Case No. VFA-0465, 27 DOE ¶ 80,180

January 12, 1999

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner:McKenna & Cuneo, L.L.P.

Date of Filing:December 10, 1998

Case Number: VFA-0465

On December 10, 1998, McKenna & Cuneo, L.L.P. (McKenna) filed an Appeal from a determination the Acting Manager of the Chicago Operations Office (Acting Manager) of the Department of Energy (DOE) issued to the firm on November 12, 1998. In that determination, the Acting Manager partially granted a June 15, 1998 request for information that McKenna filed under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004. The FOIA requires that a federal agency generally release documents to the public upon request. The FOIA, however, lists nine exemptions that set forth the types of information that a federal agency may withhold at its discretion. 5 U.S.C. § 552(b); 10 C.F.R. § 1004.10(b).

In McKenna's request for information, the firm sought copies of documents related to a DOE contract solicitation. In his determination, the Acting Manager released several responsive documents, but redacted labor rates, profit amounts, and indirect expense rates in accordance with 5 U.S.C. § 552(b)(4). The Acting Manager also withheld from release three pages of documents containing communications between the DOE Counsel and the Acquisition and Assistance Group pursuant to 5 U.S.C. § 552(b)(5). McKenna contends that the Acting Manager did not properly identify all of the documents he redacted and withheld. The firm states that several of the documents released to it indicate that other responsive pages or complete responsive documents exist. Without additional information to identify the pages or documents the Acting Manager redacted or withheld, McKenna argues that it is impossible to determine whether the Acting Manager properly withheld information pursuant to the FOIA.

Analysis

So that we may determine whether the Acting Manager properly identified all of the information responsive to McKenna's request, we must first verify whether the Acting Manager conducted a thorough search for all responsive information. 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).

We have also consistently held that the FOIA requires the authorizing official give reasonably informative descriptions of the documents or portions of documents being withheld that are sufficient to allow the requester to understand the determination and if appropriate to formulate a meaningful appeal. See, e.g., Klickitat Energy Partners, 25 DOE ¶ 80,132 (1995); Arnold & Porter, 12 DOE ¶ 80,108 at 80,527 (1984); Exxon Co., USA, 5 DOE ¶ 80,178 at 80,813 (1980); Cities Service Co., 5 DOE ¶ 80,101 at 80,502 (1980). Descriptions are generally adequate if each document is identified by a brief description of the subject matter it discusses and "if available, the date each document was produced [and] its authors and recipients. . . ." Klickitat Energy Partners, 25 DOE ¶ 80,132 (1995); Petroleum Delivery Service, 5 DOE ¶ 80,152 (1980). We have indicated that the "brief description" requirement is generally satisfied if sufficiently informative titles of the withheld documents are provided and that the descriptions need not contain factual information that would compromise the privileged nature of the documents. Klickitat Energy Partners, 25 DOE ¶ 80,132 (1995); P.A. Barnes, 5 DOE ¶ 80,112 at 80,538 (1980); Akin Gump, Hauer & Feld, 3 DOE ¶ 80,155 at 90,765 (1979).

McKenna states that documents the firm received from the Acting Manager indicate the possible existence of other responsive information. McKenna cites 11 examples where the firm believes that other responsive documents or portions of documents exist. In none of these 11 examples did the Acting Manager identify responsive information being withheld. These potentially responsive documents include specifically named documents, attachments referred to in letters or facsimile cover sheets, and missing numbered pages. McKenna also believes that circumstances dictate the existence of other responsive documents.

In reviewing the appeal, we contacted a representative of the Acting Manager to ascertain the validity of McKenna's contention that there must exist additional responsive information. We supplied the Acting Manager's representative with the additional information McKenna provided in its appeal. The Acting Manager's representative confirmed that at least one of these 11 examples of potentially responsive documents McKenna cites does exist and was not properly identified in the Acting Manager's response. See Record of January 8, 1999 Telephone Conversation between Leonard M. Tao, OHA Staff Attorney, and Kim Donham, Chicago Operations Office. The Acting Manager's representative is continuing to search for additional responsive information. Since the Acting Manager's initial search was incomplete and since the Acting Manager's determination did not include enough information to allow McKenna to reasonably understand the determination and formulate a meaningful appeal, we must remand this determination to the Acting Manager for a new search and a more informative description of any withheld information.

It Is Therefore Ordered That:

(1) The Appeal McKenna & Cuneo, L.L.P. filed on December 10, 1998, Case No. VFA-0465, is hereby granted as set forth in paragraph (2) below, and is denied in all other respects.

(2) This matter is hereby remanded to the Acting Manager of the Chicago Operations Office of the Department of Energy for a new search pursuant to McKenna & Cuneo, L.L.P.'s June 15, 1998 request for information and a reasonably informative description of the documents or portions of documents being withheld from this request for information that is sufficient to allow McKenna & Cuneo, L.L.P. to understand the Acting Manager's determination.

(3) This is a final Order of the Department of Energy of 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 either in the district where 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 12, 199