Case No. VFA-0317, 26 DOE ¶ 80,220

September 12, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Ralph C. Elkins

Date of Filing: August 15, 1997

Case Number: VFA-0317

On August 15, 1997, Ralph C. Elkins completed the filing of an Appeal from a determination issued to him on June 27, 1997, by the Freedom of Information and Privacy Act Division (FOIA Division) of the Department of Energy. That determination concerned a request for information Elkins filed pursuant to the Privacy Act, 5 U.S.C. § 552a, as implemented by the DOE in 10 C.F.R. Part 1008. If the present Appeal were granted, the DOE would be required to conduct a further search for the requested information.

The Privacy Act requires that each federal agency permit individuals access to records pertaining them that are contained in a system of records maintained by the agency. 5 U.S.C. § 552a(d). DOE regulations define a system of records as "a group of any records under DOE control from which information is retrieved by the name or the individual or by some identifying number, symbol, or other identifying particulars assigned to the individual." 10 C.F.R. § 1008.2(m).

In his request, Elkins sought documents pertaining to a security clearance he held between 1962 and 1979. According to Elkins, he was employed by a contractor involved with nuclear powered U.S. Naval vessels. In its determination, the FOIA Division stated that a search for responsive documents was conducted, and that no responsive records were found. The appellant asks that a new search for documents responsive to his request be conducted.

We have stated on numerous occasions that Freedom of Information and Privacy Act requests deserve thorough and conscientious searches for responsive documents, and we have not hesitated to remand cases 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 reviewing the present Appeal, we contacted the person who conducted the search to ascertain the extent of the search that had been performed and the basis for the conclusion that no relevant documents exist. He stated that DOE maintains a listing of everyone who is known to have held a security clearance under DOE or any of its predecessor agencies on

microfiche and in a computerized database, the Central Personnel Clearance Index. He also stated that both the microfiche and the database were searched, and Elkins' name was not found. He further noted that most inactive security clearance files are discarded after 10 years. Consequently, even if Elkins had been identified as having held a DOE clearance, his actual clearance file would probably not have been available. Memorandum of Telephone Conversation between V. Hawkins, Office of Security Affairs, and B. MacPherson, Office of Hearings and Appeals (September 5, 1997). See also Gretchen Lee Coles, 26 DOE ¶ 80,151 (1997) (inactive security clearance files discarded after 10 years). We also contacted the Office of Naval Reactors, which confirmed that it did not have any responsive documents. Memorandum of Telephone Conversation between J. Kiell, Office of Naval Reactors, and B. MacPherson, Office of Hearings and Appeals (September 8, 1997).

We are convinced that the FOIA Division followed procedures which were reasonably calculated to uncover the material sought by Elkins. See Miller v. Department of State, 779 F.2d 1378, 1384-85 (8th Cir. 1985). That the search did not uncover the records that Elkins believed may be in the possession of DOE does not mean that it was inadequate. The FOIA Division searched the indexes that would locate the Elkins security file if it existed within DOE. This search found no indication that Elkins had ever held a DOE security clearance.(1) Consequently, we find that the search for responsive documents was adequate and that no documents responsive to Elkins' request exist at DOE. Accordingly, the Appeal must be denied.

It Is Therefore Ordered That:

(1) The Appeal filed by Ralph C. Elkins on August 15, 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. § 552a(g)(1). 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: September 12, 1997

(1)Elkins has not cited any evidence that he had held a DOE clearance. In fact, in his Appeal he states that he understood that the program he was cleared for was within the Defense Department's purview. If that were the case, the Defense Department and not DOE would be most likely to have the documents requested. Mr. Elkins explained in a telephone conversation that he requested the documents from the Defense Department, but they found none and suggested that he try DOE.