Curry Contracting Co., Inc., Case No. VFA-0321, August 18, 1997

Case No. VFA-0321, 26 DOE ¶ 80,211

August 18, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Curry Contracting Co., Inc.

Date of Filing: July 30, 1997

Case Number: VFA-0321

On July 30, 1997, Curry Contracting Co., Inc. (Curry) filed an Appeal from a determination issued to it on June 30, 1997 by the Oak Ridge Operations Office (OR) of the Department of Energy (DOE). That determination concerned a request for information submitted by Curry pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004. If the present Appeal were granted, OR would be required to conduct a further search for responsive material.

I. Background

In a March 3, 1997 FOIA Request to OR, Curry, a contractor at the Office of Scientific and Technical Information (OSTI) facility at OR, asked for copies of the following documents:

(1) All OSHA Reports filed "against" the DOE at the OSTI Building in the last three years;

(2) All documents used or "not used" to determine or "not determine" award fees/incentive fees for Curry;

(3) All complaints pertaining to Curry at the OSTI Building for the last two years;

(4) All reports regarding Curry originating from certain named individuals or from any other person having written documentation regarding Curry; and

(5) All award fee/incentive fee contracts at the OSTI Building over the past three years to the present date, including award fee/incentive fee criteria on time and material contracts and cost plus basis.

See Letter from Curry Contracting Co. to Nancy McGinty, OR (March 3, 1997). In its determination letter dated June 30, 1997, OR provided Curry with documents pursuant to request category nos. 2

and 3. With regard to request category nos. 1, 4 and 5, OR stated that it could not find any responsive documents.

In its July 30, 1997 Appeal, Curry asserts that OR must have documents responsive to request category nos. 1, 4 and 5 and that they should be easily accessible to OR. Consequently, Curry maintains that the search for these three request categories was inadequate.

II. Analysis

In responding to a request for information filed under the FOIA, it is well established that an agency must "conduct a search reasonably calculated to uncover all relevant documents." Truitt v. Department of State, 897 F.2d 540, 542 (D.C. Cir. 1990). "The 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 Truitt, 897 F.2d at 542. We have not hesitated to remand a case where it is evident that the search conducted was in fact inadequate. See, e.g., Glen Milner, 17 DOE ¶ 80,102 (1988).

In reviewing the present Appeal, we contacted OR to ascertain the extent of the search that had been performed for responsive documents. OR informed us that with regard to Curry's request for OSHA Reports (request category no. 1), OR and the OSTI facility have not been subject to inspections by OSHA and that DOE itself has the responsibility for enforcement of its own safety and health regulations. Thus, because OR officials knew that OR's offices did not receive such OSHA Reports, a search was not conducted. See Memorandum of telephone conversation between Amy Rothrock, FOIA Officer, OR, and Richard Cronin, OHA Staff Attorney (August 6, 1997). OR did conduct a search for reports concerning Curry (request category no. 4) at the offices at OSTI as well as the only OR office that might possess relevant documents, the OR contract administration office. (1) Id. Additionally, the files in the offices of each of the individuals listed by Curry in its request were searched for responsive documents. Id. No responsive documents were discovered in any of these searches. Id. As for Curry's request for copies of all award fee/incentive fee contracts at the OSTI Building (request category no. 5), OR informed us that there are no award fee/incentive fee contracts at the OSTI Building other than the contract with Curry and that Curry has a copy of that contract. Id.

Given the facts reported above, we find that OR conducted a search reasonably calculated to find responsive documents. As for request category nos. 1 and 5, the requests for OSHA Reports and incentive fee/award fee contracts, OR had definitive factual knowledge that such documents do not

exist (other than Curry's own OSTI contract). With regard to request category no. 4, the request for reports concerning Curry, OR made an appropriate search of offices of all relevant individuals. Because we believe that OR conducted an adequate search for responsive documents, we must deny Curry's appeal.

It Is Therefore Ordered That:

(1) The Appeal filed on July 30, 1997 by Curry Contracting Co., Inc., Case No. VFA-0321, 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: August 18, 1997

(1)OR informed us that while OSTI is operated by DOE Headquarters, any responsive documents that might exist regarding Curry's appeal would be located at OSTI and/or OR since OR handles all contract administration functions for OSTI. See Memorandum of telephone conversation between Amy Rothrock, FOIA Officer, and Richard Cronin, OHA Staff Attorney (August 6, 1997).