Case No. VFA-0488, 27 DOE ¶ 80,212

June 24, 1999

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Matthew Cherney, M.D.

Date of Filing: April 13, 1999

Case Number: VFA-0488

On April 13, 1999, Matthew Cherney, M.D., filed an Appeal from determinations issued by the Office of Power Technologies, Energy Efficiency and Renewable Energy (DOE/EE). The determinations responded to a request for information 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.

The FOIA generally requires that documents held by the federal government be released to the public upon request. 5 U.S.C. § 552(a)(6)(A). However, Congress has provided nine exemptions to the FOIA which set forth the types of information agencies are not required to release. 5 U.S.C. § 552(a)(6)(B). Under the DOE’s regulations, a document exempt from disclosure under the FOIA shall nonetheless be released to the public whenever the DOE determines that disclosure is not contrary to federal law and in the public interest. 10 C.F.R. § 1004.1.

I. Background

Dr. Cherney requested from the DOE all documents in its possession related to an unsolicited proposal he had submitted to the DOE. The proposal concerned a system for collecting solar energy invented by Dr. Cherney. Dr. Cherney's request specified the following categories of documents relating to the proposal:

(1) All documents received by DOE and given consideration;

(2) All written comments from all evaluators (and any calculations): Dr. Allan Hoffman, Dr. Joseph Galdo, Jeff Muhs, Slo Rajic, Marc Simpson, and Anthony Schaffhauser;

(3) All comments from any other evaluators;

(4) Transcripts of any oral comments made by any evaluator;

(5) Any other documents in the file; and

(6) Any electronic communications or telephone recordings.

On July 24, 1998, DOE/EE issued a partial response to the Appellant's request in which it released copies of 26 responsive documents. Letter from Allan R. Hoffman, Acting Deputy Assistant Secretary, Office of Utility Technologies, Energy Efficiency and Renewable Energy, to Dr. Matthew Cherney, Sunbear Systems (July 24, 1998). DOE/EE issued another partial response on September 18, 1998. In that determination, DOE/EE released an additional 35 documents in their entirety, released 4 other documents with information redacted from them, and identified 31 documents that it withheld in their entirety. DOE/EE stated that the information it was withholding was exempt from disclosure under Exemption 5 of the FOIA. Letter from Allan R. Hoffman, Acting Deputy Assistant Secretary, Office of Utility Technologies, Energy Efficiency and Renewable Energy, to Matthew Cherney, M.D., Sunbear Systems (September 18, 1998). DOE/EE issued a third partial response on January 5, 1999, releasing an additional 21 documents. Letter from Allan R. Hoffman, Associate Deputy Assistant Secretary, Office of Power Technologies, Energy Efficiency and Renewable Energy, to Matthew Cherney, M.D., Sunbear Systems (January 5, 1999). On March 8, 1999, DOE/EE issued a final response to the Appellant's request in which it released 10 responsive documents with information redacted under FOIA Exemptions 5 and 6. Letter from Allan R. Hoffman, Associate Deputy Assistant Secretary, Office of Power Technologies, Energy Efficiency and Renewable Energy, to Matthew Cherney, M.D., Sunbear Systems (March 8, 1999).(1)

We discern three arguments in Dr. Cherney's Appeal. First, he states that he has “never received a bona fide list of the documents denied with appropriate descriptions, dates, authors, etc. . . . Nowhere were the documents described adequately.” Appeal at 1. Second, the Appellant disputes the adequacy of the DOE's search for documents responsive to his request. Id. at 2. Third, Dr. Cherney asks us to reconsider a finding we made in a decision on a prior Appeal. Id. at 1; Electronic mail from Matthew Cherney, M.D., to Steven Goering, OHA (May 14, 1999). The decision on Dr. Cherney's prior Appeal (Case No. VFA-0459) upheld in part DOE/EE's withholding of information under FOIA Exemption 5 in its first two partial responses. Matthew Cherney, M.D., 27 DOE ¶ 80,181 (1999).

Dr. Cherney styles his present submission a Motion for Reconsideration of our earlier decision, which we issued after DOE/EE had issued two partial responses to his request. However, Dr. Cherney's first two arguments, regarding the adequacy of DOE/EE’s determination and the adequacy of its search, logically apply to DOE/EE’s response as a whole, i.e. all four responses taken together. Thus, with respect to these two issues, we consider Dr. Cherney’s submission as a new Appeal of DOE/EE’s entire response to his request. We will also address below the Appellant’s request that we reconsider the finding in Case No. VFA-0459 to which he refers.

II. Analysis

A. Adequacy of DOE/EE's Description of Responsive Documents

As noted above, Dr. Cherney argues that he has “never received a bona fide list of the documents denied with appropriate descriptions, dates, authors, etc. . . . Nowhere were the documents described adequately.” Appeal at 1. In several recent cases, we have addressed the extent to which information withheld from a requester must be described in response to a FOIA request. We have held that “agency determinations to deny release of documents need only provide a general description of the withheld material, and a statement of the reason for withholding each document.” Tammi D. Mourfield Selvidge, 27 DOE ¶ 80,170 at 80,675 (1998); Missouri River Energy Services, 27 DOE ¶ 80,165 at 80,658 n.1 (1998); William Payne, 27 DOE ¶ 80,162 at 80,652 (1998). In the present case, DOE/EE specifically identified in each of its four responses to the Appellant the documents it located in its search that were responsive to the request. Where documents were identified but not released, DOE/EE specified under which FOIA Exemption it was withholding the information, and the basis for invoking the exemption. Thus, DOE/EE's responses permitted the appellant to formulate the basis for his appeal, and permitted the appellate authority to understand the DOE’s assertion of exemption. Therefore, we reject Dr. Cherney's request for a more detailed description of documents.

B. Adequacy of DOE/EE's Search 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., Butler, Vines and Babb, P.L.L.C., 25 DOE ¶ 80,152 (1995). The FOIA, however, requires that a search be reasonable, not exhaustive. "[T]he 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 Weisberg v. Department of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984). 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).

After receiving Dr. Cherney's Appeal, we contacted DOE/EE to obtain additional information regarding its search for documents responsive to the appellant’s request. The individual responsible for conducting the search of DOE Headquarters for responsive documents was Joseph Galdo, a DOE/EE employee. Dr. Galdo informed us that he identified two locations where he believed responsive documents would be located, specifically, his file concerning Dr. Cherney's proposal and a file maintained by another DOE/EE employee. Because he had a copy in his file of the contents of the file maintained by the other DOE/EE employee, he believed that his file contained the universe of documents at DOE Headquarters responsive to the appellant's request.

Also considered by DOE/EE to be responsive to Dr. Cherney's request were documents under the jurisdiction of the DOE's Oak Ridge Operations Office (DOE/OR). We contacted the DOE/OR and we were informed that DOE/OR conducted a search of its procurement and contracts division, and also forwarded the request to the Oak Ridge National Laboratories (ORNL). ORNL is operated under contract with the DOE by Lockheed Martin Energy Systems and Lockheed Martin Energy Research. Because Dr. Cherney's proposal was the subject of litigation involving Lockheed Martin, the documents at ORNL related to his proposal had already been gathered by the Lockheed Martin counsel's office. Documents considered responsive to the appellant's request were forwarded by both DOE/OR and ORNL to DOE Headquarters for processing as part of DOE/EE's response to request.

Dr. Galdo further informed us that the DOE/EE's Office of Power Technologies maintains a chronological file of correspondence, which includes correspondence between that office and Members of Congress. He indicated that while that file may contain correspondence from Members of Congress on behalf of Dr. Cherney, Dr. Galdo did not consider documents in that file to be responsive to Dr. Cherney's request.

While we understand Dr. Galdo's interpretation of the request, we believe that any correspondence between DOE Headquarters and Members of Congress that reference Dr. Cherney's proposal would be responsive to Dr. Cherney's request for “all documents related to” his proposal. Although Dr. Cherney listed specific categories of documents that he stated his request included, our reading of the request is that this listing was intended to be illustrative, not exhaustive. Therefore, we will remand this matter to DOE/EE so that it may issue a new determination to the appellant. Before issuing its new determination, DOE/EE should reconsider the scope of its search in light of the interpretation of Dr. Cherney's request we adopt here, that is, all documents in the possession of DOE that relate in any way to Dr. Cherney's proposal.(2)

C. Request for Reconsideration of Finding Made in Case No. VFA-0459

As noted above, in our decision on Dr. Cherney's Appeal in Case No. VFA-0459, we found that DOE/EE properly withheld some material from the Appellant under FOIA Exemption 5. Exemption 5 of the FOIA shields from public disclosure, among other things, records reflecting the predecisional, consultative process of an agency. Benedetto Enterprises, Inc., 19 DOE ¶ 80,106 (1989); Darci L. Rock, 13 DOE ¶ 80,102 (1985). Thus in our decision, we considered which documents responsive to Dr. Cherney's request were predecisional. On this issue Dr. Cherney argued that, although he received a letter from DOE dated March 23, 1998, stating that the DOE would not fund his proposal, the actual decision on his proposal was made prior to that date. We reviewed the documents withheld from the appellant and the letters sent to him on March 23, 1998, and we concluded that none of the documents evidenced an agency decision on Dr. Cherney's proposal prior to March 23, 1998. Dr. Cherney would like us to now reconsider that conclusion.

A request for reconsideration is treated as an application for modification or rescission under the OHA's general procedural regulations, 10 C.F.R. Part 1003. Under these regulations, we will process an application for modification or rescission only if “the applicant demonstrates that it is based on significantly changed circumstances; . . .” 10 C.F.R. § 1003.55(b)(1). “For purposes of this subpart, the term 'significantly changed circumstances' shall mean--

(i) the discovery of material facts that were not known or could not have been known at the time of the proceeding and action upon which the application is based;

(ii) the discovery of a law, rule, regulation, order or decision on appeal or exception that was in effect at the time of the proceeding upon which the application is based and which, if such had been made known to the OHA, would have been relevant to the proceeding and would have substantially altered the outcome; or

(iii) there has been a substantial change in the facts or circumstances upon which an outstanding and continuing order of the OHA affecting the applicant was issued, which change has occurred during the interval between issuance of such order and the date of the application and was caused by forces or circumstances beyond the control of the applicant.

Applying the above definition, the only “changed circumstances” we can find described by Dr. Cherney relate to the first category, i.e. “the discovery of material facts that were not known or could not have been known at the time of the proceeding and action upon which the application is based[.]” Specifically, Dr. Cherney refers to documents of which he has recently become aware, either by receiving the documents from the DOE or because our office has referred to them in a response to a separate FOIA request. These documents allegedly support Dr. Cherney's contention that the DOE's decision on his proposal was made prior to March 23, 1998.

With respect to the documents that Dr. Cherney's states he received from the DOE, we asked the appellant to provide copies of those documents, but he did not. Nonetheless, we requested from DOE/EE copies of documents that fit the description given by Dr. Cherney. We have reviewed these documents, and again find that none of them evidences an agency decision on Dr. Cherney's proposal prior to March 23, 1998.

In his Appeal, Dr. Cherney also refers to the OHA's response to his January 22, 1999 FOIA request. In that FOIA request, Dr. Cherney sought a list of the documents we found to be properly withheld under FOIA Exemption 5 in our decision on his Appeal in Case No. VFA-0459, and also requested information as to when those documents “arrived in Washington.” In a February 10, 1999 response to this request, the OHA stated that it did not locate documents indicating when the documents in question arrived in Washington. Based on this response, Dr. Cherney now argues that “if you cannot say for sure when something arrived in [W]ashington, it is not” protected by FOIA Exemption 5. There is no doubt that, in order to be shielded by Exemption 5, a document must be both predecisional, i.e. generated before the adoption of agency policy, and deliberative, i.e. reflecting the give and take of the consultative process. Coastal States, 617 F.2d at 866. This is why our conclusions in VFA-0459 regarding the predecisional nature of the requested documents rested in part on when the documents were generated, not when they “arrived in Washington.” Because Dr. Cherney's argument does not address when documents were generated, but only when they arrived in Washington, which is irrelevant for these purposes, it provides no basis for reconsidering our finding in Case No. VFA-0459.

D. Conclusion

For the reasons stated above, we are remanding this matter to DOE/EE for the limited purpose of conducting a new search for documents in response to the appellant's request. In conducting this search, DOE/EE should consider responsive to the request not only those categories of documents specifically described by the appellant in his request, but also all documents in the possession of DOE that relate in any way to Dr. Cherney's proposal. We note that on remand DOE/EE is only required to conduct “a search reasonably calculated to uncover the sought materials,” not the “absolute exhaustion” of DOE's files. Miller v. Department of State, 779 F.2d 1378, 1384-85. DOE/EE should then issue a new determination identifying to the appellant any documents in the possession of the DOE that are responsive to this broader interpretation of the request, but were not so identified in DOE/EE's previous determinations, and either releasing those documents or explaining why they may be withheld pursuant to a FOIA exemption. With respect to all other issues Dr. Cherney has raised, we will deny his Appeal.

It Is Therefore Ordered That:

(1) The Appeal filed by Matthew Cherney, M.D., Case No. VFA-0488, is granted as set forth in paragraph (2) below, and is in all other respects denied.

(2) This matter is hereby remanded to the Office of Power Technologies, Energy Efficiency and Renewable Energy, for further proceedings in accordance with the instructions set forth in this Decision and Order.

(3) This is a final order of the Department of Energy from which any aggrieved party may seek judicial review. 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: June 24, 1999

(1)DOE/EE did not identify any documents responsive to items 3 and 4 of the Appellant's request in any of its responses.

(2)In his Appeal, Dr. Cherney alleges a “high level of participation” by DOE's Office of General Counsel (DOE/GC) in the DOE's decision regarding his proposal. While we are aware of no evidence supporting Dr. Cherney's allegation, DOE/EE should consider as responsive to Dr. Cherney's request any document in the possession of DOE/GC related to his proposal, since Dr. Cherney's request was made to DOE generally and not DOE/EE specifically.