Case No. VFA-0431, 27 DOE ¶ 80,155

August 17, 1998

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Hanford Education Action League

Date of Filing: July 24, 1998

Case Number: VFA-0431

On July 24, 1998, the Hanford Education Action League (HEAL) filed an Appeal from a determination issued on June 22, 1998, by the Department of Energy’s Richland Operations Office (DOE/RL). 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 DOE/RL’s search for documents responsive to its request.

I. Background

On June 23, 1992, the Appellant requested from the DOE a number of specific documents “relating to the operations of the Department of Energy’s Hanford facility near Richland, Washington.” In Item 2 of the request, HEAL sought copies of “[a]ll volumes of the ?Manager’s Data Book,’ 1944-1954.” Letter from James P. Thomas, Research Director, HEAL to Yvonne Sherman, FOI Officer, DOE/RL (June 23, 1992). DOE/RL issued a determination on June 22, 1998, by which it released documents responsive to Item 2 of HEAL’s request. Letter from Karen K. Randolph, Director, Office of External Affairs, DOE/RL, to James P. Thomas (June 22, 1998). On July 24, 1998, HEAL filed the present appeal stating that the DOE “did not provide all responsive records. . . . The Department should conduct a more extensive search for responsive records. . . . [T]he Department should also provide a listing of all document repositories searched as well as documentation for any records that have been destroyed.” Appeal at 1.

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).

Accordingly, after receiving HEAL’s Appeal, we contacted DOE/RL to find out about the search it conducted in response to HEAL’s request. DOE/RL informed us that it was able to locate documents responsive to Item 2 of HEAL’s request (for Manager’s Data Books, 1944-1954) through two sources. The first source is a Records Inventory and Disposition Schedule (RIDS). By consulting RIDS, DOE/RL can determine whether documents have been disposed of, and if not, where the documents would be located. In this instance, the RIDS schedule identified, by document number, specific records that were responsive to Item 2 of HEAL’s request. The schedule indicated that the documents had not been destroyed and would be located in boxes numbered 1063 and 1064 in DOE/RL’s records holding area. The second source of information on the location of responsive documents was a database called DDTS (Declassified Document Tracking System), which tracks Richland’s classified and previously classified documents. Queries of this database can be done by document number, title, authors’ last name, and certain keywords. Personnel in the records holding area performed a query of the database, the results of which referred to the same specific documents listed on the RIDS schedule, and indicated that they would be located in the same boxes numbered 1063 and 1064. DOE/RL found the documents that the RIDS schedule and DDTS query results identified, Manager’s Data Books dated from 1949 forward, in these boxes. With the exception of two documents discussed below, DOE/RL eventually released these documents to the Appellant. Memorandum of telephone conversation between Dorothy Riehle, Office of External Affairs, DOE/RL, and Steve Goering, Office of Hearings and Appeals (OHA) (August 3, 1998).

In its Appeal, HEAL stated that DOE “did not provide at least two responsive documents: (1) HAN-25408 ½ (volumes 1, 2, and 3) and (2) the Manager’s Data Book for 1950.” DOE/RL has informed us that these two documents were among those specifically identified as responsive in its search described above, which was conducted shortly after HEAL’s request was received in 1992, and that shortly thereafter these documents were sent to a DOE/RL classification officer for review. However, these two documents did not make their way through the lengthy process of review for classified information, and therefore were not among those that DOE/RL released in its June 22, 1998 determination. DOE/RL states, and we have no reason to doubt, that it believed at the time that it was releasing all identified responsive documents in its determination. After we received the present Appeal, with its reference to these two documents, and forwarded a copy of the Appeal to DOE/RL, records holding personnel at DOE/RL located the two documents in the same boxes where they had originally been found. These documents are now being reviewed and will be released to the Appellant with, if necessary, exempt information withheld.

HEAL also contends in its Appeal that, although the documents Richland released generally include one book for each year of the relevant period, “there may have been two data books per year. Among the documents received thus far, there are two versions of the 1951 Construction Data Book (June and November) as well as two data books for 1952 (June and December).” Appeal at 1. The Appellant states that,

[a]fter more detailed analysis of the publicly available data books, I am beginning to understand why there were likely two data books for each year. I think that the Manager's Data Books were Richland's official submittal to headquarters for the purpose of headquarters compiling the mandated AEC semi-annual reports to Congress.

Therefore, it is reasonable to conclude that there would be additional copies of Hanford's data books at headquarters.

Electronic mail from Jim Thomas, HEAL, to Steven Goering, OHA (August 4, 1998).

First, regarding the two responsive documents that DOE/RL did not provide to the appellant, we do not find that the apparently inadvertent failure of DOE/RL to release these two documents reflects negatively on DOE/RL’s search. The two documents were, in fact, specifically identified as responsive in that search, but for reasons unrelated to the search were not released to HEAL on June 22, 1998. Second, while the Appellant may be correct that there were Manager’s Data Books created that were not among those located in the search at DOE/RL, this possibility alone does not undermine the adequacy of DOE/RL’s search. As we stated above, "[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). The point the Appellant raises does, however, suggest that there may be additional responsive documents at DOE Headquarters. We will therefore remand this matter to the Freedom of Information and Privacy Group at DOE Headquarters (FOI and Privacy Group) for a search for responsive documents in headquarters offices.

Based on our review of the particulars of DOE/RL’s search as set forth above, we find that DOE/RL took steps reasonably calculated to uncover the documents sought by the Appellant. DOE/RL personnel consulted presumably reliable sources to determine where responsive documents would be, and these sources led DOE/RL to a location where it found those documents. There is no information of which we are aware that would point to other locations at DOE/RL where additional responsive documents might exist,(1) and the FOIA clearly does not require DOE/RL to conduct an exhaustive search through all of its document holdings to make certain that it has no other documents responsive to the Appellant’s request. We therefore find that DOE/RL’s search was adequate to meet the requirements of the FOIA. In this respect, the present Appeal will be denied, but we will grant the Appeal to the extent that we are remanding the matters to the FOI and Privacy Group for a search of DOE Headquarters offices.

It Is Therefore Ordered That:

(1) The Freedom of Information Act Appeal filed by the Hanford Education Action League, Case Number VFA-0431, is hereby granted as set forth in paragraph (2) below, and denied in all other respects.

(2) This matter is hereby remanded to the DOE’s FOI and Privacy Group, which shall conduct a search of DOE Headquarters offices for documents responsive to Item 2 of the Appellant’s June 23, 1992 request, and release to the Appellant any responsive documents, or explain in detail its reasons for withholding responsive documents with reference to one or more FOIA exemptions.

(3) 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: August 17, 1998

(1) In considering the present Appeal, we discussed with the Appellant the possibility that DOE/RL’s search should have included a specific search of the Counsel’s Office at DOE/RL, because the documents at issue relate to matters currently in litigation. We have discussed this with DOE/RL, and we are convinced that a specific search of the DOE/RL’s Counsel’s Office is not required before we can deem the search adequate under the FOIA. First, DOE/RL pointed out to us that HEAL’s 1992 request, and the search that was conducted shortly thereafter, predates the litigation in question. Further, even if the Counsel’s Office had responsive documents in its possession at that time, those documents would have been identified by DOE/RL’s reference to the RIDS schedule and the DDTS database, both of which are comprehensive enough to encompass any documents that would be responsive to HEAL’s request.