Case No. VFA-0267, 26 DOE ¶ 80,195

June 18, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: James D. Hunsberger

Date of Filing: May 20, 1997

Case Number: VFA-0267

On May 20, 1997, James D. Hunsberger filed an Appeal from a determination issued to him on December 30, 1996, by the Nevada Operations Office (Nevada) of the Department of Energy (DOE). That determination concerned the remand of a prior Appeal Mr. Hunsberger filed with the Office of Hearings and Appeals (OHA) regarding a request for information that he had made pursuant to the Freedom of Information Act, 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a, as implemented by the DOE in 10 C.F.R. Parts 1004 and 1008. If the present Appeal were granted, the DOE would be required to conduct a further search for the information Mr. Hunsberger has requested.

I. Background

On December 12, 1995, Mr. Hunsberger submitted a request for information under the Freedom of Information and Privacy Acts to the Department of Energy. In that initial request he sought all information concerning human experiments of which he may have been a part. He specifically sought information about experiments that tested the effects of a broad range of specified types of radiation on human subjects. Other elements of his initial request are not at issue at the present appeal. The request was referred to the DOE's Office of Human Radiation Experiments (OHRE) for a response.

In a July 22, 1996 Determination Letter, the Acting Director of the OHRE stated that her staff had searched the documents available in the DOE's human radiation experimentation database and found no responsive documents. In addition, they looked into ongoing research involving humans and electric and magnetic fields (EMF), and provided Mr. Hunsberger with information about one project. Mr. Hunsberger appealed this determination, contending that the search was inadequate. In particular, he stated that his request was far broader than EMF studies. He also questioned the accuracy of several of the statements in the determination letter, especially those dealing with ongoing research.

In a September 20, 1996 Decision and Order, the OHA found that the OHRE's search was adequate, but that the search of the agency as a whole was inadequate. It found the

search inadequate on the departmental level because although personal identifiers had been removed from the documents in the database that the OHRE had searched, the unredacted originals, which might possibly contain the names of subjects, are located at the Coordination and Information Center (CIC) in Nevada. The Nevada Operations Office, which is responsible for CIC, confirmed that the records can be searched by name. In addition, because it appeared from his request that Mr. Hunsberger may have been seeking information about experiments that were performed on prison populations, Nevada indicated that a search could be conducted of records connected to prisoner experimentation. The case was remanded to the Freedom of Information and Privacy Act Division so that it could determine the appropriate place to search for documents that might contain the names of experiment subjects and documents that concerned experimentation on prison populations. James D. Hunsberger, 26 DOE ¶ 80,121 (1996). The Freedom of Information and Privacy Act Division referred the remand to Nevada.

In its December 30, 1996 Determination Letter, Nevada indicated that its search revealed no responsive documents concerning Mr. Hunsberger. (It did not mention its search of the prisoner experimentation records, however.) On January 31, 1997, Mr. Hunsberger sent a letter indicating his desire to appeal that determination, stating that he would send a further letter explaining his appeal. The OHA received his letter of explanation on May 20, 1997. In his letter Mr. Hunsberger claims for the first time that the appropriate place for a search to be conducted is the DOE's "intelligence elements" which, he feels, are administering the experiments on him.

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., Acadian Gas Pipeline System, 26 DOE ¶ 80,160 (1997).

In reviewing the present Appeal, we contacted Nevada to ascertain the extent of the search that had been performed and to determine whether any documents responsive to Mr. Hunsberger's request might exist. We were informed that Nevada conducted a search of the DOE's Human Radiation Experiment files and Nevada's Radiation Exposure History files. No files containing his name were located.

As stated above, in his Appeal, Mr. Hunsberger expresses for the first time his belief that the "intelligence elements" of the DOE are responsible for the experiments that have been

conducted on him "over a period of some 15 years, 24 hours a day with interruptions." Appeal Letter received May 20, 1997, from James D. Hunsberger to Director, OHA, at 1. In response to this claim, this Office asked the DOE's Office of Energy Intelligence (OEI) to conduct a search for any records that contain Mr. Hunsberger's name. We have been informed that it has no such records. Memorandum of Telephone Conversation between Loretta Lanier, OEI, and William Schwartz, OHA (June 13, 1997).

We are convinced that Nevada followed procedures that were reasonably calculated to uncover the material sought by Mr. Hunsberger 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. Hunsberger believed may be in the possession of DOE does not mean that the search was inadequate. In addition, Mr. Hunsberger has not provided any evidence, beyond his personal belief, that any additional, relevant documents exist in the DOE's files. Therefore, under the circumstances of this case, we find that Nevada's search for responsive documents was adequate. Accordingly, Mr. Hunsberger's Appeal should be denied.

We note that prison experimentation records are not within the scope of Mr. Hunsberger's present Appeal. However, in response to the September 20, 1996 Decision and Order, Nevada has informed this Office that it recently conducted a search for information concerning experimentation on prisoners and has printed a computer compilation of the titles of some 900 publicly available documents on the subject of prisoner experimentation. Nevada is sending that compilation directly to the appellant. The appellant is encouraged to review the compilation and notify Nevada of any titles that he feels may assist him in his research.

It Is Therefore Ordered That:

(1) The Appeal filed on May 20, 1997, by James D. Hunsberger, Case No. VFA-0267, 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: June 18, 1997