Case No. VFA-0299, 26 DOE ¶ 80,198

June 30, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: International Brotherhood of Electrical Workers

Date of Filing: June 2, 1997

Case Number: VFA-0299

On June 2, 1997, the International Brotherhood of Electrical Workers (IBEW) filed an Appeal from a determination issued to it on April 28, 1997, by the Savannah River Operations Office (SR) of the Department of Energy (DOE). That determination was issued in response to a request for information submitted by IBEW 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, IBEW asserts that SR failed to provide it with responsive documents in its possession regarding a Request for Information it made on July 16, 1996.

I. Background

On July 16, 1996, IBEW filed a request for information in which it sought material regarding union- related activities at SR. SR issued two determinations regarding this request on October 10, 1996, and November 8, 1996, and IBEW appealed SR's final responses to the Office of Hearings and Appeals (OHA) on December 12, 1996. In those determinations, SR partially granted IBEW's request for information and released numerous documents responsive to IBEW's request. On Appeal, IBEW clarified its initial request and OHA remanded the clarified request back to SR for a further search of responsive documents. See I.B.E.W., 26 DOE ¶ 80,153 (1997). SR's clarified request sought the following additional information:

1. An accurate accounting of all moneys, materials, time, lost productivity, etc., associated with WSRC [Westinghouse Savannah River Company] "anti- Union" or union related training for supervisors and informational meetings with the nonexempt employees and how WSRC passed on those expenses to the DOE.
2. Any and all memos, correspondence, flyers, electronic mail, etc., concerning the Union and its activities, generated by DOE or its contractor WSRC in the last ten months including directives, comments, suggestions, training plans or requests for funding to conduct "anti-Union" or union-related training, including documents generated between the DOE and the contractor for Wackenhut Services Incorporated.
3. The documents concerning the account of WSRC's union-related training activities.

Determination Letter at 1.

On April 28, 1997, SR issued a determination which stated that WSRC as well as the SR program offices conducted a search of their files and found no additional documents responsive to IBEW's clarified request. Id.

On June 2, 1997, IBEW filed the present Appeal with OHA. In its Appeal, IBEW challenges the adequacy of the search conducted by SR. Specifically, IBEW argues that SR failed to provide it with information pertaining to the expenditure of government contract funds. See Appeal Letter at 1. In its Appeal, IBEW encloses an article from its May IBEW Journal regarding "the current Administration's position on organizing and federal contractors." Id. IBEW contends that this article demonstrates that its FOIA request is a serious matter and should be handled accordingly. Id. IBEW asks that the OHA direct SR 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 SR to ascertain the extent of the search that had been performed and to determine whether any other documents responsive to IBEW's request might exist. SR has made a concerted effort to locate documents responsive to IBEW's request. Upon receiving IBEW's clarified Request for Information, SR contacted WSRC and various SR program offices to search for additional responsive documents. The Office of General Counsel and the Human Resource Division at WSRC conducted searches of their files and were unable to locate additional documents responsive to IBEW's clarified request. Likewise, searches were conducted at several SR program offices, including the Contracts Management Division, the Office of Safeguards and Security, the Human Resources Office, the Training Office and the Office of the Chief Financial Officer. None of these offices was able to locate additional responsive documents. Given the facts presented to us, we find that SR conducted an adequate search which was reasonably calculated to discover additional documents responsive to IBEW's Request. The fact that the search did not uncover documents alleged to be in the possession of DOE does not mean that the search was inadequate. See Master v. F.B.I., 926 F. Supp. 193, 196 (D.D.C. 1996). In addition, the requester has not provided us with any evidence that additional responsive documents exist. See Lois Blanche Vaughan, 26 DOE ¶ 80,165 (1997). Therefore, we must deny this Appeal.

It Is Therefore Ordered That:

(1) The Appeal filed by International Brotherhood of Electrical Workers, OHA Case No. VFA-0299, on June 2, 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: June 30, 1997