Case No. VFA-0396, 27 DOE ¶ 80,127

April 15, 1998

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner:Jones, Walker, Waechter, Poitevent, Carrère & Denègre, L.L.P.

Date of Filing:March 23, 1998

Case Number: VFA-0396

On March 23, 1998, Jones, Walker, Waechter, Poitevent, Carrère & Denègre, L.L.P. (Appellant), filed an Appeal from a determination issued to it on February 17, 1998, by the Rocky Flats Field Office (RFFO) of the Department of Energy (DOE). That determination denied 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 consider whether the DOE must conduct a further search for documents responsive to the Appellant’s FOIA request.

I. Background

On December 2, 1997, the Appellant filed a request under the FOIA with DOE’s Federal Energy Technology Center (FETC) in which it sought documents related to Request for Proposal (RFP) No. A66343. The request included documents related to the bidding process as well as documents related to the contract that the Appellant presumed was awarded under the RFP. On January 21, 1998, FETC issued a determination to the Appellant. FETC stated that the contract was being issued through RFFO and therefore the request was being forwarded to that office. On February 17, 1998, RFFO issued its determination, stating that it could not locate any responsive documents. On March 23, 1998, the Appellant filed the present Appeal in which it contends that RFFO’s search for documents was inadequate and that RFFO should search the records of the Rocky Flats site’s management and operating contractor, Kaiser-Hill Company (Kaiser-Hill), and release any responsive documents it locates.

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 RFFO to determine how the search had been conducted. We learned that RFP No. A66343 was originally issued by a contractor, MSE, under the auspices of FETC, in order for MSE to hire a subcontractor to perform installation services at the Rocky Flats site. However, no contract was ever awarded because of internal DOE issues that arose between RFFO and FETC. Therefore, there are no documents concerning any awarded contract for RFP No. A66343. Moreover, RFFO possesses no responsive documents because it never performed oversight functions for the RFP at issue. The DOE entity overseeing this RFP was FETC, not RFFO. See Record of Telephone Conversation between John Drager, Office of Chief Counsel, RFFO, and Dawn L. Goldstein, Staff Attorney, OHA (March 31, 1998).

The Appellant also asserts that Kaiser-Hill possesses responsive documents. We learned that although Kaiser-Hill possessed no responsive documents as of the request date, it came into possession of some responsive documents afterwards. See Record of Telephone Conversation between John Drager and Dawn L. Goldstein (April 1, 1998). Under the FOIA, the search RFFO was required to conduct was only for documents possessed as of the date of the request. See Thomas P. Koenigs, 26 DOE ¶ 80,131 at 80,576-77 (1996). In light of the scope of RFFO’s search and its explanation that it did not oversee the RFP at issue, we find that its search was adequate. However, if the Appellant wishes, it may file a new request with RFFO for documents Kaiser-Hill received after the date of the Appellant’s request.(1)

It Is Therefore Ordered That:

(1) The Appeal filed by Jones, Walker, Waechter, Poitevent, Carrère & Denègre, L.L.P. on March 23, 1998, Case Number VFA-0396, 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: April 15, 1998

(1)*/ As the overseeing DOE entity for the RFP at issue, the Federal Energy Technology Center, possesses records which are responsive to the portions of the request concerning the bidding process. See Record of Telephone Conversation between John Drager, Office of Chief Counsel, RFFO, and Dawn L. Goldstein, Staff Attorney, OHA (March 31, 1998); Record of Telephone Conversation between Ann C. Dunlap, FOIA Officer, FETC, and Dawn L. Goldstein (March 24, 1998); Record of Telephone Conversation between Mary Hammack, FOIA Officer, RFFO, and Dawn L. Goldstein (March 23, 1998). FETC has recently issued a second determination to the Appellant regarding only these records, which is not the subject of this Appeal. See Record of Telephone Conversation between Ann Dunlap and Dawn L. Goldstein (April 1, 1998).