Case No. VFA-0470, 27 DOE ¶ 80,189

February 26, 1999

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Ashok K. Kaushal

Date of Filing: January 22, 1999

Case Number: VFA-0470

On January 22, 1999, Ashok K. Kaushal filed an Appeal from a determination issued to him on December 16, 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 and the Privacy Act, 5 U.S.C. § 552a, as implemented by the DOE in 10 C.F.R. Part 1008. Mr. Kaushal challenges the adequacy of IG's search for documents responsive to his request.

I. Background

On April 29, 1997, Mr. Kaushal filed a request for information in which he sought documents created in response to a complaint he filed against Sandia National Laboratory. On December 16, 1998, IG issued a determination which stated that it located a number of documents responsive to Mr. Kaushal’s request. See Determination Letter at 1. IG released certain documents to Mr. Kaushal. However, it withheld other documents and portions thereof pursuant to Exemptions 5, 6 and 7(C) of the FOIA.

On January 22, 1999, Mr. Kaushal filed the present Appeal with the Office of Hearings and Appeals (OHA). In his Appeal, Mr. Kaushal does not challenge the documents that were withheld pursuant to Exemptions 5, 6 and 7(C), but rather challenges the adequacy of the search that IG conducted. Specifically, Mr. Kaushal contends that IG failed to locate and provide a copy of the investigative report related to Mr. Kaushal’s complaint. Mr. Kaushal asks that the OHA direct IG to conduct a new search for this investigative report. 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. Kaushal’s request might exist. Upon receiving Mr. Kaushal’s request for information, IG instituted a search of its files. Specifically, IG searched its Allegation-Based Inspections Files. Based on this search, IG located a number of documents that were responsive to Mr. Kaushal’s request. Some of these documents were provided to Mr. Kaushal in their entirety and others were provided with material withheld pursuant to Exemptions 5, 6 and 7(C). IG has informed us that this search did not produce the investigative report referred to in Mr. Kaushal’s Appeal because Mr. Kaushal’s complaint was settled before a report could be issued. See Record of Telephone Conversation Between Geoffrey Gray, IG, and Kimberly Jenkins-Chapman, OHA (February 9, 1999). According to IG, it is their policy to destroy any drafts of their investigative reports. However, upon a further search during the course of this Appeal, IG has located a number of additional documents that were used in drafting an investigative report.

Given the facts presented to us, we find that IG conducted an adequate search which was reasonably calculated to discover documents responsive to Mr. Kaushal's request. However, in light of the fact that IG has located additional documents that might be responsive to Mr. Kaushal’s request, we shall remand this matter to IG to either release these documents to Mr. Kaushal or issue a new determination adequately supporting the withholding of the documents.

It Is Therefore Ordered That:

(1) The Appeal filed by Ashok K. Kaushal, OHA Case No. VFA-0470, on January 22, 1999, is hereby granted in part as set forth below in Paragraph (2) and denied in all other respects.

(2) This matter is hereby remanded to the Office of Inspector General of the Department of Energy, which shall either release additional responsive documents or issue a new determination adequately supporting the withholding of the documents.

(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: February 29, 1999