Information Focus on Energy, Inc., Case No. VFA-0280, April 17, 1997

Case No. VFA-0280, 26 DOE ¶ 80, 179

April 17, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Information Focus on Energy, Inc.

Date of Filing:March 24, 1997

Case Number:VFA-0280

On March 24, 1997, Information Focus on Energy, Inc. (IFE) filed an Appeal from a February 18, 1997 determination by the Assistant Inspector General for Resource Management (Assistant IG) of the Office of Inspector General of the Department of Energy (DOE). In that determination, the Assistant IG partially granted a request for information filed by the Appellant under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004. In its Appeal, IFE asks that we order a new search for responsive documents.

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 an agency may withhold at its discretion. 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 its request for information, IFE sought copies of documents containing "[t]he titles, report numbers, and issue dates of all DOE Inspector General Reports, including inspection reports, for the years 1988 through September, 1996." In the February 18, 1997 determination letter, the Assistant IG enclosed copies of listings for all audit reports, including "investigative and inspection reports that have a public distribution." The Assistant IG also stated that her office did not maintain lists of investigative and inspection reports. Furthermore, the Assistant IG noted

that the FOIA does not require the compilation or creation of a record for the purpose of satisfying a request for records.

In its appeal, IFE argues that its request did not ask the Assistant IG to create a list of investigative and inspection reports. IFE contends that the Assistant IG should have in its files releasable copies of title pages of these reports. IFE also states that the Assistant IG only identified documents available for "public distribution." Based on the Assistant IG's statement in the determination letter, IFE infers that the Assistant IG has additional inspection reports and audits that she is improperly withholding.

II. Analysis

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 reviewing the Appeal, we contacted the Assistant IG to ascertain the validity of IFE's contention that there exist title pages of unidentified reports and that the Assistant IG did not identify in her determination letter other documents responsive to IFE's request.(1) An official in the Assistant IG's office informed us that the IG's office has additional investigative and inspection reports not included in the compilation lists sent to IFE. Some of these reports have title pages. Furthermore, the official confirmed that the Assistant IG did not identify all of the documents responsive to IFE's request. The Assistant IG only identified those documents available for "public distribution." Since the scope of the FOIA is not limited to documents that have previously been made available to the public, the Assistant IG must conduct a search for all responsive documents, including those that are not for "public distribution." If the Assistant IG finds that responsive material contained in those documents is withholdable pursuant to the FOIA, she should identify these documents and cite the appropriate FOIA exemption. Accordingly, we will remand this matter to the Assistant IG to either release the "titles, report numbers, and issue dates of all DOE Inspector General Reports, including inspection reports, for the years 1988 through September, 1996" or provide a detailed explanation for withholding any such information.

It Is Therefore Ordered That:

(1) The Appeal filed by Information Focus on Energy, Inc. on March 24, 1997 is hereby granted as set forth in paragraph (2) below, and is denied in all other respects.

(2) This matter is hereby remanded to the Assistant Inspector General for Resource Management of the Office of Inspector General of the Department of Energy to search for and release documents containing titles, report numbers, and issue dates of all DOE Inspector General Reports, including inspection reports, for the years 1988 through September 1996 or provide a detailed explanation for withholding any such information.

(3) This is a final order of the Department of Energy from which any aggrieved party may seek judicial review. 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: April 17, 1997

(1)*/ See memoranda of telephone conversations between Leonard M. Tao, Office of Hearings and Appeals Staff Attorney, and Jane Payne, Office of the Inspector General.