Case No. VFA-0332, 26 DOE ¶ 80,226

October 14, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner:Dr. Daniel D. Eggers

Date of Filing:September 16, 1997

Case Number: VFA-0332

On September 16, 1997, Dr. Daniel D. Eggers (Appellant) completed the filing of an Appeal from a determination issued on April 14, 1997, by the Department of Energy’s Oak Ridge Operations Office (DOE/OR).(1) This determination was issued in response to a request for information that the Appellant submitted 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 March 20, 1997, the Appellant submitted a FOIA request to DOE/OR seeking copies of records regarding a particular World War II-era patent which the Appellant believes belonged to his father, an employee at the Oak Ridge site in that era. The Appellant specified an “S-number,” S-5443,

connected with this patent and explained that the patent related to the electromagnetic separation process. He also stated that a person named S.W. Scott worked with his father on the patent. On April 14, 1997, DOE/OR issued its determination, stating that it could not locate any responsive documents. On September 16, 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. DOE/OR informed us that it searched the patent and intellectual property records databases of both the Office of Chief Counsel (OCC) of DOE/OR, as well as the Office of General Patent Counsel of DOE/OR’s management and operating contractor of the Y-12 plant, Lockheed Martin Energy Systems (LMES).(2) We learned that the OCC database contains records of the World War II era, but the Y-12 database only contains records originating in 1984 or later. See Records of Telephone Conversations between Dawn Goldstein and Amy Rothrock (September 16 and 18, 1997).

Subsequent to issuing its determination, DOE/OR found an entry listed for “Eggers” in patent logbooks kept by OCC in the DOE/OR offices and dating back to the 1940's. (3)According to this entry, the patent was applied for on May 25, 1949 and abandoned on August 3, 1951, meaning that there was never a final patent issued. Using this new information, DOE/OR requested that the DOE Headquarters Office of General Counsel (OGC) conduct a search of its patent database and other patent records, and that LMES conduct a further search of its Y-12 records. See Record of Telephone Conversation between Dawn Goldstein and Amy Rothrock (September 18, 1997). According to Betty Winchester of OGC, the patent referred to in the logbook had an S-number of S-5443, therefore confirming that this patent is the same patent referred to in the Appellant’s request. However, OGC’s paper file on this matter would have been destroyed due to its age. See Electronic Mail Message from Amy Rothrock to Dawn Goldstein (September 26, 1997) (including electronic mail message from Betty Winchester to DOE/OR). Also, no further documents could be located at the Y-12 plant. See Electronic Mail Message from Amy Rothrock to Dawn Goldstein (September 25, 1997).

Ms. Rothrock explained the difficulty of finding patent and other research records created prior to 1984. These records are dispersed over approximately 300 buildings at Y-12 and apparently are not indexed in any way. In addition, the subject matter of the patent, the electromagnetic separation process, is extremely broad. DOE/OR stated that if the Appellant could inform DOE/OR of a more specific title of his father’s project or references to any papers his father had written, or the name of his father’s office, DOE/OR might be able to find responsive records. See Record of Telephone Conversation between Dawn Goldstein and Amy Rothrock (September 18, 1997).

We find that the search as previously conducted was adequate. Without more specific information, a search through thousands of unindexed files for records that might not exist due to their great age would have imposed an unreasonable burden on DOE/OR. See Nation Magazine v. U.S., 71 F.3d 885, 892 (D.C. Cir. 1995) (to search 23 years of unindexed files would impose an unreasonable burden on an agency); Lois Blanche Vaughn, 26 DOE ¶ 80,165 at 80,713 (1997). However, the Appellant has now informed us that he is able to provide specific information to DOE/OR which may prove helpful to them in conducting a further search. See Record of Telephone Conversation between Dawn Goldstein and Appellant (October 1, 1997). If the Appellant had not provided such information, we would have upheld DOE/OR’s determination. However, since this Office has helped to uncover this additional information, we are able to promote a quick, responsive resolution by remanding this case to DOE/OR for an additional search for responsive documents. On remand, DOE/OR shall identify all documents responsive to the Appellant’s reformulated request and either release them or provide adequate justification for withholding any portion of them.(4)

It Is Therefore Ordered That:

(1) The Appeal filed by Dr. Daniel D. Eggers on September 16, 1997, Case No. VFA-0332, is hereby granted as set forth in Paragraph (2) below.

(2) This matter is hereby remanded to the Department of Energy’s Oak Ridge Operations Office, which shall conduct a search for documents responsive to the Appellant’s reformulated request as described in the above Decision and Order, and shall promptly issue a new determination regarding those documents.

(3) 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: October 14, 1997

_

(1)The Appellant initially filed a submission with the Office of Hearings and Appeals (OHA) on September 3, 1997. The OHA held the submission in abeyance until September 16, 1997, when we received a copy of the April 14, 1997 determination. The Appellant informed us that he did not receive the determination letter until August 30, 1997. See Record of Telephone Conversation between Dawn Goldstein, Staff Attorney, OHA, and Appellant (October 1, 1997). Therefore, we will consider the Appeal as being filed within the regulatory deadline of thirty calendar days after receipt of the determination letter. See 10 C.F.R. § 1004.8(a).

(2)According to DOE/OR’s records, the Appellant’s father worked only at the Y-12 plant. See Record of Telephone Conversation between Dawn Goldstein and Amy Rothrock, FOIA Officer, DOE/OR (October 1, 1997).

(3)DOE/OR sent a copy of that logbook entry to the Appellant. See Record of Telephone Conversation between Dawn Goldstein and Amy Rothrock (September 18, 1997).

(4)In addition, we suggest that the Appellant submit a FOIA request to the U.S. Patent and Trademark Office (located within the Department of Commerce) for information regarding this patent.