Case No. VFA-0286, 26 DOE ¶ 80,184

May 5, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Alfred G. Bell

Date of Filing: April 7, 1997

Case Number: VFA-0286

On April 7, 1997, Alfred G. Bell filed an Appeal from a determination issued to him on March 24, 1997, by the Department of Energy's Oak Ridge Operations Office (OR). That determination was issued in response to a request for information submitted by Mr. Bell 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 his Appeal, Mr. Bell asserts that OR failed to provide him with a responsive document in its possession regarding a Request for Information he made on January 17, 1997.

I. Background

On January 17, 1997, Mr. Bell filed a request for information in which he sought a copy of an occurrence report completed as a result of his being diagnosed with Chronic Beryllium Disease in accordance with criteria outlined in DOE Order 5000.3B. See Determination Letter at 1. On March 24, 1997, OR issued a determination which stated it conducted a search of its files and located a report entitled "Individual Accident/Incident Report". Id. However, this was not the document Mr. Bell referred to in his request. Nevertheless, OR provided this report to Mr. Bell. OR further informed Mr. Bell that this report was the only record that it could locate concerning his diagnosis of Chronic Beryllium Disease. Id.

On April 7, 1997, Mr. Bell filed the present Appeal with the Office of Hearings and Appeals (OHA). In his Appeal, Mr. Bell challenges the adequacy of the search conducted by OR. Specifically, Mr. Bell argues that OR failed to provide him a copy of an occurrence report concerning him in accordance with DOE Order 5000.3B. Mr. Bell further contends that the existence of this report was alluded to by Mr. Rufus H. Smith, Diversity Programs and Employee Concerns Manager, OR, in a letter dated on January 14, 1997. He has enclosed a copy of this correspondence with his present Appeal. Mr. Bell asks that the OHA direct OR to conduct a new search for responsive documents.

II. Analysis

The FOIA requires that documents held by federal agencies generally be released to the public upon request. Following an appropriate request, agencies are required 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 inadequate." 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, 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 present Appeal, we contacted officials at OR to ascertain the extent of the search that had been performed. Upon receiving Mr. Bell's Request for Information, OR contacted the Y-12 Plant where Mr. Bell was employed at the time an occurrence report would have been generated concerning his diagnosis with Chronic Beryllium Disease. The Department of Energy Site Office as well as the contractor, Lockheed Martin Energy Systems, Inc., each conducted a search of its files and was unable to locate documents responsive to Mr. Bell's request. OR further indicated that the Y-12 Industrial Hygiene Department also conducted a manual search of its files and could not locate an occurrence report pertaining to Mr. Bell. However, during their search, OR was able to obtain medical records from the Y-12 Medical Department that pertained to Mr. Bell, specifically a report entitled "Individual Accident/Incident Report." This report was released to Mr. Bell. OR has confirmed to us that this report is not the occurrence report requested by Mr. Bell.

As stated earlier, the appellant argues that Mr. Rufus Smith, OR's Operations Diversity Programs and Employee Concerns Manager, indicated in a January 14 letter that a copy of an occurrence report was completed concerning Mr. Bell in accordance with the criteria outlined in DOE Order 5000.3B. Mr. Smith also indicated in this letter that Mr. Bell could gain access to this document through the Freedom of Information Act office in Oak Ridge. We have reviewed this correspondence and OR has informed us that it contacted Mr. Smith to search his files for the requested occurrence report. Subsequently, Mr. Smith informed officials in OR that he was unable to locate any reponsive documents, and signed a certification that a diligent and adequate search had been perfomed. See OR's Response at 1. Thus, it appears that Mr. Smith was mistaken when he stated in his January 14 letter that an occurrence report concerning Mr. Bell had been completed.(1) Given the facts presented to us, we find that OR conducted an adequate search which was reasonably calculated to discover documents responsive to Mr. Bell's Request. Therefore, we must deny this Appeal.

It Is Therefore Ordered That:

(1) The Appeal filed by Alfred G. Bell, OHA Case No. VFA-0286, on April 7, 1997, 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: May 5, 1997

(1)Outside of the FOIA context, we have asked OR to investigate why an occurrence report concerning Mr. Bell was not created. OR has agreed to do so, and will respond directly to Mr. Bell.