Case No. VFA-0422, 27 DOE ¶ 80,149

July 6, 1998

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Karen Coleman Wiltshire

Date of Filing: June 5, 1998

Case Number: VFA-0422

On June 5, 1998, the Office of Hearings and Appeals (OHA) received a submission from Karen Coleman Wiltshire which completes the filing of her Freedom of Information Act (FOIA) Appeal. Ms. Wiltshire appeals from a determination that the Acting Director of the Department of Energy’s FOIA/Privacy Act Division issued to her on April 11, 1998. The Acting Director issued this determination in response to a request for information that Ms. Wiltshire submitted in accordance with the provisions of the 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 Acting Director to conduct a further search for responsive materials.

I. Background

In her request, Ms. Wiltshire sought access to information concerning (i) J.R. Brady, Deputy Director of Neuropsychiatry of the Walter Reed Army Institute of Research, (2) James Brennan, Armed Forces Radiobiology Research Institute, and (3) a specified study concerning thyroidal radioactive uptake evaluated by Bio- Science Labs of California. The Acting Director forwarded the request to the Office of Records, Research, Data and Access (ORRDA) of the Office of Environment, Safety and Health, which searched its files for responsive documents. The Acting Director informed Ms. Wiltshire that no such documents were located, and suggested that Ms. Wiltshire contact the Department of Defense (DOD) for assistance with her request.

In her Appeal, Ms. Wiltshire contests the adequacy of the search for responsive documents. Specifically, she states that she obtained her references to Messrs. Brady and Brennan and to radioiodine uptake studies through the Human Radiation Experiments Information Management System (HREX), an Internet-accessible database containing documents pertaining to experimental human

radiation exposure. (1) She claims that HREX is a DOE database, and that therefore the DOE should be in possession of documents that are responsive to her request.

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).

In order to evaluate the adequacy of the search, we contacted ORRDA. This Office maintains the records of the DOE’s Office of Human Radiation Experiments (OHRE). We were informed that all OHRE documents are available to the public through HREX, which was searched for documents responsive to Ms. Wiltshire’s request. See memorandum of June 19, 1998 telephone conversation between Robert Palmer, OHA Staff Attorney, and Cindy Shinbledecker, ORRDA. Some of the documents found contain references to Messrs. Brady and Brennan and to thyroidal radioiodine uptake research.

This does not, however, necessarily imply the existence of further records of this type in the DOE’s possession. The HREX database, which was designed and is maintained by Argonne National Laboratories, a DOE contractor, consists of documents that were obtained from the DOE, the DOD and various other federal agencies. The documents containing the references noted in Ms. Wiltshire’s request are DOD records, not DOE records, and they are not in the DOE’s custody. Id.; see also April 8, 1998 memorandum from Paul J. Seligman, Deputy Assistant Secretary for Health Studies, to the Acting Director. There is no evidence that DOE documents that are responsive to Ms. Wiltshire’s request exist, or that there are other such records from other agencies that are in the DOE’s possession. On the basis of the information before us, we conclude that the ORRDA’s search for responsive documents was reasonably calculated to uncover responsive documents, and was therefore adequate. Accordingly, we will deny Ms. Wiltshire’s Appeal.

It Is Therefore Ordered That:

(1) The Appeal filed by Karen Coleman Wiltshire on June 5, 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:July 6, 1998

(1)The Internet address is http://hrex.dis.anl.gov