Case No. VFA-0426, 27 DOE ¶ 80,153

August 11, 1998

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner:Arnold Kramish

Date of Filing: July 17, 1998

Case Number: VFA-0426

On July 17, 1998, Arnold Kramish filed an appeal from a June 24, 1998 determination by the Acting Director of the FOIA/Privacy Act Division of the Office of the Executive Secretariat of the Department of Energy (DOE). In that determination, the Acting Director partially granted a request for information the Appellant filed under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented in 10 C.F.R. Part 1004. In his appeal, Mr. Kramish asks that we order a search for additional responsive documents.

I. Background

In his request for information, Mr. Kramish sought copies of all personnel records the DOE possesses concerning Robert and Charlotte Serber. In a June 24, 1998 letter, the Acting Director enclosed responsive information concerning Robert Serber. However, the Acting Director informed Mr. Kramish that he did not find any responsive information on Charlotte Serber.

In his appeal, Mr. Kramish states that several published books refer to the “Serber security records” from the August 5, 1948 Atomic Energy Commission (AEC) Personnel Security Board hearing in San Francisco involving Robert Serber. In addition, Mr. Kramish asserts that a July 12, 1948 Federal Bureau of Investigation (FBI) memorandum (a copy of which he enclosed in his appeal) confirms that the AEC possessed substantial security-related materials concerning Robert and Charlotte Serber. Mr. Kramish argues that it is improbable that security records and transcripts for this important case no longer exist. In his appeal, Mr. Kramish also requests a copy of the AEC information referenced in the July 12, 1948 FBI memorandum.

II. Analysis

Following an appropriate request, the FOIA requires agencies to search their records for responsive documents. 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). 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).

To determine whether an agency's search was adequate, we must examine its actions under a "standard of reasonableness." McGehee v. CIA, 697 F.2d 1095, 1100-01 (D.C. Cir. 1983), modified in part on rehearing, 711 F.2d 1076 (D.C. Cir. 1983). This standard "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). Furthermore, the determination of whether a search was reasonable is "dependent upon the circumstances of the case." Founding Church of Scientology v. National Security Agency, 610 F.2d 824, 834 (D.C. Cir. 1979).

In reviewing the appeal, we contacted a representative of the Acting Director to ascertain the validity of Mr. Kramish’s contention that there must exist additional responsive information. We supplied the Acting Director with the additional background information regarding the Serbers that Mr. Kramish provided in his appeal. The Acting Director used this material to conduct another search for responsive information in the Office of Nonproliferation and National Security and in the Office of the Executive Secretariat. The Acting Director confirmed that neither of these offices possess additional responsive information or a copy of the AEC information referenced in the July 12, 1948 FBI memorandum. We find that the Acting Director correctly searched all of the DOE offices that would likely have responsive information. Since neither of these two offices possess additional responsive information and we have no reason to believe that other DOE offices possess additional responsive information, we must deny Mr. Kramish’s appeal.

During our investigation of this appeal, we discovered the possibility that responsive records may exist at the National Archives and Records Administration (NARA). Specifically, the representative of the Acting Director informed us that responsive information may exist in “Box SI-4-1, Investigation of Clearance, Vol. 2, dated December 16, 1954" at NARA. Since this box appears to be in the possession of NARA and was not in the control of the DOE at the time of Mr. Kramish’s request, it is not a DOE record subject to a FOIA request at the DOE. See Department of Justice v. Tax Analysts, 492 U.S. 136, 144-45 (1989). However, Mr. Kramish is free to contact NARA directly to request copies of this information.

It Is Therefore Ordered That:

(1) The appeal filed by Arnold Kramish on July 17, 1998 is hereby denied.

(2) This is a final order of the Department of Energy from which any aggrieved party may seek judicial review. 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: August 11, 1998