Case No. VFA-0413, 27 DOE ¶ 80,142

June 1, 1998

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Gary S. Foster

Date of Filings: May 4, 1998

Case Numbers: VFA-0413

VFA-0414

VFA-0415

VFA-0416

VFA-0417

On May 4, 1998, Gary S. Foster (Foster) filed five Appeals with the Office of Hearings and Appeals (OHA) of the Department of Energy (DOE) in response to five determinations that DOE’s Oak Ridge Operations Office (DOE/OR) issued to him on April 6, 1998. Those determinations concerned five requests for information that Foster 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 Appeals were granted, DOE/OR would be required to conduct a further search for responsive material.

I. Background

Foster, according to his Appeals, is an employee at DOE/OR’s Y-12 manufacturing facility who suffers from chronic beryllium disease. Foster contends that his disease was caused by exposure to beryllium that was used in Y-12 machining operations in the past. Letters from Foster to Director, OHA (May 4, 1998) (Appeals). On February 7, 1998, Foster submitted six FOIA requests to DOE/OR. In five of these requests, Foster asked for all documents relating to any beryllium transaction between DOE and any of the following five companies: Ceradyne, Cercom Quality Products, Loral American Beryllium (also known as Lockheed Martin Beryllium), General Ceramics (also known as National Beryllium) and Eagle-Picher. Letters from Foster to Amy Rothrock, FOIA Officer, DOE/OR (February 7, 1998). These companies supplied beryllium to DOE/OR for use in machining. In the sixth request, Foster asked for copies of DOE-required reports pertaining to beryllium that were generated by General Ceramics from 1949 through 1998. Id. DOE/OR promptly located material responsive to the sixth request, and forwarded those documents to Foster. However, DOE/OR could not find any responsive documents relating to the first five requests.

Letters from DOE/OR to Foster (April 6, 1998). On May 4, 1998, Foster filed the present Appeals, challenging the adequacy of DOE/OR’s search with regards to his first five requests.

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 Appeals, we contacted DOE/OR to ascertain the scope of the search it performed for the responsive documents. The DOE/OR FOIA Officer informed us that, in response to an April 1997 discovery request stemming from litigation against the agency, all DOE/OR employees had searched for beryllium documents and forwarded all responsive material to the FOIA office. DOE/OR declassified the responsive documents and compiled them into a discovery response, a copy of which was sent to the DOE/OR public reading room. Upon receipt of Foster’s request, the FOIA officer reviewed the index of beryllium documents in the reading room and released several documents that were responsive to the sixth request. In addition, the FOIA Officer informed us that she also searched 3 boxes of beryllium information located in her office awaiting indexing and transfer to the reading room.(1) Thus, according to the FOIA Officer, all offices in DOE/OR have disclosed any relevant beryllium documents in their possession. Memorandum of Telephone Conversation between Amy Rothrock, DOE/OR FOIA Officer, and Valerie Vance Adeyeye, OHA Staff Attorney (May 18, 1998).

We find that DOE/OR conducted a search reasonably calculated to uncover all beryllium-related documents in that office. All employees were directed to disclose relevant documents to the FOIA office in 1997, and these documents were sent to the reading room. The FOIA Officer did not request a new search because beryllium operations were discontinued at DOE/OR prior to 1997 and there have been no new beryllium-related transactions (and thus no new documents created) between DOE and the named companies since then. The FOIA Officer stated that she located the responsive material related to General Ceramics/National Beryllium in the reading room. Thus, it was reasonable for the FOIA Officer to search the public reading room for documents responsive to Foster’s request. As stated above, the FOIA does not require an exhaustive search, only a reasonable one. On the basis of the facts provided above, we find that DOE/OR conducted a search reasonably calculated to uncover responsive documents. Accordingly, we must deny Foster’s Appeals.

It Is Therefore Ordered That:

(1) The Appeals filed on May 8, 1998 by Gary S. Foster, OHA Case Nos. VFA-0413, VFA-0414, VFA-0415, VFA-0416, and VFA-0417, are 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: June 1, 1998

(1)These documents required more complex processing than the other beryllium-related material, and thus were still being processed at the time of Foster’s request.