Case No. VFA-0536, 27 DOE ¶ 80,245

December 2, 1999

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Barbara Schwarz

Date of Filing: November 2, 1999

Case Number: VFA-0536

On November 2, 1999, Barbara Schwarz filed an Appeal from determinations issued by the Department of Energy Headquarters Freedom of Information and Privacy Group (DOE/FOI) and by the Department of Energy’s Office of Inspector General (DOE/IG). These 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 setting 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

In a request dated June 18, 1999, Ms. Schwarz requested from the DOE records on the following individuals or subjects:

1) As to that the Germans are behind the nuclear weapons and other weapons of nations that are hostile to the United States,

2) As to that the Germans are behind terror acts and wars against the United States or against other countries which the United States want to protect,

3) As to a civilian submarine in the Great Salt Lake, that protects it’s [sic] residents from all kind of pollution and germs with the result that people stay young and have currently at least double the lifespan than people not living in this village,

4) As to L. Ron Hubbard and proposed energy programs and environmental programs and nuclear counterintelligence programs proposed by him,

5) As to Claude, Elizabeth, Phillip, Mark C., Harvey L., Edwin, Willard, Olivia Rathbun (de Rothschild) and proposed energy programs, environmental programs and nuclear counterintelligence programs proposed by them,

6) As to myself, Barbara Schwarz or misspelled version Schwartz,

7) As to if Mark C. Rathbun (de Rothschild)[,] members of his family, their attorneys or any Independent or Special Counsel inquired records pertaining to myself from the Dept. of Energy.

Letter from Barbara Schwarz to DOE (June 18, 1999).

On October 20, 1999, DOE/FOI sent a response to Ms. Schwarz. Letter from Abel Lopez, Director, DOE/FOI (October 20, 1999). DOE/FOI first stated that it had informed Ms. Schwarz in a July 19, 1999 letter that items 1 and 2 of her request “did not describe the records you were requesting with sufficient specificity for the DOE to conduct a search for responsive documents. This response, therefore, responds to items 3, 4, 5, 6 and 7 of your request.” Id. The response then informed Ms. Schwarz that the

files of five offices at Headquarters were searched for documents responsive to your request. These offices were the Office of Congressional and Intergovernmental Affairs, the Policy, Standards and Analysis Division in the Office of Safeguards and Security, the Office of Headquarters and Executive Personnel Services, the Office of Inspector General, and the Office of the Deputy General Counsel for Litigation.

Id. DOE/FOI reported that (1) the searches of the first three offices listed produced no documents responsive to items 3 through 7 of her request; (2) DOE/IG has already provided a separate response to Ms. Schwarz; and (3) the search of the Office of the Deputy General Counsel for Litigation located only one document, the July 19, 1999 letter to Ms. Schwarz referred to above regarding the lack of specificity of the first two items of her request. Id. That document was provided to Ms. Schwarz in its entirety along with DOE/FOI’s October 20, 1999 response.(1)

II. Analysis

Ms. Schwarz’s November 2, 1999 Appeal contends that the DOE’s search for documents responsive to her request was inadequate. She also takes issue with the DOE/FOI’s opinion that items 1 and 2 of her request did not sufficiently describe the records she was seeking. Finally, Ms. Schwarz contends that DOE/FOI ignored her request for a waiver of fees associated with the processing of her FOI request.

A. Ms. Schwarz’s Request for a Fee Waiver

The DOE FOIA regulations state that the Department “will charge fees [to FOIA requesters] that recoup the full allowable direct costs incurred” but also state that, with certain exceptions, the “DOE will provide the first 100 pages of duplication and the first two hours of search time without charge.” 10 C.F.R. § 1004.9(a). In addition, the DOE “will furnish documents without charge or at reduced charges if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the Government and disclosure is not primarily in the commercial interest of the requester.” Id. On July 24, 1999, Ms. Schwarz sent to DOE/FOI a request for a waiver of fees associated with the processing of her request. Letter from Barbara Schwarz to Abel Lopez, DOE/FOI (July 24, 1999). In her Appeal, Ms. Schwarz complains that DOE/FOI ignored her fee waiver request in its October 20, 1999 response, and insists that the DOE make a decision on this request. Appeal at 1. We will dismiss this portion of Ms. Schwarz’s appeal as moot because Ms. Schwarz does not claim the DOE charged her any fees for processing her request, and DOE/FOI has confirmed that the Department charged Ms. Schwarz no fees. Electronic mail from Sheila Jeter, DOE/FOI, to Steven Goering, OHA (October 10, 1999).

B. Adequacy of DOE’s Search for Responsive Documents

Ms. Schwarz makes several arguments regarding the adequacy of the DOE’s search for documents responsive to her request. First, the Appellant notes that the DOE/FOI did not conduct a search of all offices of the DOE, as she had specifically requested. Appeal at 1. Second, she states that she requested a “search certificate, a declaration by the officials that conducted the search. . . . I have a right to know who those people are and how they conducted exactly the search to retrieve those records.” Id. at 2. Third, she refers to a letter she received from this office dismissing an earlier Appeal she filed after receiving a separate response to her request from DOE/IG. Id. at 3. We stated in that letter that Ms. Schwarz should wait until she received a final response to her request from DOE/FOI before filing an Appeal with our office. Letter from Thomas O. Mann, Deputy Director, OHA, to Barbara Schwarz (September 24, 1999) at 1. We also informed her that DOE/FOI assigned her request to DOE/IG, “as well as to DOE’s Office of Management and Administration and the Office of Nonproliferation and National Security for searches.” We went on to state that after “examining the documents you submitted, we have suggested that [DOE/FOI] also coordinate searches of DOE’s Office of General Counsel, the Executive Secretariat, the Office of Public Affairs and the Office of Congressional and Intergovernmental Affairs.” Id. Ms. Schwarz wants to know “why weren’t those offices searched as it was promised . . . ?” Appeal at 3.

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).

First, applying the above standard, we cannot agree with Ms. Schwarz that the FOIA requires in the present case a search of every office in the DOE, no matter how small the probability of finding responsive documents. Such would be the epitome of an exhaustive search, far beyond the requirement that a search be reasonably calculated to uncover the materials Ms. Schwarz seeks.(2)

In support of her contention that she was entitled to a “search certificate,” the Appellant cites Steinberg v. Department of Justice, 23 F.3d 548 (D.C. Cir. 1994). In that case, a U.S. Court of Appeals reviewed the lower court’s granting of summary judgment to the Department of Justice. The Court of Appeals reversed the lower court, finding that the Justice Department had not shown that it had conducted a “reasonably thorough search of its records” because it had not described “in any detail what records were searched, by whom, and through what process.” Id. at 551, 552. The Steinberg opinion, however, only addresses the showing an agency is required to make in support of a motion for summary judgment in a U.S. District Court. It does not state that an agency’s response to a FOIA request must provide a detailed description of its search. In fact, the FOIA simply requires, without further elaboration, that an agency make a determination in response to a request and “notify the person making such request of such determination and the reasons therefor, and of the right of such person to appeal to the head of the agency any adverse determination; . . .” 5 U.S.C. § 552(a)(6)(A)(i). Nor do the DOE FOIA regulations contain such a requirement, stating only, “Although a determination that no such record is known to exist is not a denial, the requester will be informed that a challenge may be made to the adequacy of the search by appealing within 30 calendar days to the Office of Hearings and Appeals.” Thus we cannot agree with Ms. Schwarz that the DOE/FOI’s response to her request was somehow deficient for not describing in detail the search for responsive documents.

Nonetheless, in order to determine for purposes of the present appeal whether the DOE conducted an adequate search, we have gathered additional information from the various offices responsible for carrying out the search. Initially, because Ms. Schwarz questions in her Appeal whether each of the offices mentioned in our September 24, 1999 letter to her were in fact searched, we sought to clarify to which offices DOE/FOI referred Ms. Schwarz’s request. As DOE/FOI stated in its response, it referred the request to the “Office of Congressional and Intergovernmental Affairs, the Policy, Standards and Analysis Division in the Office of Safeguards and Security, the Office of Headquarters and Executive Personnel Services, the Office of Inspector General, and the Office of the Deputy General Counsel for Litigation.” Letter from Abel Lopez, Director, DOE/FOI (October 20, 1999). Subsequent to Ms. Schwarz filing her appeal, DOE/FOI informed us that it also coordinated searches of the Office of Public Affairs and the Office of Executive Secretariat. Electronic mail from Sheila Jeter, DOE/FOI, to Steven Goering, OHA (October 17, 1999); Electronic mail from Sheila Jeter to Steven Goering (October 10, 1999). Thus, it appears that DOE/FOI in fact coordinated searches of each of the offices mentioned in our September 24, 1999 letter.(3)

1. Office of Safeguards and Security

The Policy, Standards and Analysis Division in the Office of Safeguards and Security provided the following information regarding its search. First, the office’s Central Personnel Clearance Index (CPCI) was searched for the names Barbara Schwartz and Barbara Schwarz. Memorandum of telephone conversation between Victor Hawkins, Office of Safeguards and Security, and Steven Goering, OHA (November 18, 1999). The CPCI is an computerized index of individuals who have held or been considered for security clearances. Id. The office also searched clearance documents on microfiche that predate the CPCI. Id. These microfiche documents are maintained in alphabetical order, and were searched under the names Barbara Schwartz and Barbara Schwarz. Id. Finally, a search was conducted of files of office correspondence dating from June 1993 to the present. The office searched these files by subject for correspondence related to the FOIA and Privacy Act. Id. The initial search of documents filed under this subject did not reveal documents that the office believed were responsive to the request. Id. A subsequent search, however, has revealed documents pertaining to L. Ron Hubbard that are arguably responsive to the request, and the Office of Safeguards and Security informs us that it will release these to the requester. Id.

2. Office of Public Affairs and Office of Congressional and Intergovernmental Affairs

One DOE management official coordinated the search for responsive documents in the Office of Public Affairs and the Office of Congressional and Intergovernmental Affairs. This official informed us that her standard procedure in response to FOIA requests is to send a memorandum to every staff member informing them of the request and asking them to get back to her by a date certain with any responsive documents located. Memorandum of telephone conversation between T.J. Hopkins, Office of Congressional and Intergovernmental Affairs, and Steven Goering, OHA (November 18, 1999). In the present case, no documents were located.

3. Office of Executive Secretariat

The official at DOE/FOI who coordinated the DOE’s overall search also conducted a search of the DOE’s Office of Executive Secretariat. Documents in this office are indexed in the Document On Line Coordination System (DOCS) system. The DOE/FOI official searched this system using the names of the individuals mentioned in Ms. Schwartz’s request. This search only located one document, Ms. Schwarz’s original FOIA request.

4. Office of Inspector General

After we contacted the DOE/IG regarding the present appeal, the office conducted a new search to confirm the results of its earlier search that found no responsive documents. Electronic mail from Jacqueline Becker, DOE/IG, to Steven Goering, OHA (October 19, 1999). We were informed that DOE/IG documents are maintained by three offices, the Office of Investigations, Office of Audits, and the Office of Inspections. Id. Each office has a computerized database in which any information maintained in a particular file can be retrieved electronically, and each office conducted computer database searches using the following keywords: Schwarz, Schwartz, Germans, Great Salt Lake, L Ron Hubbard, Hubbard, Eisenhower, Nazi, de Rothschild, and Rathbun. Id. These searches yielded no responsive documents. Id. The offices again distributed the request to DOE/IG Management, Directors and Team Leaders. Id. Upon their review, none recalled any cases or information concerning the individuals or subject matter mentioned above. Id. Finally, the Office of Audits manually reviewed all DOE OIG semiannual reports from 1982 to present with regard to the above- mentioned subject-matter. Id. This review also yielded no responsive documents. Id.

5. Office of Headquarters and Executive Personnel Services

The Office of Headquarters and Executive Personnel Services informed us that it searched the following files and records for the names of Barbara Schwarz or Barbara Schwartz: Senior Executive Performance Appraisal Records (based on career and non-career executive personnel data) in the Executive and Technical Resource Division; Lending Library files and records in the Career Resource Management Center; Computer database, office files and old office records in the Employment and Classification Division; Medical records and files, performance, conduct, leave, and family-friendly records and requests (e.g., leave transfer) in the Employee and Labor Relations Division. Electronic mail from Marilyn Greene, Office of Headquarters and Executive Personnel Services, to Steven Goering, OHA. The office also performed a name search of the Corporate Human Resources Information System (CHRIS) and a name search of the Department of Energy Information Database (DOEInfo). Id. No records or files were found for the names Barbara Schwarz or Barbara Schwartz. Id.

6. Office of the Deputy General Counsel for Litigation

The attorney responsible for conducting a search of the Office of the Deputy General Counsel for Litigation told us that he first checked to see if his office had any litigation pending that might relate to the subpoenas referenced in her request. Electronic mail from Dow Davis, Office of the Deputy General Counsel for Litigation, to Steven Goering, OHA (November 22, 1999). This revealed no responsive information. Id. He then asked a document control specialist in the office to conduct a computer search of two databases that track the office’s correspondence, using the names and subjects referenced in Ms. Schwarz’s request. Id. As noted above, this search yielded only a copy of the July 19, 1999 letter from DOE/FOI to Ms. Schwarz.

Based on the above descriptions, we conclude that the searches of the Office of Public Affairs, Office of Congressional and Intergovernmental Affairs, Office of Inspector General, and the Office of the Deputy General Counsel for Litigation were reasonably calculated to uncover the records sought by Ms. Schwarz. Though there was not one uniform search method used, each office clearly made a thorough and conscientious effort to locate all responsive documents it might have, either by notifying employees of the request and asking them to provide responsive documents or by searching computerized document tracking systems, and in some cases by using both methods.

Similar methods were employed by both the Office of Safeguards and Security and the Office of Headquarters and Executive Personnel Services. We note, however, that the Office of Safeguards and Security limited its subject search to one subject (FOIA and Privacy Act) and both offices apparently limited their name searches to only that of Ms. Schwarz. For this reason, we find that these searches were reasonably calculated to locate some of the records sought by the requester, but clearly not all of them. We therefore will remand this matter to DOE/FOI to coordinate further searches of these two offices. For guidance in conducting a more thorough search, we suggest that these offices refer to the subject matter and name searches used by DOE/IG in its search, which we discuss in detail above.

C. Adequacy of Ms. Schwarz’s Description of Documents Requested

The first two items of Ms. Schwarz’s June 18, 1999 request sought records “[a]s to that the Germans are behind the nuclear weapons and other weapons of nations that are hostile to the United States,” and “[a]s to that the Germans are behind terror acts and wars against the United States or against other countries which the United States want to protect, . . .” Letter from Barbara Schwarz to DOE (June 18, 1999). In a July 19, 1999 letter to Ms. Schwarz, DOE/FOI stated,

The DOE regulation that implements the FOIA provides, at 10 CFR 1004.4(c)(1), that a request “must enable the Department to identify and locate the records sought by a process that is not unreasonably burdensome or disruptive of DOE operations.” The regulations further states that, where possible, specific information regarding dates, titles, file designations, offices to be searched, and other information that may help identify the records should be supplied by the requester.

We have determined that items 1 and 2 of your request do not reasonably describe the records you are seeking. Please provide more specific information that identify the particular documents to which you seek access so the appropriate programs can be searched for records responsive to the request. For example, you should identify those countries that you consider ?hostile’ to the United States and that the United States wants to ?protect.’

Letter from Abel Lopez, DOE/FOI, to Barbara Schwarz (July 19, 1999).

Ms. Schwarz responded to DOE/FOI’s July 19, 1999 letter by providing the following details as to the information she was seeking:

There is Saddam Hussein in Iraq. Do you have any indication as to that the Germans secretly set him up to any of his Anti-American hostilities? Do you have any record hereto?

Same goes for Osama Bin Laden.

Same goes for Iran.

Same goes for China.

Same goes for Libya. You must know that the Germans build [sic] in this decade secretly chemical weapons plants in Lybia, by knowing that Ghadafi targeted the United States. Do you have any records hereto?

As to my observations there are German programs that target the United States, it’s [sic] moral and it’s [sic] finances, and the lifes [sic] of U.S. citizens by getting them involved in actions of war. E.g., two countries start to fight, e.g. Israel and Palestine, or India and Pakistan, Iran and Iraq, Iraq and Kuwait, Russia and Afghanistan, Serbs against Bosnians and Albanians, etc., with the purpose that sooner or later the United States have to move in to restore peace and human rights. Do you have any records hereto?

Do you have any records to that the former war between Iran and Iraq was a set up so that Iraq would get secret information on U.S. weapons, which Iraq would then use in a war against the U.S. to defeat the U.S. and that this was set up secretly by the Germans?

Do you have any records as to that the Germans set up the Chinese secretly to spy out U.S. weapons?

Do you have any records that the Germans have plans to set up a war between China, any other country and the United States?

Letter from Barbara Schwarz to DOE/FOI (July 24, 1999).

We understand the position of DOE/FOI expressed in its October 20, 1999 response that, even with the additional information provided by Ms. Schwarz, the first two items of her request leave ambiguities that need to be resolved before DOE should undertake a search for responsive documents. For example, Ms. Schwarz does not indicate whether her use of the term “Germans” refers to the German government or individual Germans, or both. Nor is it clear whether she is seeking documents related to activities of the “Germans” during a specified period of time. By providing these examples, we in no way imply that Ms. Schwarz should be required to narrow the scope of her request. However, even a request for a broad scope of documents must be clear enough for the agency to determine what documents are being requested. Yeager v. DEA, 678 F.2d 315, 322, 326 (D.C. Cir. 1982) (holding valid request encompassing over 1,000,000 computerized records: “The linchpin inquiry is whether the agency is able to determine ?precisely what records [are] being requested’” (quoting S. Rep. No. 854, 93d Cong., 2d Sess. 12 (1974)). Thus, on remand, DOE/FOI should “invite the requester to confer with knowledgeable DOE personnel” in an attempt to clarify Ms. Schwarz’s description of the documents she is seeking in items 1 and 2 of her request. 10 C.F.R. § 1004.4(c)(2).

For the reasons explained above, we will grant Ms. Schwarz’s Appeal to the extent that we will remand this matter to DOE/FOI to coordinate a further search for responsive documents as described above. In all other respects, the present Appeal will be denied.

It Is Therefore Ordered That:

(1) The Appeal filed by Barbara Schwarz, Case No. VFA-0536, is granted as set forth in paragraph (2) below, and is in all other respects denied.

(2) This matter is hereby remanded to the Department of Energy Headquarters Freedom of Information and Privacy Group 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: December 2, 1999

(1)Ms. Schwarz apparently misunderstood DOE/FOI’s October 20 letter as stating that the one document located in the search of the Office of the Deputy General Counsel for Litigation had been sent to her along with DOE/FOI’s July 19, 1999 letter to her. Appeal at 2. We sought clarification from DOE/FOI, who informed us that the document located by that search was the July 19, 1999 letter. Electronic mail from Sheila Jeter, DOE/FOI, to Steven Goering, Office of Hearings and Appeals (OHA) (October 10, 1999).

(2)Ms. Schwarz also misreads the FOIA when she claims that she has “a right for [sic] two hours free search time and 100 copies of free document[s] from each of the offices of the Department of Energy.” Appeal at 1. The statute simply provides that “[n]o fee may be charged by any agency under this section . . . for the first two hours of search time or for the first one hundred pages of duplication.” 5 U.S.C. § 552(a)(4)(A)(iv). This simply means, for example, that the DOE may not charge for the first two hours of its search. It does not mean that the first two hours of the search of each DOE office is free. And the statute certainly does not require an agency (let alone each office within an agency) to expend a specified amount of its resources (e.g., spend two hours on each search) in response to a FOIA request.

(3)Two offices we mentioned in our September 24, 1999 letter, the Policy, Standards and Analysis Division in the Office of Safeguards and Security, and the Office of Headquarters and Executive Personnel Services, are offices within two of the offices searched, the Office of Nonproliferation and National Security and the Office of Management and Administration, respectively. We apologize to Ms. Schwarz for any confusion created by our September 24, 1999 letter.