Case No. VFA-0523, 27 DOE ¶ 89,241

November 15, 1999

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Nevaire S. Rich

Date of Filing: September 10, 1999

Case Number: VFA-0523

On September 10, 1999, Nevaire S. Rich (Rich) filed an Appeal from a determination that the Department of Energy (DOE) Freedom of Information Act and Privacy Act Division (DOE/HQ) issued to her. The determination responded to a request for information filed 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 the determination, DOE/HQ released some responsive information to Rich. This Appeal, if granted, would require the DOE to release the remainder of the responsive information.

I. Background

On July 30, 1998, Rich submitted five requests to DOE/HQ. Rich asked for the following information: (1) all documents describing difficulties encountered during the processing of civil rights complaints when dealing with officials of the Office of Nonproliferation and National Security (NN) since 1992; (2) all documents regarding the civil rights practices and trends of NN; (3) all documents regarding the costs of processing civil rights complaints up to the time of resolution; (4) all documents regarding settlements, including the number of settlements, settlement amounts and the names of DOE officials who negotiated the settlements on behalf of DOE; and (5) the number, basis and geographic location of each civil rights complaint. See Letters from Rich to DOE/HQ (July 30, 1998). DOE/HQ combined the five requests into one, and assigned the request to the Office of Civil Rights (DOE/OCR) for a search of its files. Letter from Acting Director, DOE/HQ to Rich (August 7, 1998). DOE/OCR performed a search that located 11 responsive documents. DOE/HQ released those documents to Rich. Ten were released in their entirety and one was released with the names of complainants deleted. Letter from DOE/HQ to Rich (June 29, 1999) (Determination Letter). In her Appeal, Rich challenges the adequacy of the search, arguing that the final response failed to address several of her requests and that the search results were incomplete.

Letter from Rich to Director, OHA (September 10, 1999) (Appeal).(1) Rich does not appeal the withholding of complainants’ names.

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 DOE/OCR to ascertain the scope of the search, particularly in light of Rich’s contention that she has copies of responsive letters that were not released to her. In addition, Rich argues that even though she made more than one civil rights complaint about NN to DOE/OCR herself, DOE/OCR produced no evidence of her complaints in the responsive material. Memorandum of Telephone Conversation between Rich and Valerie Vance Adeyeye, OHA (September 30, 1999). At that time, DOE/OCR did not provide any details about the search or explain their inability to locate the responsive material that Rich already had in her possession. Electronic Mail Message from DOE/OCR to Valerie Vance Adeyeye, OHA Staff Attorney (October 1, 1999). Nonetheless, DOE/OCR accepted a copy of the appeal and agreed to contact this office with further information about the search. Id.

Sometime thereafter, DOE/OCR contacted OHA and we met to discuss the search. As a preliminary matter, DOE/OCR stated that files were retired after three years, and that it had released all of the responsive information in its possession. Memorandum of Meeting between Lynn Hull, DOE/OCR, and Valerie Vance Adeyeye, OHA Staff Attorney (October 19, 1999). DOE/OCR informed this office that it had searched every complaint file, and also searched for a corresponding case in the “settlement drawer.” Id. In response to Rich’s argument that Rich is aware of settlements that were not included in the responsive material, Ms. Hull stated that some settlements may have been too recently negotiated to appear in DOE/OCR’s files. In addition, settlements that are negotiated and agreed upon in the field are not recorded at DOE/OCR if the field personnel do not notify DOE/OCR of the settlement. In reference to Rich’s request for information about problems dealing with officials in named DOE offices, DOE/OCR does not maintain records that identify the number of times that a complaint was filed against a certain manager. Thus, DOE/OCR could not respond to

Rich’s request for documents about the difficulties encountered while processing complaints when dealing with officials of NN or other named offices. We therefore find that DOE/OCR conducted an adequate search of records in its possession.

Finally, DOE/OCR explained that it provided Rich a summary document of settlement information in response to one of her requests. We find that this was a logical, reasonable and user-friendly manner in which to present the data to the requester. See Charles E. Washington, 27 DOE ¶ 80,221 (1999). However, Rich has now made clear that she wishes to see all of the responsive documents, and under the FOIA, she is entitled to receive a copy of all responsive, non-exempt documents. Id. Accordingly, we shall remand this portion of the case to DOE/OCR for a further determination.(2) DOE/OCR should either promptly release all additional responsive material or explain the reason for the withholding of any such information.

It Is Therefore Ordered That:

(1) The Appeal filed on September 10, 1999 by Nevaire Rich, OHA Case No. VFA-0523, 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 DOE Office of Civil Rights which 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: November 15, 1999

(1)Rich filed this appeal after the thirty-day deadline specified in our regulations. See 10 C.F.R. § 1004.8(a). We advised DOE/OCR, and they informed us that, despite the delay, they had nothing to add to the initial response. Electronic mail message from Lynn Hull, OCR to Valerie Vance Adeyeye, OHA (September 24, 1999). In the interest of administrative efficiency, we then accepted the appeal.

(2)In her request, Rich also sought information about Equal Employment Opportunity case investigations that are performed in connection with civil rights complaints. DOE/OCR informed OHA, but not the requester, that there is a privacy interest in much of this material. DOE/OCR should address this issue in the new determination.