Case No. VFA-0545, 27 DOE ¶ 80,254

February 1, 2000

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: David Rheingold

Date of Filing: January 4, 2000

Case Number: VFA-0545

On January 4, 2000, David Rheingold filed an Appeal from a determination issued to him on November 12, 1999, by the Office of Public Affairs (PA) of the Department of Energy (DOE). That 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 DOE in 10 C.F.R. Part 1004. Mr. Rheingold challenges the adequacy of PA’s search for documents responsive to his request.

I. Background

On November 12, 1999, Mr. Rheingold filed a request for information in which he sought a copy of the 1995 report by Carma International that evaluated press coverage for the Department of Energy. On November 12, 1999, PA issued a determination which stated that it conducted a search for the requested document. However, PA stated that it was unable to locate the document. See Determination Letter at 1.

On January 4, 2000, Mr. Rheingold filed the present Appeal with the Office of Hearings and Appeals (OHA). In his Appeal, Mr. Rheingold challenges the adequacy of the search conducted by PA. Mr. Rheingold asks that the OHA direct PA to conduct a new search for the requested document. See Appeal Letter.

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 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., Hideca Petroleum Corp., 9 DOE ¶ 80,108 (1981); Charles Varon, 6 DOE ¶ 80,118 (1980). In cases such as these, "[t]he 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 must 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 the present Appeal, we contacted officials at PA to ascertain the extent of the search that had been performed and to determine whether any other documents responsive to Mr. Rheingold’s request might exist. Upon receiving Mr. Rheingold’s request for information, PA instituted a search of its internal files in its Press Office and its Resource Management Office, and also in the DOE’s Procurement Office. Based on this search, PA was unable to locate the responsive document. Although PA acknowledged that it should have in its files an original copy of the report requested by Mr. Rheingold, it can only surmise that all copies of the report were inadvertently given out to the news media and an original copy was not maintained in its office. See Record of Telephone Conversation between Arlene Estep, PA, and Kimberly Jenkins-Chapman, OHA (January 11, 2000).

Given the facts presented to us, we find that PA conducted an adequate search which was reasonably calculated to uncover documents responsive to Mr. Rheingold’s request. Accordingly, Mr. Rheingold’s Appeal is denied.

It Is Therefore Ordered That:

(1) The Appeal filed by David Rheingold, OHA Case No. VFA-0470, on January 4, 2000, 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: February 1, 2000