Case No. VFA-0330, 26 DOE ¶ 80,223

September 29, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Wilburn T. Dunlap

Date of Filing: September 2, 1997

Case Number: VFA-0330

On September 2, 1997, Wilburn T. Dunlap (Dunlap) filed an Appeal with the Office of Hearings and Appeals (OHA) of the Department of Energy (DOE) from a determination that DOE's Albuquerque Operations Office (DOE/AL) issued to him on August 8, 1997. That determination concerned a request for information that Dunlap submitted 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, DOE/AL would be required to conduct a further search for responsive material.

I. Background

Dunlap was employed by the War Department, U.S. Engineers at McDonald Ranch in New Mexico during 1944 and 1945. In his request, Dunlap argued that the employees of the U.S. Engineers should be recognized for their part in this country's history, and requested a "complete list of the U.S. Engineer's force stationed at McDonald Ranch, test site of the first atomic bomb, in 1944 and 1945." Letter from Dunlap to Bradbury Science Museum, Los Alamos National Laboratory (LANL) (May 29, 1997).

Upon receipt of the request, LANL searched their files and located a listing of personnel of the U.S. Engineers Office for the year 1945, but found no responsive material for 1944. LANL sent the responsive material to DOE/AL. However, the personnel list was considered a Department of Defense (DOD) document, and DOE/AL forwarded the document to DOD to determine its releasability and respond directly to Dunlap.(1) DOE/AL advised Dunlap of this result in a final determination letter. Letter from FOI Officer, DOE/AL, to Wilburn Dunlap (August 8, 1997). On September 2, 1997, Dunlap filed the present Appeal, challenging the adequacy of LANL's search.

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 DOE/AL to ascertain the scope of the search it performed for the responsive documents. In response to the original request, LANL searched all of its files and found the 1945 U.S. Engineers Office personnel listing. After the Appeal was filed, DOE/AL requested another search. LANL searched all of its files again, but was still unable to find the 1944 listing or any other responsive material. Because the first search successfully located the 1945 listing, it was reasonable to expect that the 1944 listing, if still in existence, would be found in the same database. The FOIA does not require an exhaustive search, only a reasonable one. On the basis of the facts provided above, we find that LANL conducted a search reasonably calculated to uncover responsive documents. Accordingly, we must deny Dunlap's Appeal.

It Is Therefore Ordered That:

(1) The Appeal filed on September 2, 1997 by Wilburn T. Dunlap, Case No. VFA-0330, 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: September 29, 1997

(1)DOD forwarded the responsive material to the National Archives. The Records Declassification Unit of the National Archives searched its files, was unable to locate any further responsive documents, and released the material to Dunlap on September 11, 1997.