Dennis J. McQuade, Case No. VFA-0297, June 17, 1997

Case No. VFA-0297, 26 DOE ¶ 80,194

June 17, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Dennis J. McQuade

Date of Filing: May 20, 1997

Case Number: VFA-0297

On May 20, 1997, Dennis J. McQuade filed an Appeal from a determination issued to him on May 7, 1997, by the Oak Ridge Operations Office of the Department of Energy (DOE/OR). In his Appeal, Mr. McQuade asserts, among other things, that DOE/OR failed to provide him with all documents in its possession responsive to a request he filed under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a, as implemented by the Department of Energy (DOE) in 10 C.F.R. Parts 1004 and 1008.

I. Background

In his April 2, 1997 request, Mr. McQuade requested from DOE/OR copies of all information placed in his DOE Personnel Security File from April 1996 to the date of his request. Letter from Dennis J. McQuade to Amy Rothrock, DOE/OR. Mr. McQuade also asked that if certain specified documents was not located in his Personnel Security File, he be apprised and the request forwarded to DOE Headquarters. Id. On May 7, 1997, DOE/OR issued a determination with which it enclosed what it states were all documents contained in his Personnel Security File in existence from the date of April 1996 to the date of Mr. McQuade's request. Letter from Amy Rothrock, DOE/OR, to Dennis McQuade (May 7, 1997); Electronic mail from Amy Rothrock, DOE/OR to Steven Goering, DOE Office of Hearings and Appeals (OHA) (May 29, 1997). In addition, because the information specified by Mr. McQuade was not located in this file, DOE/OR informed Mr. McQuade that his request was forwarded to DOE Headquarters for a search for these documents. Finally, DOE/OR explained to Mr. McQuade that because investigations into his background were performed by the Office of Personnel Management, DOE/OR forwarded a copy of his request to the OPM and asked that office to correspond directly with him concerning the request. Letter from Amy Rothrock, DOE/OR, to Dennis McQuade (May 7, 1997) at 1. In his Appeal, Mr. McQuade states that there are a number of documents that he has reason to believe are contained in his Personnel Security File, but which were not released to him by DOE/OR. The appellant requests that these documents be provided to him. Appeal at 1. Mr. McQuade also requests in his Appeal information concerning the documents that he received in response to his request, and questions the accuracy of certain information contained in the documents released to him. Id. at 1-2.

II. Analysis

As an initial matter, it will be helpful to clearly define the issues that are properly within the scope of the present Appeal. The DOE Privacy Act regulations state that "[a]ny individual may appeal the denial of a request made by him for information about or access to or correction or amendment of records." 10 C.F.R. § 1008.11. The DOE FOIA regulations provide that a requester may file an Appeal of a determination "[w]hen the Authorizing Official has denied a request for records in whole or in part or has responded that there are no documents responsive to the request . . . , or when the Freedom of Information Officer has denied a request for waiver of fees . . . ." 10 C.F.R. § 1004.8. In the present case, Mr. McQuade requested copies of the contents of his Personnel Security File. DOE/OR clearly did not deny this request, but instead provided in their entirety what it states were all documents responsive to the request.

We have, however, interpreted the DOE FOIA regulations to allow for an Appeal by a requester based upon a claim that the search for documents responsive to the request was not adequate. Though Mr. McQuade does not make this claim explicitly, it is the only basis upon which we have jurisdiction to consider his Appeal. We will therefore treat Mr. McQuade's submission as an Appeal of the adequacy of DOE/OR's search for responsive documents.

A. Adequacy of DOE/OR's Search

The Privacy Act requires each federal agency to, inter alia, permit an individual to gain access to information about that individual which is contained in any "system of records" maintained by the agency. 5 U.S.C. § 552a(d); 10 C.F.R. § 1008.6(a)(2). The FOIA generally requires that documents held by the federal government be released to the public upon request. Generally, a FOIA search is a broad, all-encompassing search that would identify any documents also subject to a Privacy Act analysis. Anibal L. Taboas, 25 DOE ¶ 80,207 at 80,775 (1996). Thus, we will analyze this case under FOIA principles. 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. Butler, Vines and Babb, P.L.L.C., 25 DOE ¶ 80,152 (1995); Hideca Petroleum Corp., 9 DOE ¶ 80,108 (1981); Charles Varon, 6 DOE ¶ 80,118 (1980). The FOIA, however, requires that a search be reasonable, not exhaustive. "[T]he 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 Weisberg v. Department of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984). 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).

In the present case, Mr. McQuade requested the contents of his Personnel Security File. Thus, in response to this request, DOE/OR was only required to search in that file. DOE/OR has informed us that it did search Mr. McQuade's file, and that "[a]ll documents in existence from the date of April 1996 to the date of Mr. McQuade's request that resided within his official personnel security file were provided in their entirety." Electronic mail from Amy Rothrock, DOE/OR to Steven Goering, DOE Office of Hearings and Appeals (OHA) (May 29, 1997). We therefore must conclude that DOE/OR's search was adequate in response to Mr. McQuade's request.

Mr. McQuade's assertion that other documents should be in his file is not relevant to our determination because such a claim concerns documents that were not in that file (even though Mr. McQuade believes they should have been), and therefore fall outside the scope of his request. If Mr. McQuade believes that there are documents concerning him in the possession of the DOE other than those in his Personnel Security File at DOE/OR, he may file a request for those documents.(1) He may not, however, broaden the scope of his original request in an Appeal to this office. F.A.C.T.S., 26 DOE ¶ 80,132 at 80,578 (1996); Energy Research Found., 22 DOE ¶ 80,114 at 80,529-30 (1992).

Finally, in his Appeal Mr. McQuade requested information concerning the documents that he received in response to his request. With respect to some of these documents, Mr. McQuade wants to know who put the documents into his file and why they were put there. Appeal at 1. Mr. McQuade also questions the accuracy of specific information contained in the documents released to him. Id. at 2. The FOIA and Privacy Act do not require agencies to answer questions posed by requesters. Mr. McQuade does have the right under the Privacy Act to request "that information about him . . . in a DOE system of records be amended or corrected," 10 C.F.R. § 1008.6, and he may wish to file a request to amend or correct the records he recently received from DOE/OR. However, until DOE/OR has had an opportunity to respond to such a request, we cannot address that issue in an Appeal decision. If Mr. McQuade files a request for amendment or correction, and that request is denied, he certainly may file an Appeal with this office.

III. Conclusion

Based on the information provided to us, we have no doubt that DOE/OR conducted a search reasonably calculated to uncover material responsive to Mr. McQuade's request. Accordingly, the present Appeal will be denied.

It Is Therefore Ordered That:

(1) The Freedom of Information Act Appeal filed by Dennis J. McQuade, Case Number VFA- 0297, 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 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 17, 1997

(1)As we note above, DOE/OR forwarded a copy of the request to DOE Headquarters, as requested by Mr. McQuade, and also forwarded the request to the Office of Personnel Management.