Case No. VFA-0521, 27 DOE ¶ 80, 234

September 30, 1999

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Appellant:William H. Keenan

Date of Filing:August 30, 1999

Case Number: VFA-0521

William H. Keenan filed this Appeal from a determination issued to him by the Albuquerque Operations Office (AOO) of the Department of Energy (DOE). The 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. In his Appeal, Keenan challenges the adequacy of AOO's search for documents responsive to his request.

I. Background

Keenan submitted an e-foia request stating that:

In August or September 1968, I and a number of other athletes were part of some test at the University of California Nuclear Medicine Facility at the AEC - Los Alamos. We were told that the test had something to do with a "whole body" measuring method involving the natural radiation of human tissue.... I am interested in learning more about the "whole" nature of those or any other tests that were conducted on us at the time.

On August 10, 1999, AOO issued a determination stating that it had found no records responsive to Keenan's request. Keenan then filed the present Appeal.

In his Appeal, Keenan contends that AOO's search was inadequate. He states that in 1967 or 1968, he was an athlete preparing for the Mexico City Olympics. According to Keenan, he was a member of a group of athletes who participated in a series of tests at Los Alamos.

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 often stated 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 inadequate. See, e.g., Hideca Petroleum Corp., 9 DOE ¶ 80,108 (1981); Charles Varon, 6 DOE ¶ 80,118 (1980).

In a case involving the adequacy of the agency's search, "the 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 therefore 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 Keenan's Appeal, we contacted officials at AOO to learn the extent of the search that they had conducted. Upon receiving Keenan's request, AOO searched its listing of "Z numbers," a registry of persons who are not employees of Los Alamos National Laboratory (LANL) but who enter the facility to participate in programs there. Also searched were the files of the Employee Information System (searched under both Retrieve Employee and Update Non-Lab Personal Information); the Official Personnel Files Office; the Radiation Protection Services (Dosimetry) Office; the Occupational Medicine Archives; and the LANL Information Records Center.(1)

We contacted personnel at AOO and forwarded them a copy of Keenan's Appeal. After reviewing the Appeal and notes of their original search, they informed us that they knew of no other files that might contain records responsive to Keenan's request. They added, however, that agencies other than the DOE and its predecessors may have conducted tests at Los Alamos similar to the test described by Keenan in his submissions. They did not expect any records of such tests to be in the custody or control of AOO, nor to be found in the course of a reasonable search by AOO under the FOIA.

Given the facts presented to us, we find that AOO conducted an adequate search that was reasonably calculated to discover documents responsive to Keenan's request. Therefore, we will deny this Appeal.

It Is Therefore Ordered That:

(1) The Appeal filed by William H. Keenan, Case No. VFA-0521, 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: September 30, 1999

(1)In his Appeal, Keenan noted his concern that AOO "seemed to merely have examined employee records." Personnel at AOO acknowledged that some of the files they searched were employee records. They informed us that they searched these files to ensure they would not overlook any responsive material, not because they believed Keenan was an employee at LANL. They also noted that they searched files containing material relating to non- employees.