R.E.V. ENG Services, Case No. VFA-0565, April 13, 2000

Case No. VFA-0565, 27 DOE ¶ 80,272

April 13, 2000

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: R.E.V. ENG Services

Date of Filing: March 17, 2000

Case Number: VFA-0565

On March 17, 2000, R.E.V. ENG Services (the Appellant) filed an Appeal from a final determination that the Rocky Flats Field Office (RFFO) of the Department of Energy (DOE) issued on March 2, 2000. That determination concerned a request for information submitted by the Appellant 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. In that determination, documents were released to the Appellant. In its Appeal, the Appellant asserts that RFFO’s search for records was inadequate. If granted, this Appeal would require RFFO to conduct a further search.

Background

In a letter dated November 1, 1999, the Appellant requested information pertaining to the visit of General Eugene E. Habiger, Director of Security and Emergency Operations, DOE, to RFFO.(1) He listed four specific items in his request, including:

1) Any and all unclassified documentation in the possession of the U.S. DOE which was specifically generated and/or gathered as a result of the visit and in order to present the status of safeguards and security at Rocky Flats to Gen. Habiger.

2) A listing (only) of the unclassified titles, dates and the office responsible for generating any and all classified documentation in the possession of the U.S. DOE which was generated, gathered and/or used as a reference material in the presentation of the status of safeguards and security at Rocky Flats to Gen. Habiger.

3) Any and all unclassified reports, notes, directions or instructions dealing in any way with the status of safeguards and security at Rocky Flats produced by the DOE or its contractors as a result of the above visit.

4) A listing (only) of the unclassified titles and dates for any and all classified reports, notes, directions or instructions dealing in any way with the status of safeguards and security at Rocky Flats produced by the DOE or its contractors as a result of the above visit.

Request Letter dated November 1, 1999, from David E. Ridenour, P.E., R.E.V. ENG Services, to Mary Hammack, FOIA/Privacy Act Officer, RFFO (Request Letter). On March 2, 2000, RFFO issued a determination releasing four documents to the Appellant. In addition, RFFO identified two classified documents that needed to be sent for review to DOE Office of Declassification.

On March 17, 2000, the Appellant filed this Appeal, alleging that RFFO’s search for documents was too narrow. Appeal Letter dated March 9, 2000, from David E. Ridenour, P.E., R.E.V. ENG Services, to Office of Hearings and Appeals (OHA) (Appeal Letter ). The Appeal contends “[t]he request covered information used to prepare for the visits, information presented during the visits, and information resulting from the visits” of General Habiger. Id. at 2. The Appellant believes that RFFO only looked at a portion of the information that was generated in preparation for the visits. Further, the Appellant believes that only DOE’s contractor was searched for documents. 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).

The Appellant is requesting anything connected to General Habiger’s visits to RFFO that was generated either prior to, during, or after those visits. It is our understanding that virtually no documents were created prior to General Habiger’s visit. Memorandum of Telephone Conversation dated March 30, 2000, between Mary Hammack, FOI/Privacy Act Officer, RFFO, and Janet R. H. Fishman, Attorney-Examiner, OHA, DOE. We contacted RFFO to determine what type of search was conducted. We were told that the Facilities Disposition office was contacted initially to determine if it had any information in its possession. Facilities Disposition indicated that Communications--Tours and Visits should be contacted as well as Kaiser Hill Company L.L.C. Security (Kaiser-Hill) and Wackenhut Services, L.L.C. (Wackenhut). Kaiser-Hill and Wackenhut responded that they had no relevant documents. We specifically asked about the documents the Appellant alleged in the Appeal Letter should have been created, i.e., “Pope/Lavernier notes, findings, report or similar document providing the results of their weeks long investigation and the training documents, shift orders and post orders [Wackenhut] produced for the guard force to implement the use of hardened fighting positions.” Appeal Letter at 1. RFFO indicated that it does not have any notes, findings, reports, or other documents from either Mr. Pope or Mr. Lavernier.(2) See Memorandum of Telephone Conversation dated April 4, 2000, between Mary Hammack, FOI/Privacy Act Officer, RFFO, and Janet R. H. Fishman, Attorney-Examiner, OHA, DOE. Further, Wackenhut did not create any training documents, shift orders, or post orders either prior to or during General Habiger’s visit. As of the date of the Appellant’s request, none of these documents had been created following General Habiger’s visit. Id.

The Appellant asserts also that RFFO’s response--namely, “no classified [documents] were produced by the DOE’s contractors”-- shows that a whole category of information, i.e., DOE generated documents, were omitted from the search. Appeal Letter at 1. This is incorrect. In fact, as stated in the determination letter, RFFO, Kaiser-Hill, and Wackenhut were all searched for responsive documents. Determination Letter dated March 2, 2000, from Mary Hammack, FOI/Privacy Act Officer, RFFO, to Mr. David E. Ridenour, P. E. RFFO admits that the sentence was improperly worded but was intended to reiterate that both the DOE contractors and DOE offices were searched for documents. Memorandum of Telephone Conversation dated April 4, 2000, between Mary Hammack, FOI/Privacy Act Officer, RFFO, and Janet R. H. Fishman, Attorney-Examiner, OHA, DOE. Six documents were found at RFFO, four of which were released to the Appellant and two that must be reviewed by the DOE Office of Declassification.

We are convinced that RFFO followed procedures which were reasonably calculated to uncover the material sought by the Appellant in its request. See Miller v. Department of State, 779 F.2d 1378, 1384-85 (8th Cir. 1985). The fact that the search did not uncover the documents that the Appellant believes may be in the possession of DOE does not mean that the search was inadequate. In the Appeal, the Appellant alleges that General Habiger personally assured him that he would “leave no stone unturned.” Appeal Letter at 1. The Appellant is apparently convinced that General Habiger’s comment proves that more documents must exist. We are unpersuaded by this argument. RFFO searched the appropriate offices and found only the four documents it released to the Appellant and the two classified documents that must be reviewed by the DOE Office of Declassification. The Appellant has not directed us to any other office at RFFO that should be searched, but merely asserts that there must be more information. Mere speculation that an as yet discovered document may exist does not undermine the conclusion that the agency conducted a reasonable search for responsive documents.

Conclusion

RFFO conducted a search reasonably calculated to uncover the material sought by the Appellant in its request. RFFO searched both DOE and its contractors administrative records and four documents were released to the Appellant. Therefore, we will deny the Appellant’s Appeal.

It Is Therefore Ordered That:

(1) The Appeal filed on March 17, 2000, by R.E.V. ENG Services, Case No. VFA-0565, 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 provision of 5 U.S.C. § 552(a)(4)(B). Judicial review may be sought 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: April 13, 2000

(1)The Appellant sent an identical FOIA request to DOE Headquarters on August 13, 1999. DOE responded on September 23, 1999, transferring the request to RFFO.

(2)Both Mr. Pope and Mr. Lavernier are DOE employees who, according to the Appellant, conducted several weeks of review and observation at RFFO. Appeal Letter at 1.