Case No. VFA-0276, 26 DOE ¶ 80,175

April 4, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Applicant:Terry J. Fox

Case Number: VFA-0276

Date of Filing: March 7, 1997

On March 7, 1997, Terry J. Fox of Lacey, Washington, filed an Appeal from a determination issued on February 5, 1997 by the Bonneville Power Administration (BPA) of the Department of Energy (DOE). That determination denied Mr. Fox's request for information submitted 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. The FOIA requires that agency records held by a covered branch of the federal government, and which have not been made public in an authorized manner, generally be released to the public upon request. 5 U.S.C. § 552(a)(3). This Appeal, if granted, would require BPA to conduct another search of its files for responsive information.

BACKGROUND

In his FOIA request, Mr. Fox sought a list generated from computer record logs in the possession of BPA of all long-distance telephone calls made from his brother's telephone number at BPA from December 1995 through November 1996, the date of his request. BPA responded on February 5, 1997. In its determination letter BPA informed Mr. Fox that there were no records responsive to his request. In fact, BPA stated that after checking the computer tape telephone logs, not only were there no records of outgoing calls for his brother's telephone number, there were no records of outgoing calls from any BPA telephone number starting with the same three number prefix as his brother's number. In fact, computer tapes did not list the originating BPA telephone number for any outgoing call. Further, according to the determination

letter, in an attempt to satisfy Mr. Fox's request for information, BPA also contacted Mr. Fox and offered to search for particular telephone numbers that had been called from BPA. However, Mr. Fox apparently responded that he did not know which numbers to search for, and that finding the numbers that were called is the purpose of his FOIA request. Finally, the determination letter states that there were no records in a separate list of any cellular phone calls made by his brother. Mr. Fox appeals the determination. He also requests that we bring this matter to the attention of the DOE Inspector General.

ANALYSIS

Under the FOIA, in response to an appropriate request that reasonably describes the information sought and conforms to agency regulations, an agency must search its records and release responsive, unpublished, non-exempt information that it has created or obtained. 5 U.S.C. § 552(a)(3), (b); Department of Justice v. Tax Analysts, 492 U.S. 144-45 (1989); James L. Schwab, 22 DOE ¶ 80,127 at 80,558 (1992). A search that complies with the FOIA need not cover every corner of the agency. Oglesby v. Department of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990) (and cases cited therein); Miller v. Department of State, 779 F.2d 1378, 1383 (8th Cir. 1985); Martha L. Powers, 24 DOE ¶ 80,147 at 80,618 (1994); Citizens' Action Committee of Pike County Citizens, 22 DOE ¶ 80,178 at 80,679 (1993). Rather, an adequate search under the FOIA need only be one reasonably calculated to uncover the documents requested. Kowalczyk v. Department of Justice, 73 F.3d 386, 389 (D.C. Cir. 1996); Truitt v. Department of State, 897 F.2d 540, 542 (D.C. Cir. 1990) (and cases cited therein); Thomas Stampahar, 26 DOE ¶ 80,140 at 80,593-94 (1996); ; Energy Products, Inc., 23 DOE ¶ 80,114 at 80,528 (1993). "An adequate search, however, must be 'a thorough and conscientious search for responsive documents.'" Energy Research Foundation, 22 DOE ¶ 80,114 at 80,529 (1992) (quoting The Lowry Coalition, 21 DOE ¶ 80,108 at 80,535 (1991)). This FOIA search standard has been specifically adopted by the federal courts of the Ninth Circuit where both Mr. Fox and BPA are located. Citizens Commission on Human Rights v. Food and Drug Admin., 45 F.3d 1325, 1328 (9th Cir. 1995); Zemansky v. Environmental Protection Agency, 767 F.2d 569, 571 (9th Cir. 1985). In its application of this standard, this Office will remand a case for further action if it is evident that an inadequate search was conducted, or if evidence reveals that other documents that were not identified during the initial search exist. Linda J. Carlisle, 24 DOE ¶ 80,124 at 80,560 (1994); McGraw-Hill Nuclear Publications, 22 DOE ¶ 80,157 at 80,627 (1992).

We contacted BPA to determine if it performed a proper search. BPA informs us that there are no responsive cellular telephone records because it did not issue to Mr. Fox's brother a cell phone. However, the records for the non-cellular telephone calls present a different issue. There is no question that Mr. Fox's brother is a BPA employee with the phone number that Mr. Fox listed in his FOIA request. Because Mr. Fox's brother's telephone number has the most common prefix at BPA, we asked BPA to conduct another full search of its telephone computer tapes. BPA informed us that these computer tapes are the only BPA records that might have the information Mr. Fox seeks. As a means of control comparison, we also asked BPA to search the computer tapes for phone calls made from BPA to certain telephone numbers at DOE Headquarters in the Forrestal Building in Washington, D.C. As a second control, we asked that BPA search for Mr. Fox's home phone number in its records of outgoing calls to determine if he was the recipient of any calls placed from a BPA telephone.

BPA has completed the search of the telephone logs we requested. It searched for all of the months Mr. Fox listed in his FOIA request. As a result of this search BPA has again found that its records do not list any telephone calls as specifically coming from Mr. Fox's brother's BPA telephone number. The results of the control search explain the reason for this. BPA reports thousands of telephone calls were made to DOE Headquarters during the search period. However, the computer tapes record only a few general BPA switchboard numbers as the outgoing source. They are not listed by individual BPA telephone numbers. After investigating this matter for us, the BPA FOIA office states that not all of its current telecommunications equipment has the capability to correlate individual telephone calls to particular telephones from which they were made. While this may change in the future, BPA avows that for the period covered by its FOIA search in this case, the information in the computer tape logs only shows general BPA numbers as the sources of outgoing calls. Finally, BPA's search for calls to Mr. Fox's telephone from BPA revealed no matches with his number.

As the foregoing demonstrates, BPA has done an adequate job in attempting to satisfy Mr. Fox's request. We find that the searches it completed were reasonably calculated and conscientiously performed to reveal the records Mr. Fox seeks. Cf. Archie M. LeGrand, Jr., 25 DOE ¶ 80,171 at 80,681 (1996). Thus we find that the BPA search satisfied the requirements of the FOIA. Given the state of the BPA records, there simply are no responsive documents that conform to Mr. Fox's request. Accordingly, Mr. Fox's Appeal should be denied. Finally, there were no responsive documents demonstrating any wrongdoing, and without deciding whether there is an appropriate forum in which to consider Mr. Fox's request, we will not refer this matter to the DOE Inspector General.

It Is Therefore Ordered That:

(1) The Appeal filed by Terry J. Fox of Lacey, Washington, OHA Case No. VFA-0276, 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 alleged agency records are situated, or in the District of Columbia.

George B. Breznay

Director

Office of Hearings and Appeals

Date: April 4, 1997