Case No. VFA-0420, 27 DOE ¶80,146

June 17, 1998

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Goodell, Stratton, Edmonds & Palmer, L.L.P.

Date of Filing: May 22, 1998

Case Number: VFA-0420

On May 22, 1998, Goodell, Stratton, Edwards & Palmer, L.L.P., filed an Appeal from a determination issued on April 21, 1998, by the Department of Energy’s Southwestern Power Administration (SWPA). The determination responded to a request for information filed under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the Department of Energy (DOE) in 10 C.F.R. Part 1004. The Appellant challenges the adequacy of SWPA’s search for documents responsive to its request.

I. Background

On March 26, 1998, the Appellant requested from SWPA “any and all documents which reference anticipated frequency or time of use for all easements above Pensacola Dam along the Neosho/Grand River up to the Kansas line between elevation 750 and 760 ngvd [National Geodetic Vertical Datum, a standard used in the measurement of elevation from sea level].” Letter from N. Larry Bork, Goodell, Stratton, Edmonds & Palmer, L.L.P., to Marti Ayers, FOIA Officer, SPA (March 26, 1998). SWPA issued a determination on April 21, 1998, in which it stated that it had searched its records and located no documents responsive to the Appellant’s request. Letter from Michael A. Deihl, Administrator, SWPA, to N. Larry Bork (April 21, 1998).

II. Analysis

We have stated on numerous occasions that a FOIA request deserves a thorough and conscientious search for responsive documents, and we have not hesitated to remand a case where it is evident that the search conducted was in fact inadequate. See, e.g., Butler, Vines and Babb, P.L.L.C., 25 DOE ¶ 80,152 (1995). The FOIA, however, requires that a search be reasonable, not exhaustive. "[T]he 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 Weisberg v. Department of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984). In cases such as these, "[t]he issue is not whether any further documents might conceivably exist but rather whether the government's search for responsive documents was adequate." Perry v. Block, 684 F.2d 121, 128 (D.C. Cir. 1982) (emphasis in original).

According to the Appellant, the federal government, through various agencies, operated the Pensacola Dam between November 1941 and September 1946, after which control was returned to an Oklahoma state agency. Letter from N. Larry Bork to Fred Romanski, National Archives (April 30, 1998). The Appellant further asserts that, during the period of federal control, SWPA was responsible for the acquisition of flowage easements in connection with the operation of the dam.(1)

In responding to the Appellant’s request, the SWPA FOIA Officer contacted the Realty Officer within SWPA’s Division of Acquisition and Property, which was unable to locate any responsive documents. The Realty Officer subsequently informed the FOIA Officer that, “[s]ince disposition of land ownership records is based on disposition of the land, most likely the records related to those acquisitions were disposed of several years ago.” Electronic mail from Linda Saults, Realty Officer, Division of Acquisition and Property, SWPA, to Marti Ayers, FOIA Officer, SWPA (May 11, 1998). Subsequent to the filing of the present Appeal, the SWPA FOIA Officer received responses from SWPA’s Division of Engineering and Planning and Division of Scheduling and Operations indicating that neither division possessed documents responsive to the Appellant’s request. Electronic mail from Ken Legg, Director, Division of Engineering and Planning, SWPA, to Marti Ayers (May 11, 1998); Electronic mail from Jerry Johnson, Director, Division of Scheduling and Operations, SWPA, to Marti Ayers (May 11, 1998). If responsive documents are still in the possession of SWPA, the divisions which the FOIA Officer consulted appear to us to be those within SWPA where such documents would likely be located.

SWPA also gave the Appellant access to the Federal Records Center in Fort Worth, Texas, authorizing the Appellant “to personally inspect and copy [SWPA] records pertaining to Grand Lake/Neosho River/Pensacola Dam, except documents and files, if any, identified as privileged attorney client communications.” Letter from Laurence Yadon, Chief Counsel, SWPA, to Pete Scholls, Federal Records Center (March 31, 1998). The Appellant informed SWPA that his inspection revealed no documents responsive to his request.

We find that the search for responsive documents coordinated by the SWPA FOIA Officer extended to the Divisions within SWPA where she reasonably believed those documents would be located if those documents still exist and were in the possession of SWPA. We therefore conclude that SWPA’s search was reasonably calculated to uncover the documents the Appellant sought. Accordingly, the present Appeal will be denied.

It Is Therefore Ordered That:

(1) The Freedom of Information Act Appeal filed by Goodell, Stratton, Edwards & Palmer, L.L.P., Case Number VFA-0420, 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 situated, or in the District of Columbia.

George B. Breznay

Director

Office of Hearings and Appeals

Date: June 17, 1998

(1) Id. The functions of the SWPA were transferred from the Department of the Interior to the DOE upon the establishment of the DOE by the Congress in 1977. 42 U.S.C. § 7152(a)(1)(B).