Case No. VFA-0564, 27 DOE ¶ 80,274

April 24, 2000

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Barbara Schwarz

Date of Filing: March 13, 2000

Case Number: VFA-0564

On March 13, 2000, Barbara Schwarz filed an Appeal from a determination issued to her on March 1, 2000, by the Office of Counterintelligence (OC) of the Department of Energy (DOE). That determination responded to a request for information she 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. Ms. Schwarz challenges the adequacy of OC's search for documents responsive to her request.

I. Background

Ms. Schwarz filed a request for information in which she sought information concerning German efforts (1) behind the nuclear weapons and other weapons of nations that are hostile to the United States; and (2) behind terrorists acts and wars against the United States or other countries that the United States wants to protect. On March 1, 2000, OC issued a determination which stated that it conducted a search of its files and found no documents responsive to the Appellant’s request. See Determination Letter. On March 13, 2000, Ms. Schwarz filed the present Appeal with the Office of Hearings and Appeals. In her Appeal, Ms. Schwarz challenges the adequacy of the search conducted by OC.

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., David G. Swanson, 27 DOE ¶ 80,178 (1999); Butler, Vines and Babb, P.L.L.C., 25 DOE ¶ 80,152 (1995). 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 OC to ascertain the extent of the search that had been performed and to determine whether any other documents responsive to Ms. Schwarz’ request might exist. Upon receiving Ms. Schwarz’ request for information, OC instituted a search of its systems of records and files. Specifically, OC searched two of its system of records, DOE-81 “Counterintelligence Administrative and Analytical Records and Reports,” and DOE-84 “Counterintelligence Investigative Records.” Based on this search, OC indicated that it found no records responsive to Ms. Schwarz’ request. OC has informed us that these two systems of records are the only two systems of records that would possibly contain responsive information. See March 27, 2000 Record of Telephone Conversation between Gary Chidester, OC and Kimberly Jenkins- Chapman, OHA. Given the facts presented to us, we find that OC conducted an adequate search which was reasonably calculated to discover documents responsive to Ms. Schwarz’ request. Therefore, we must deny this Appeal.

It Is Therefore Ordered That:

(1) The Appeal filed by Barbara Schwarz, OHA Case No. VFA-0564, on March 13, 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: April 24, 2000