Matthew Cherney, M.D., Case No. VFA-0480, March 23, 1999

Case No. VFA-0480, 27 DOE ¶ 80,195

March 23, 1999

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner:Matthew Cherney, M.D.

Date of Filing:February 23, 1999

Case Number: VFA-0480

On February 23, 1999, Matthew Cherney, M.D. (Appellant), filed an Appeal from a determination issued to him on February 10, 1999, by the Office of Hearings and Appeals (OHA) of the Department of Energy (DOE). That determination denied a request for information that the Appellant submitted under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004. In this Decision and Order, we will consider whether the DOE must conduct a further search for documents responsive to the Appellant’s FOIA request.

I. Background

On January 27, 1999, the Appellant filed a request under the FOIA with DOE’s FOIA/Privacy Act Division in which he sought "a list of documents declared 'B5' in the OHA decision dated January 19th. A rough description of the documents in question along with the author(s), the date written and the date each one arrived in Washington will suffice." The documents in question pertain to an unsolicited proposal which the Appellant made to the DOE, and were the subject of an OHA FOIA Decision, Matthew Cherney, M.D., 27 DOE ¶ 80,181 (1999) (Cherney). On February 1, 1999, the FOIA/Privacy Act Division referred the request to OHA for a response. On February 10, 1999, OHA

issued a determination to the Appellant. OHA stated it had searched its own office and also referred the FOIA request to the DOE's Office of Utility Technologies, Energy Efficiency and Renewable Energy (EE) and to DOE's Office of General Counsel (OGC). OHA found that the list the Appellant requested of documents withheld under Exemption b(5) of the FOIA, i.e., the Index of Documents Not Released (index), had already been provided to the Appellant and the Appellant had actually provided the same document to OHA. Therefore, since the Appellant already had it, OHA did not enclose a copy of the document with its February 10, 1999 determination. In addition, although OHA determined what date the underlying documents were sent to Washington, D.C., from the Oak Ridge Operations Office (OR), no information was discovered as to the date that they arrived in Washington, the precise item of information sought by the Appellant. Therefore, no documents were released to the Appellant in OHA's February 10, 1999 determination. See Letter from Thomas O. Mann, Deputy Director, OHA, to Appellant (February 10, 1999). On February 23, 1999, the

Appellant filed the present Appeal of the February 10, 1999 determination, in which he contends that OHA's search for documents was inadequate.(1)

II. Analysis

We have held that a FOIA request deserves a thorough and conscientious search for responsive documents. When we have found that a search was inadequate, we have consistently remanded the case and ordered a further search for responsive documents. E.g., Native Americans for a Clean Environment, 23 DOE ¶ 80,149 (1993); Marlene R. Flor, 23 DOE ¶ 80,130 (1993); Eugene Maples, 23 DOE ¶ 80,106 (1993). However, the FOIA requires that a search be reasonable, not exhaustive. "The standard of reasonableness that we apply to the agency search procedures does not require absolute exhaustion of 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).

Those OHA staff members who processed the Appellant's request informed us that the index at issue in Cherney was the only list of documents they were aware of that listed the documents withheld under Exemption b(5) and provided information as to the description, authors and dates of creation. In view of the Appellant's continued request for this document, we have decided to release the index again to the Appellant. We will forward that material to the Appellant under separate cover. We then reviewed how the search had been conducted with respect to documents relating to the date that each item in the index arrived in Washington from OR. We learned that OGC, which originally received the documents from OR, did not record or stamp the date received on any of the documents or the cover forwarding memorandum. See Record of Telephone Conversation between Paul Lewis, OGC, and Dawn Goldstein, OHA (March 4, 1999).(2) In reviewing this Appeal, we compared the withheld documents with the list that is the subject of this Appeal. We have determined that with two brief exceptions, the author, description, and date of creation of each document, if known, was supplied.(3) We are convinced that this is the only list of withheld documents which is responsive to the Appellant's request. Since no information exists regarding the other information requested (with the minor exceptions described in Footnote 3 above), we find that an adequate search was made for documents responsive to the Appellant's request. Given the above facts, we therefore find that this Office's search for responsive documents was adequate.

It Is Therefore Ordered That:

(1) The Appeal filed by Matthew Cherney, M.D., on February 23, 1999, Case Number VFA-0480, 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: March 23, 1999

(1)1/ This Appeal was processed by an OHA staff different from the one which processed the Appellant's FOIA request.

(2)2/ In our February 10, 1999 determination, we did inform the Appellant as to the date of the postmark demonstrating when the documents were mailed from Tennessee.

(3)3/ The two exceptions are first, that the author of item No. 1 of the index is Marc Simpson. See Fax from Robert Stivers, Oak Ridge Operations Office, to Dawn Goldstein (March 8, 1999). Second, we discovered items No. 2 and No. 4 of the index appear to be the same document.