area Power Administration (WAPA) of the Department of Energy (DOE). That determination concerned a request for information submitted by Mr. XXXXX 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. If the present Appeal were granted, WAPA would be required to conduct a further search for responsive material.

I. Background

In his September 19, 1996 request, Mr. XXXXX, a former employee at the WAPA, sought information concerning his application for the position of electronic equipment mechanic at Brush, Colorado, part of the Loveland, Colorado, Area Office of WAPA. Mr. XXXXX claims that he was told by Mel Callen, the selecting official for the position, that all his references had reservations about Mr. XXXXX's conduct. Therefore, Mr. XXXXX requested the following information:

(1) the names of all people contacted who volunteered opinions on his possible employment;

(2) the questions they were asked;

(3) the responses and additional comments they gave;

(4) the conclusions derived from these responses and comments by the selecting official; and

(5) WAPA's official policy or guidelines for selecting officials.

Request Letter dated September 19, 1996, from XXXXX to WAPA's Freedom of Information Officer. He also maintained that his character and integrity were being

compromised to justify the hiring of non-government employees in a time of government downsizing, and he asked if WAPA was allowing this to happen. On October 4, 1996, WAPA issued its determination, releasing documents responsive to the fifth item in Mr. XXXXX's request. WAPA also stated that no documents responsive to items 1 through 4 were found and that it is not required to create documents or to respond to questions. On October 31, 1996, Mr. XXXXX filed an Appeal with the Office of Hearings and Appeals of the DOE, contending that WAPA's search for documents was inadequate.

II. Analysis

In responding to a request for information filed 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). "The standard of reasonableness which we apply to agency search procedures 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); accord Truitt, 897 F.2d at 542. We have not hesitated to remand a case where it is evident that the search conducted was in fact inadequate. See, e.g., Glen Milner, 17 DOE ¶ 80,132 (1988).

In reviewing the present Appeal, we contacted John D. Bremer, an attorney at WAPA, to ascertain the extent of the search that had been performed and to determine whether any other documents responsive to Mr. XXXXX's request might exist. Mr. Bremer informed us that Mr. Callen, the selecting official for the position, had been contacted. Mr. Callen indicated that the information regarding applicants for the position Mr. XXXXX was seeking had been discarded shortly after the position was filled. Memorandum of Telephone Conversation between Janet R. H. Fishman, Attorney-Examiner, OHA, and John D. Bremer, Attorney, WAPA, November 14, 1996; Electronic Mail Message from John D. Bremer to Janet R. H. Fishman, November 18, 1996. Mr. Callen's statement is consistent with what we know of WAPA's practices. WAPA maintains that it was under no obligation to retain the discarded documents, and in fact, it instructs its selecting officials to destroy their notes. Telephone Memorandum between Janet R. H. Fishman and John D. Bremer, November 18, 1996; Electronic Mail Message from John D. Bremer to Janet R. H. Fishman, November 19, 1996.

We are convinced that WAPA followed procedures which were reasonably calculated to uncover the material Mr. XXXXX sought in his request. See Miller v. Department of State, 779 F.2d 1378, 1384-85 (8th Cir. 1985). The fact that the search did not uncover documents Mr. XXXXX believed may be in the possession of DOE does not mean that the search was inadequate. In addition, Mr. XXXXX has not provided any evidence, beyond his personal belief, that any additional documents exist in the WAPA's files. Mere personal belief is not a sufficient basis to support a finding that a search was inadequate. Glen Milner, 25 DOE ¶ 80,215 (1996); cf. Ron Vader, 23 DOE ¶ 80,183 (1994) (finding an inadequate search where the Appellant remembered an event that ought to have triggered the creation of documents); Deborah L. Abrahamson, 23 DOE ¶ 80,147 (1993). Therefore, under the circumstances of this case, we find that WAPA's search for responsive documents was adequate and that no further documents responsive to Mr. XXXXX's request exist at WAPA. Accordingly, Mr. XXXXX's Appeal should be denied.

It Is Therefore Ordered That:

(1) The Appeal filed on October 31, 1996, by XXXXX, Case No. VFA-0237, 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: November 27, 1996