Case No. VFA0552, 27 DOE ¶ 80,257

February 17, 2000

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Margaret A. O’Neill

Date of Filing: January 18, 2000

Case Number: VFA-0552

On January 18, 2000, Margaret A. O’Neill filed an Appeal from a final determination that the Office of Headquarters and Executive Personnel Services (Personnel) of the Department of Energy (DOE) issued on December 15, 1999. That determination concerned a request for information submitted by Ms O’Neill pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004. If the present Appeal were granted, Personnel would be required to conduct a further search for responsive documents.

Background

On August 18, 1999, Ms O’Neill submitted a FOIA request for

1. All records, including electronic mail [and] hand written notes, that pertain to the classification and review of all GS-0301-15 and GS 0343-15 position descriptions submitted by the Office of Counterintelligence for the Executive Assistant, Staff Director, and/or Executive Officer;
2. All materials prepared for use by management related to the review of comparable positions and;
3. All records of communication between management and staff related to the classification and review of particular positions and materials prepared for review of comparable positions.

Request Letter dated August 18, 1999, from Margaret A. O’Neill to FOIA Officer, FOI/Privacy Acts Division, DOE. On December 15, 1999, Personnel responded, releasing what it stated were all available records and documents. Determination Letter dated December 15, 1999, from Claudia A. Cross, Director, Office of Headquarters and Executive Personnel Services, DOE, to Margaret A. O’Neill. Personnel indicated that some of the records requested may no longer exist. Id.

On January 18, 2000, Ms O’Neill filed this Appeal. First, Ms O’Neill contends that records that no longer exist may possibly be retrieved if the records existed in electronic format.

Appeal Letter dated January 18, 2000, from Margaret A. O’Neill to Director, Office of Hearings and Appeals, DOE. Secondly, Ms O'Neill asks that the Office of Hearings and Appeals order Personnel to stop destroying all records responsive to her FOIA request.(1) Id. Finally, Ms O’Neill asks that a more thorough search be conducted. Id.

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 ¶ 80,132 (1988).

In her Appeal, Ms O’Neill contends a further search for information responsive to her request should be conducted. She claims she has received, from another source, copies of electronic mail messages that were responsive to her request but were not released by Personnel. For this reason, Ms O’Neill believes that the search Personnel conducted was incomplete. In fact, Personnel has recently informed us that it has found additional responsive information. For that reason, we will remand the matter to Personnel to release the responsive information.

Personnel has not yet determined whether it is possible to search for information deleted from individuals’ computers.(2) Ms O’Neill first requested on Appeal that she wanted all deleted electronic records to be searched. We believe this is a clarification of her original request, not a new request. Therefore, we will also remand the matter for a determination on this issue.

It Is Therefore Ordered That:

(1) The Appeal filed by Margaret A. O’Neill, on January 18, 2000, Case No. VFA-0552, 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 Office of Headquarters and Executive Personnel Services of the Department of Energy, which shall issue a new determination in accordance with the instructions set forth above.

(3) This is a final Order of the Department of Energy from which any aggrieved party may seek judicial review pursuant to the provision of 5 U.S.C. § 552(a)(4)(B). Judicial review may be sought either in the district where 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 17, 2000

(1) It has long been understood that the receipt of a FOIA request suspends the destruction of all documents responsive to that request. Therefore, such an order, were it possible, would be redundant.

(2)The availability of backup copies of deleted electronic mail messages varies within the DOE. It is dependent upon the procedures implemented by those who maintain each Local Area Network.