Case No. VFA-0466, 27 DOE ¶ 80,179

January 12, 1999

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Jennifer Kuehnle

Date of Filings: December 14, 1998

Case Numbers: VFA-0466

On December 14, 1998, Jennifer Kuehnle (Kuehnle) filed an Appeal with the Office of Hearings and Appeals (OHA) of the Department of Energy (DOE) in response to a determination that the DOE Oakland Operations Office (Oakland) issued to her on November 20, 1998. The determination concerned a request for information that Kuehnle submitted pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004. If the present Appeal were granted, Oakland would be required to conduct a further search for responsive material.

I. Background

In a letter to Oakland, Kuehnle requested three documents: (1) the draft version of "Production and Use of Beryllia Ceramics at Coors Ceramics Company," dated March 5, 1990; (2) the final version of the above document; and (3) pages 179-192 and 199-202 of "Final Operation Report of the Manufacture of Beryllia-Urania Fuel Elements for the Tory II-C Reactor," dated May 31, 1963. Letter from Kuehnle to Oakland (October 19, 1998). Oakland forwarded the request to the Lawrence Livermore National Laboratory (Livermore). The staff of the laboratory archives conducted an unsuccessful search of all classified and unclassified data bases in the archives. Letter from Livermore to Oakland (November 12, 1998). Livermore further stated that the documents did not carry any report numbers that would identify them as having been created in their organization, and that the 1990 document title referred to a project that was terminated at Livermore in the 1960s. Id. Consequently, Oakland sent Kuehnle a determination letter informing her that no responsive documents were found. Letter from Oakland FOIA Authorizing Official to Kuehnle (November 20, 1998). However, according to Kuehnle, the previous summer Oakland had released copies of portions of the requested documents to her in response to an earlier FOIA request. Letter from Kuehnle to Oakland (December 14, 1998) (Appeal). In fact, Kuehnle attached copies of portions of the two documents to this Appeal, challenging the adequacy of Oakland's search. Id.

II. Analysis

In responding to a request for information filed under the FOIA, it is well established that an agency must “conduct a search reasonably calculated to uncover all relevant documents.” Truitt v. Department of State, 897 F.2d 540, 542 (D.C. Cir. 1990). “The 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 Truitt, 897 F.2d at 542. We have not hesitated to remand a case where it is evident that the search conducted was in fact inadequate. See, e.g., Glen Milner, 17 DOE ¶ 80,102 (1988).

We contacted Oakland to ascertain the scope of the most recent search, particularly in light of Kuehnle's contention that Oakland had released some responsive material to her the previous year. Oakland confirmed the allegation, but could not explain Livermore's inability to find any responsive material for this request. Memorandum of Telephone Conversation between Rose Ann Pelzner Goodwin, Oakland FOIA Officer, and Valerie Vance Adeyeye, OHA Staff Attorney (January 7, 1999). Nonetheless, Oakland agreed to ask the Livermore staff members who provided the partial documents in the past to now provide Kuehnle with complete documents. Id.(1)

In addition, Oakland informed us that upon receiving the Appeal, they reviewed the search conducted in response to the October 19, 1998 request. In the course of that review, the FOIA Officer was informed that the labs at Livermore and Berkeley were once a single entity and that Berkeley archives might contain some responsive information. Memorandum of Telephone Conversation between Rose Ann Pelzner Goodwin, Oakland FOIA Officer, and Valerie Vance Adeyeye, OHA Staff Attorney (December 31, 1998). As a result, the Oakland FOIA Officer requested that the librarian search the archives for Berkeley information, and that search was initiated after the labs reopened for the new year. Memorandum of Telephone Conversation between Rose Ann Pelzner Goodwin, Oakland FOIA Officer, and Valerie Vance Adeyeye, OHA Staff Attorney (January 7, 1999).

In summary, Oakland has agreed to conduct a further search at Livermore for complete documents, and to search the Berkeley archives for any responsive information. Accordingly, we shall remand this matter to Oakland for the release of any additional non-exempt responsive material.

It Is Therefore Ordered That:

(1) The Appeal filed on December 14, 1998 by Jennifer Kuehnle, OHA Case No. VFA-0466, 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 Oakland Freedom of Information Act Officer who will promptly issue a new determination in accordance with the guidance set forth in the above Decision.

(3 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 12, 1999

(1)If, as Livermore suggested in its response, the documents were created by another organization, Oakland should provide Kuehnle with the name of the organization or any other useful information that could help Kuehnle in her research.