Case No. VFA-0314, 26 DOE ¶ 80,209

August 12, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner:W.L. McCullough

Date of Filing:July 22, 1997

Case Number: VFA-0314

On July 22, 1997, W.L. McCullough (Appellant) completed the filing of an Appeal from a determination issued on July 8, 1997, by the Department of Energy's Oak Ridge Operations Office (DOE/OR). This determination was issued in response to a request for information submitted 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 this Decision and Order, we will determine whether the DOE must conduct a further search for documents responsive to the Appellant's FOIA request.

The FOIA requires that documents held by federal agencies generally be released to the public upon request. The FOIA, however, lists nine exemptions that set forth the types of information that may be withheld at the discretion of an agency. 5 U.S.C. § 552(b). DOE regulations further provide that a document exempt from disclosure under the FOIA shall nonetheless be released to the public whenever the DOE determines that disclosure is in the public interest. 10 C.F.R. § 1004.1.

I BACKGROUND

On June 24, 1997, the Appellant submitted a FOIA request to DOE/OR seeking copies of records regarding a particular grant issued by DOE to the Community Reuse Organization of East Tennessee (CROET). The Appellant specifically requested the total dollars spent in the grant; the names, addresses and telephone numbers of the 101 persons who obtained jobs through the grant (according to the Appellant); and the names and addresses of the nine businesses started through the grant (according to the Appellant). On July 8, 1997, DOE/OR issued its determination, releasing one document showing the total dollars spent in the grant and stating that it could locate no other responsive documents. On July 22, 1997, the Appellant completed the filing of the present Appeal in which he contends that DOE's search for documents was inadequate.

II ANALYSIS

We have held that a FOIA request deserves a thorough and conscientious search for responsive documents. When we have found that a search was inadequate, we have consistently remanded the

case and ordered a further search for responsive documents. E.g., Native Americans for a Clean Environment, 23 DOE ¶ 80,149 (1993); Marlene R. Flor, 23 DOE ¶ 80,130 (1993); Eugene Maples, 23 DOE ¶ 80,106 (1993). However, the FOIA requires that a search be reasonable, not exhaustive. "The standard of reasonableness that we apply to the agency search procedures does not require absolute exhaustion of 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).

We contacted DOE/OR to determine how it conducted the search. We learned that the DOE/OR searched the contracts and procurement office and the office of the assets manager. The contracts and procurement office is the office that supervises the type of grant with which the Appellant is concerned. However, that office has no documentation with the type of detail that the Appellant requested. The office of the assets manager was able to supply the one document the Appellant received, showing that, in sum, 101 new jobs and nine new businesses were created. But it did not contain the detail desired by the requester. DOE/OR believes that detailed information of the type sought by the individual is in the possession of the grantee, CROET.

We then inquired whether documents in the possession of CROET might be subject to release. If responsive documents exist and are in the possession of CROET, they may be subject to voluntary release if the grant between the DOE and the grantee (the contractor) provides that the document in question is the property of the DOE. DOE regulations provide that "[w]hen a contract with DOE provides that any records acquired or generated by the contractor in its performance of the contract shall be the property of the Government, DOE will make available to the public such records that are in the possession of the Government or the contractor, unless the records are exempt from public disclosure under 5 U.S.C. § 552(b)." 10 C.F.R. 1004.3(e)(1).

We therefore next examined the provisions of the grant between DOE and CROET to determine the status of the requested records. That grant does not provide for the ownership by DOE of any grantee-owned or grantee-generated documents. Grant DE-FG05-94OR22364, Clause 27, Public Access to Information. Thus, if the requested documents exist and are in the possession of CROET, these records are not subject to release under the DOE regulations. In sum, we find that DOE/OR searched all of its offices where it had an expectation of finding responsive documents. Any possibly responsive documents which might exist at CROET are not subject to release.(1) Because we find that DOE/OR conducted a reasonable search, we will deny the Appeal.

It Is Therefore Ordered That:

(1) The Appeal filed by W.L. McCullough on July 22, 1997, Case No. VFA-0314, is hereby denied.

(2) This is a final order of the Department of Energy of 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: August 12, 1997

(1)*/ Under 10 C.F.R. § 600.153(e), DOE has a right of access to the type of documents requested here. However, the right to access alone does not give DOE the ability to release such documents under the FOIA or 10 C.F.R. § 1004.3. See The Cincinnati Enquirer, 26 DOE ¶ 80,___, Case No. VFA-0307 (July 29, 1997).

We further note that the DOE does not exercise day-to-day control over CROET sufficient to render it an "agency" for purposes of the FOIA. See Telephone Memorandum between Dawn Goldstein, Staff Attorney, OHA, and Amy Rothrock, FOIA Officer, DOE/OR (August 7, 1997); Forsham v. Harris, 445 U.S. 169, 180 (1980); United States v. Orleans, 425 U.S. 807, 815 (1976).