Case No. VFA-0367, 27 DOE ¶ 80,110

February 17, 1998

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

APPEAL

Name of Petitioner: Diane C. Larson

Date of Filing: January 16, 1998

Case Number: VFA-0367

On January 16, 1998, Diane C. Larson (the Appellant) completed the filing of an Appeal with the Office of Hearings and Appeals (OHA) of the Department of Energy (DOE) under the Privacy Act of 1974, 5 U.S.C. § 552a, as implemented by the DOE in 10 C.F.R. Part 1008. In this Appeal, the Appellant requested that OHA review a determination issued on December 12, 1997, by the Office of Energy Intelligence, within the Office of Non-Proliferation and National Security, to ascertain whether an adequate search had been conducted for documents responsive to the Appellant’s Privacy Act request. The Appellant also asked that OHA order the Office of the Inspector General (OIG) to expedite the issuance of a determination on her Privacy Act request.

BACKGROUND

In September, 1997, the Appellant submitted a Privacy Act request(1) to the Freedom of Information Act /Privacy Act Division of the Office of the Executive Secretariat (Headquarters FOIA Office) seeking copies of documents containing counter-intelligence information or pertaining to a certain investigation conducted by the OIG.(2) On October 10, 1997, a Management Analyst at the

Headquarters FOIA Office asked the staffs of the Office of Energy Intelligence and OIG to search their office files for responsive records. See Memorandum of Telephone Conversation between Tonya Woods and Linda Lazarus, OHA Staff Attorney (February 13, 1998).

On December 12, 1997, the Director of the Office of Energy Intelligence issued a determination letter to the Appellant. In this letter, the Director stated that his staff had searched the office files for responsive records, but that no records were found.

The Appellant has appealed the determination issued by the Office of Energy Intelligence on the grounds that the staff of this office had failed to conduct a search reasonably calculated to uncover the requested documents. The Appellant also requests that OHA order OIG to expedite the issuance of a determination in response to her Privacy Act request.

ANALYSIS

As detailed below, we shall deny this Appeal because we find that the search conducted by the staff of the Office of Energy Intelligence was adequate, and we lack jurisdiction to review the processing of Appellant’s Privacy Act request by the OIG.

I. The Search Conducted by the Office of Energy Intelligence

This case involves a search for documents under the Privacy Act. The Privacy Act requires, inter alia, that each federal agency permit an individual to gain access to information about himself that is contained in any 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 of the individual or by some identifying number, symbol, or other identifying particulars assigned to the individual." 10 C.F.R. § 1008.2(m). Under the Privacy Act, an office that issues a determination to a requester must insure that it has searched for records that are retrieved by the name or other personal identifier of the requester in every relevant system of records under its control.

We have often reviewed the adequacy of a search conducted under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004. A Privacy Act request requires only a search of systems of records, rather than a search of all agency records, as is required under the FOIA. Nevertheless, the standard of sufficiency that we demand of a Privacy Act search is no less rigorous than that of a FOIA search. Therefore we will analyze the adequacy of the Privacy Act search conducted by the Office of Energy Intelligence using principles that we have developed under the FOIA. See Anibal L. Taboas, 25 DOE ¶ 80,207 at 80,775 (1996).

Under the FOIA, an office must conduct a thorough and conscientious search for responsive documents. See Eugene Maples, 23 DOE ¶ 80,106 (1993); Marlene R. Flor, 23 DOE ¶ 80,130 (1993); Native Americans for a Clean Environment, 23 DOE ¶ 80,149 (1993). Although we require that a comprehensive search be conducted under the FOIA, we do not require that this search be exhaustive. We require only that a FOIA search be reasonable. "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).

To determine whether the search conducted in response to the Appellant’s Privacy Act request was reasonable, we contacted several members of the staff of the Office of Energy Intelligence. A Research Specialist of that office informed us that if documents responsive to this request were in the Office of Energy Intelligence, such documents would be found in the Division of Counterintelligence or the Intelligence Support Division. See Memorandum of Telephone Conversation between Loretta Lanier and Linda Lazarus (February 13, 1998).

An Intelligence Analyst assigned to the Division of Counterintelligence explained that he was responsible for the search that had been conducted in that Division. He explained that this Division maintains two systems of records, DOE-81, "Counterintelligence Administrative Analytical Records and Reports," and DOE-84, "Counterintelligence Investigative Records," that could contain responsive documents.(3) The Intelligence Analyst conducted a computerized search of DOE-81 using the Appellant’s name and found no responsive records. The Intelligence Analyst also stated that, at his behest, another employee searched DOE-84 for records containing the Appellant’s name, and that this employee had reported to him that no responsive records had been found. See Memorandum of Telephone Conversation between Gary Chidester and Linda Lazarus (February 6, 1998).

We also spoke to a Security Specialist in the Intelligence Support Division concerning the search conducted for records in that Division. The Security Specialist stated that the only records in her Division that could be responsive to the Appellant’s Privacy Act request would be located in file cabinets and notebooks containing non-disclosure agreements signed by individuals who have access to "Sensitive Compartmented Information" (SCI). She further explained that the non-disclosure agreements of individuals who currently have access to SCI are maintained in file cabinets, and the non-disclosure agreements of individuals who have had access to SCI in the past, but no longer have such access, are kept in notebooks. She stated that the Intelligence Support Division maintains both in alphabetical order. The Security Specialist told us that when the request came in for records involving the Appellant, she checked the appropriate locations in the file cabinets and the notebooks, but found no documents involving the Appellant. See Memorandum of Telephone Conversation between Patricia Pettaway and Linda Lazarus (February 6, 1998).

Based on the above, the staff of the Office of Energy Intelligence has convinced us that it followed procedures that were reasonably calculated to uncover the materials that the Appellant sought in her Privacy Act request. Consequently, we shall deny the portion of the Appeal that relates to the adequacy of the search conducted by this office.(4)

II. OHA Lacks Jurisdiction to Order OIG to Expedite A Privacy Act Request

The Appellant requests that OHA order OIG to expedite the processing of her Privacy Act request. However, for the reasons detailed below, we must dismiss this portion of the Appeal because OHA does not have jurisdiction over this matter.

Section 1008.11(a) of the DOE regulations sets forth the circumstances under which an individual may file an appeal with OHA under the Privacy Act. It provides, in relevant part, that "[a]ny

individual may appeal the denial of a request made by him for information about or for access to or correction or amendment of records."

We have consistently construed regulations that set forth the circumstances under which an individual may file an appeal with OHA to be jurisdictional. See Suffolk County, 17 DOE ¶ 80,111 at 80,524 (1988) (Section 1004.8(a) construed to confer jurisdiction on OHA over a FOIA appeal only when an Authorizing Official has issued a determination); John H. Hnatio, 13 DOE ¶ 80,119 at 80,566 (1985) (dismissing appeal because no determination issued); Tulsa Tribune, 11 DOE ¶ 80,161 at 80,741 (1984) (no administrative remedy for agency's non-compliance with a timeliness requirement). We hold that the reasoning of these cases is fully applicable here. Accordingly, because Section 1008.11(a) permits Privacy Act appeals to be filed with OHA only after a denial has been issued by a Privacy Act Officer, OHA lacks jurisdiction to hear a Privacy Act appeal in the absence of the issuance of such a denial. For this reason, we must dismiss the portion of this Appeal in which the Appellant has requested that OHA order OIG to expedite the issuance of a determination.

It Is Therefore Ordered That:

(1) The Appeal filed by Diane Larson on January 16, 1998, is hereby dismissed to the extent that it requests the Office of Hearings and Appeals to order the Office of Inspector General to expedite the processing of the Appellant's request under the Privacy Act, and in all other respects 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 5 U.S.C. § 552a(g)(1)(B) and (g)(5). 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: February 17, 1998

(1)Although the Appellant requested later that DOE search for additional documents, this Appeal relates only to matters that were requested in the original Privacy Act request.

(2)In her Privacy Act request, the Appellant asked for records from the OIG regarding Case No. I-96RS154. The Appellant had previously filed a FOIA request for these records, but this request was denied on the grounds that these documents were exempt from disclosure under Exemption 7(A) of the FOIA because release of these documents "could reasonably be expected to interfere with enforcement proceedings." 5 U.S.C.§552(b)(7)(A). On October 10, 1997, after the Appellant had requested these records under the Privacy Act , the Director of the Headquarters FOIA Office wrote a letter to the Appellant stating that the law enforcement proceeding had been completed, and that "every effort will be made to process your request as quickly as possible."

(3)The Intelligence Analyst further explained that DOE-81 contains, among other things, analytical reports, travel reports, and reports on foreign contacts of certain current and former DOE and contractor employees, and that DOE-84 contains reports that relate to investigations of counter-intelligence matters. He indicated that although these two systems of records were created in 1994, they both encompass records that have been in existence since 1991.

(4)In support of her argument that the search performed by the Office of Energy Intelligence was inadequate, the Appellant indicated that responsive records may be located in the Albuquerque Operations Office (Albuquerque). However, the determination that is the subject of this Appeal was issued by the Office of Energy Intelligence, a Headquarters office, and not by Albuquerque. We understand, however, that the Headquarters FOIA Office is in the process of officially forwarding the Appellant’s Privacy Act request to Albuquerque, and will ask Albuquerque to issue a determination directly to the Appellant. See Memorandum of Telephone Conversation between Tonya Woods and Linda Lazarus (February 13, 1998).