McGraw-Hill Companies, Case NO. VFA-0398, April 28, 1998

Case No. VFA-0398, 27 DOE ¶ 80,133

April 28, 1998

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: McGraw-Hill Companies

Date of Filing: March 31, 1998

Case Number: VFA-0398

On March 31, 1998, the Office of Hearings and Appeals (OHA) of the Department of Energy (DOE) received an Appeal filed by McGraw-Hill Companies (hereinafter referred to as “McGraw-Hill” or “the appellant”) from a determination that the Office of Civilian Radioactive Waste Management (OCRWM) issued to it. The OCRWM issued this determination in response to a request for information that McGraw-Hill submitted in accordance with the provisions of the Freedom of Information Act (FOIA), 5 U.S.C § 552, as implemented by the DOE in 10 C.F.R. Part 1004. The Appeal, if granted, would require the OCRWM to conduct a further search for responsive materials.

I. Background

In its FOIA request, McGraw-Hill sought access to any “correspondence and records of exchange between the [OCRWM], General Electric Co. and any other utilities or nuclear-related companies ... regarding the possible use of GE’s Morris Operations facility ... for the interim storage of commercial utilities’ spent fuel.” FOIA Request at 1. In a letter to the appellant dated February 27, 1998, the OCRWM stated that it had searched its files and had found no documents responsive to McGraw-Hill’s request.

In its appeal, McGraw-Hill claims that OCRWM has failed to conduct an adequate search. The appellant asserts that OCRWM personnel have met “on more than one occasion” with a representative of a waste transport company, and that there should be some record of those meetings. In addition, McGraw-Hill points out that if the DOE has contracted for any work on the subject of waste storage at the Morris facility, the contractor might possess responsive documents.(1)

II. Analysis

The FOIA requires that an agency “conduct a search reasonably calculated to uncover all relevant documents.” Truitt v. Department of State, 897 F.2d 540, 542 (D.C. Cir. 1990) (Truitt). “The standard of reasonableness which we apply to agency search procedures does not require absolute exhaustion of files; instead, it requires a search reasonably calculated to uncover sought materials.” Miller v. Department of State, 779 F.2d 1378, 1384-85 (8th Cir. 1985); accord Truitt, 897 F.2d at 542. The fact that the results of a search may not meet with the requester’s expectations does not necessarily mean that the search was inadequate. Robert Hale, 25 DOE ¶ 80,101 at 80,501 (1995). Instead, in evaluating the adequacy of a search, our inquiry generally focuses on the scope of the search that was performed. See, e.g., Richard J. Levernier, 25 DOE ¶ 80,102 (1995).

We contacted OCRWM to ascertain the scope of the search for responsive documents that was performed. We were informed that the search included the Offices of Human Resources and Administration, Program Management and Integration and Waste Acceptance, Storage and Transportation. Furthermore, we were informed that OCRWM also searched for any memoranda or other documents referring to the correspondence and records of exchange requested by the appellant. See memorandums of April 24, 1998 telephone conversations between Robert Palmer, OHA Staff Attorney, and David Zabransky and Susan Showard, OCRWM. Based on the record in this case, we find that OCRWM’s search was reasonably calculated to uncover sought materials and was therefore adequate.

We find the appellant’s arguments to the contrary to be unpersuasive. As an initial matter, the fact that OCRWM personnel may have met with a representative of a waste transport company does not mean that records of those meetings exist or that any such records would be responsive to McGraw-Hill’s request. Furthermore, we have been informed that the DOE has not entered into any contract for the use of the Morris facility for spent fuel storage. Id. Therefore, the record in this matter does not support the appellant’s claim that responsive documents might be located in the files of a DOE contractor. For the reasons set forth above, we conclude that OCRWM’s search for responsive documents was adequate, and that McGraw-Hill’s appeal should be denied.

It Is Therefore Ordered That:

(1) The Appeal filed by the McGraw-Hill Companies on March 31, 1998 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. § 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 located, or in the District of Columbia.

George B. Breznay

Director

Office of Hearings and Appeals

Date: April 28, 1998

(1)The appellant also implies that the OCRWM may have intentionally withheld responsive documents, stating that an unnamed representative of a “nuclear-related company” predicted to the appellant that no records would be found. Appeal at 1. In the absence of information concerning the identity of the representative, the circumstances surrounding the statement, and the representative’s basis for making the statement, we attribute absolutely no weight to this implication.