Case No. VFA-0566, 27 DOE ¶ 80,275

April 24, 2000

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Lisa R. Tunstall-German

Date of Filing: March 28, 2000

Case Number: VFA-0566

On March 28, 2000, the Office of Hearings and Appeals (OHA) received a Freedom of Information Act (FOIA) Appeal filed by Lisa A. Tunstall-German (the Appellant) appealing a determination by the Department of Energy’s (DOE) Office of Headquarters and Executive Personnel Services (Personnel). Personnel issued that determination on September 30, 1999, in response to a request for information submitted by the Appellant in accordance with the provisions of the FOIA, 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004. This Appeal, if granted, would require Personnel to conduct a new search for responsive documents.

I. Background

The present case arises out of a personnel dispute. The Appellant was not selected for a Program Analyst position for which she had applied. Personnel apparently informed the Appellant that she was not selected for the Program Analyst position because she had declined the position. The Appellant claims that she never declined the position. On September 3, 1999, the Appellant filed a FOIA request with Personnel. The request sought “copies of all documentation that was submitted to reflect that [she] declined the position advertised in Vacancy Announcement Number:97-EE20- 0038, Program Analyst, GS-343-13.” (1) On September 30, 1999, Personnel issued a Determination Letter to the Appellant in which it released one document that was responsive to her request, a selection certificate for the above-mentioned program analyst position. (2) The determination letter explained that the selection certificate was the only documentation available and further stated: “You will note that there is no requirement in the Merit Promotion Plan to retain information concerning the reason for declination by an applicant.” (3) Determination Letter at 1 (emphasis supplied). On March 28, 2000, the Appellant filed the present appeal, contending that Personnel’s search for responsive documents was not adequate. (4)

II. Analysis

The FOIA generally requires that records held by federal agencies be released to the public upon request. 5 U.S.C. § 552(a)(3). However, the FOIA lists nine exemptions that set forth the types of information that an agency may withhold. 5 U.S.C. § 552(b)(1)-(b)(9); 10 C.F.R. § 1004.10(b)(1)- (b)(9).

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., Eugene Maples, 23 DOE ¶ 80,106 (1993); Native Americans for a Clean Environment, 23 DOE ¶ 80,149 (1993). 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 (D.C. Cir. 1983), 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).

Personnel has apparently misinterpreted the Appellant’s request. The Appellant was seeking any documents in Personnel’s files that would show that she declined the position, while Personnel’s Determination Letter indicates that it searched for information that would indicate the Appellant’s reasons for declining the position.

Accordingly, we are remanding this request to Personnel. On remand, Personnel must conduct a search for any documents that would indicate that the Appellant declined the Program Analyst position. If Personnel locates any documents responsive to this request, it must issue a new determination letter either releasing or withholding them under an appropriately applied exemption. If Personnel’s search fails to locate any documents that are responsive to the remanded request, it must issue a new Determination Letter describing the search and indicating that no responsive documents were located.

It Is Therefore Ordered That:

(1) The Appeal filed by Lisa R. Tunstall-German on March 28, 2000, Case Number VFA-0566, is hereby granted in part as set forth in Paragraph (2) and denied in all other aspects.

(2) This matter is hereby remanded to the Department of Energy’s (DOE) Office of Headquarters and Executive Personnel Services for further processing 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 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 located, or in the District of Columbia.

George B. Breznay

Director

Office of Hearings and Appeals

Date: April 24, 2000

(1) The Appellant’s request contained several elements; her Appeal, however, focuses on only one of these elements.

(2) The DOE’s FOIA regulations require that an appeal be filed within 30 calendar days after the appellant receives a determination letter. 10 C.F.R. § 1004.8(a). The Appellant has missed this deadline by almost six months. Under these circumstances, we could exercise our discretion to decline jurisdiction over this matter. However, we have decided to consider the present Appeal.

(3) The Determination Letter released several other documents which were responsive to elements of the Appellant’s request that are not at issue in the present case.

(4) The present Appeal also challenges a personnel determination affecting the Appellant. However, this office does not have jurisdiction under the Freedom of Information Act to consider these matters.