Case No. VFA-0461, 27 DOE ¶ 80,178

January 6, 1999

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: David G. Swanson

Date of Filing: November 30, 1998

Case Number: VFA-0461

On November 30, 1998, David G. Swanson filed an Appeal from a determination issued to him on November 13, 1998, by the Office of Inspector General (IG) of the Department of Energy (DOE). That determination responded to a request for information he 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. Mr. Swanson challenges the adequacy of IG's search for documents responsive to his request.

I. Background

On September 17, 1998, Mr. Swanson filed a request for information in which he sought "a copy of all information available on the investigation of PDI Technology, Inc. of Chino, CA by your [IG's] office, including any final report." On November 13, 1998, IG issued a determination which stated that it was releasing 14 documents in response to Mr. Swanson's request. See Determination Letter at 1. However, IG indicated that portions of 13 documents were withheld pursuant to Exemption 6 and 7(C) of the FOIA.

On November 30, 1998, Mr. Swanson filed the present Appeal with the Office of Hearings and Appeals. In his Appeal, Mr. Swanson challenges the adequacy of the search conducted by IG. Specifically, Mr. Swanson contends that the information provided failed to include an interview of him conducted at the "Livermore Inspector General's Office." Mr. Swanson asserts that this interview is related to the investigation of PDI Technology and should have been included in the responsive documents released to him. See Appeal Letter.

II. Analysis

The FOIA requires that documents held by federal agencies generally be released to the public upon request. Following an appropriate request, agencies are required 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., Hideca

Petroleum Corp., 9 DOE ¶ 80,108 (1981); Charles Varon, 6 DOE ¶ 80,118 (1980). In cases such as these, "[t]he issue is not whether any further responsive documents might conceivably exist but rather whether the government's search for responsive documents was inadequate." 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, 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 present Appeal, we contacted officials at IG to ascertain the extent of the search that had been performed and to determine whether any other documents responsive to Mr. Swanson's request might exist. Upon receiving Mr. Swanson's request for information, IG instituted a search of its files. Specifically, IG searched its Management Information System, an automated tool used for recording and tracking information relevant to IG investigative work, by providing it with all of the relevant terms associated with Mr. Swanson's request. Based on this search, IG produced 14 relevant records that were responsive to Mr. Swanson's request. These records were provided to Mr. Swanson with redactions. IG has informed us that this search did not produce an interview of Mr. Swanson as described in his Appeal and that this interview would not have been found in a search related to the PDI investigation, but possibly in a search concerning Mr. Swanson. See December 22, 1998 Record of Telephone Conversation between Pam Langer, IG and Kimberly Jenkins- Chapman, OHA.(1) Given the facts presented to us, we find that IG conducted an adequate search which was reasonably calculated to discover documents responsive to Mr. Swanson's request. Therefore, we must deny this Appeal.

It Is Therefore Ordered That:

(1) The Appeal filed by David G. Swanson, OHA Case No. VFA-0461, on November 30, 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 the provisions of 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: January 6, 1999

(1)Even though IG's search did not locate the transcript of the interview described in Mr. Swanson's Appeal, Mr. Swanson may file a new request with IG if he wants this information.