Case No. VFA-0452, 27 DOE ¶ 80,171

November 13, 1998

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Ashok Kaushal

Date of Filing: October 19, 1998

Case Number: VFA-0452

On October 19, 1998, Ashok Kaushal filed an Appeal from a determination issued on October 6, 1998, by the Department of Energy’s Albuquerque Operations Office (DOE/AL). The determination responded to a request for information filed under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a, as implemented by the Department of Energy (DOE) in 10 C.F.R. Parts 1004 and 1008.

I. Background

On April 28, 1997, Mr. Kaushal requested, under the FOIA and Privacy Act, information related to a whistleblower complaint he filed against Sandia National Laboratories (SNL). Specifically, Mr. Kaushal sought

(a) a copy of the investigation report and all documents, memoranda, letters, data, [that] has been collected by DOE/ [Office of Contractor Employee Protection] office regarding this matter; (b) a copy of response filed by Sandia National Labs; (c) a copy of the audit report prepared by Martin Marietta Corporation auditors; (d) a copy of the documents indicating [Sandia] Auditing Department costs in compiling this information; (e) a copy of the documents identifying legal costs incurred by [Sandia] including costs paid to Bob Bosser, Martin Marietta auditors; (f) a copy of documents identifying legal costs incurred by [Sandia] Legal Department and outside legal staff; (g) a copy of documents identifying other legal costs incurred pertaining to my [whistleblower complaint] and . . . my complaint filed with the Equal Employment Opportunity Commission.

Letter from Ashok Kaushal to GayLa Sessoms, DOE (April 23, 1997). In addition, Mr. Kaushal asked the DOE to “identify the Privacy Act system of records that contain this information.” Id. Mr. Kaushal’s request, which was sent to the Freedom of Information and Privacy Act Office at DOE Headquarters, was referred to the DOE’s Office of Inspector General and DOE/AL. Memorandum of telephone conversation between Carolyn Becknell, DOE/AL, and Steve Goering, OHA (October

23, 1998).

DOE/AL issued a determination on October 6, 1998, in which it released 26 records in their entirety in response to item (a) of the Mr. Kaushal’s request, released two records with information deleted that DOE/AL found was exempt from release under the FOIA in response to items (b) and (c) of the request, and stated “in reference to portions (d) through (g) of your request, no records exist because the costs are not tracked separately because these legal costs are included in the cost of doing business. Therefore, there are no responsive records to these portions of your request.” Letter from David L. Geary, DOE/AL, to Ashok Kaushal (October 6, 1998). Finally, DOE/AL informed Mr. Kaushal that in “reference to identifying the Privacy Act System of Records (SOR) that contain this information, none of the responsive records are indexed by a SOR.” Id. (1)

On October 19, 1998, Mr. Kaushal filed the present appeal, stating, “This is to respond to a letter of October 6, 1998. I file an appeal and seek the information, which you have denied me.” Appeal at 1. Mr. Kaushal then listed in his Appeal the information he is seeking by essentially restating items (a), (e), and (f) from his April 23, 1997 request. Id. Because the appellant specifically stated which items of his request are the subject of his appeal, this decision will only address DOE/AL’s response to items (a), (e), and (f) of Mr. Kaushal’s request.

II. Analysis

A. Item (a) of the Appellant’s Request

As noted above, DOE/AL released to Mr. Kaushal 26 records in their entirety responsive to his request for “a copy of the investigation report and all documents, memoranda, letters, data, [that] has been collected by DOE/ [Office of Contractor Employee Protection] office regarding this matter.” In addition, DOE/AL stated in its determination,

In reference to the portion of (a) referencing the investigation report, [DOE/AL’s Management Review Division, the DOE’s Kirtland Area Office], and the Sandia National Laboratories (SNL) do not have in their possession a copy of the requested investigation report prepared by the DOE Office of Contractor Employee Protection. Therefore, no responsive record is provided. This portion will be responded to by the [Office of Inspector General (OIG) at DOE Headquarters] in Washington, D.C. [DOE/AL] has discussed this portion with the OIG and they will correspond directly with you.

Though the appellant does not state specifically in his appeal what information responsive to Item (a) of his request he is being denied by DOE/AL, the only responsive document identified by DOE/AL that was not provided to Mr. Kaushal is the investigation report prepared by the Office of Contractor Employee Protection (OCEP). However, DOE/AL has informed Mr. Kaushal that he will be receiving a response to his request for the investigation report from the OIG.

Section 1004.8(a) of the DOE Regulations states that the OHA has jurisdiction to consider Freedom of Information Act Appeals “[w]hen the Authorizing Officer has denied a request for records in whole or in part or has responded that there are no documents responsive to the request . . . or when the Freedom of Information Officer has denied a request for waiver of fees.” 10 C.F.R. § 1004.8(a). Because the OIG is responsible for issuing a determination in response to the appellant’s request for the investigation report, and because the OIG has not yet issued its determination, the DOE has not denied the Appellant’s request for the investigation report. After the OIG has responded to Mr. Kaushal’s request, he will have the right to file an appeal of the withholding of any records responsive to item (a) of his request. In addition, after receiving the OIG’s determination, Mr. Kaushal can appeal the adequacy of the DOE’s (both DOE/AL’s and the OIG’s) search for responsive documents. At this point, however, the DOE’s response to item (a) of the Appellant’s request is beyond the scope of our jurisdiction and the present Appeal.

B. Items (e) and (f) of the Appellant’s Request

In items (e) and (f) of his request, the appellant sought “a copy of the documents identifying legal costs incurred by [Sandia] including costs paid to Bob Bosser, Martin Marietta auditors” and “a copy of documents identifying legal costs incurred by [Sandia] Legal Department and outside legal staff.” Letter from Ashok Kaushal to GayLa Sessoms, DOE (April 23, 1997). The costs to which the Appellant’s letter refers are those incurred in responding to the whistleblower and EEO complaints he filed against SNL. DOE/AL responded that “no records exist because the costs are not tracked separately because these legal costs are included in the cost of doing business. Therefore, there are no responsive records to these portions of your request.”

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).

After receiving Mr. Kaushal’s Appeal, we contacted DOE/AL to obtain additional information regarding its search for documents responsive to items (e) and (f) of the appellant’s request. DOE/AL informed us that it consulted SNL and learned that SNL had reached a settlement agreement regarding Mr. Kaushal’s complaints, and that the entire matter was handled by in-house counsel for SNL. Memorandum of telephone conversation between Carolyn Becknell, DOE/AL, and Steven Goering, OHA (October 22, 1998). As such, SNL states that it maintained no separate accounting of its costs related to this case. Id. We find that DOE/AL took steps reasonably calculated to uncover the documents sought by the appellant. Beyond contacting the appropriate personnel at SNL and finding out why no documents such as those sought by Mr. Kaushal would have been created by SNL, we cannot imagine what other reasonable steps DOE/AL could have taken in response to the appellant’s request. We therefore will deny the present Appeal.

It Is Therefore Ordered That:

(1) The Freedom of Information Act Appeal filed by Ashok Kaushal on October 19, 1998, Case Number VFA-0452, 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: November 13, 1998

(1) As implied by the issues raised in Mr. Blanco’s Appeal, the Privacy Act also imposes certain requirements on government agencies in their use of personal information, including limitations on disclosure to third parties. However, the appeal authority of the OHA under the DOE Privacy Act regulations extends only to the review of determinations issued in response to requests by individuals for access to records or amendment of records. 10 C.F.R. § 1008.11(a). Moreover, in Mr. Blanco’s original request to BPA, he did not seek to amend records, but rather requested only access to records under the Privacy Act. Thus, only the first issue raised by Mr. Blanco, relating to his right to access particular records, is within the scope of the present Appeal.

(2) As implied by the issues raised in Mr. Blanco’s Appeal, the Privacy Act also imposes certain requirements on government agencies in their use of personal information, including limitations on disclosure to third parties. However, the appeal authority of the OHA under the DOE Privacy Act regulations extends only to the review of determinations issued in response to requests by individuals for access to records or amendment of records. 10 C.F.R. § 1008.11(a). Moreover, in Mr. Blanco’s original request to BPA, he did not seek to amend records, but rather requested only access to records under the Privacy Act. Thus, only the first issue raised by Mr. Blanco, relating to his right to access particular records, is within the scope of the present Appeal.