Case No. VFA-0570, 27 DOE ¶ 80,281

May 31, 2000

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: David E. Ridenour

Date of Filing: April 10, 2000

Case Number: VFA-0570

This Decision and Order concerns an Appeal that David E. Ridenour filed from a determination issued to him by the Department of Energy’s (DOE) Albuquerque Operations Office (AOO). In this determination, AOO informed Mr. Ridenour that no documents were located that were responsive to a request for information that 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. The Appeal, if granted, would require AOO to conduct a further search for responsive materials.

In his request, Mr. Ridenour sought access to all records relating to a report that he alleges AOO prepared about him in 1997. Such records were to include communications between AOO and other state and federal offices or private investigatory agencies about the report, documents concerning the cost of the investigation and distribution of the report, and documents concerning the propriety of conducting the investigation and the qualifications of the investigators, such as the mission statement of the Office assigned the work and the job description of David Fredrickson, the author of the report. In its response, AOO informed Mr. Ridenour that the investigator searched for responsive documents “but could not locate any. [Mr. Fredrickson] also stated ? The referenced report was prepared under the direction and auspices of the Office of Chief Counsel (OCC) [at] Rocky Flats Field Office (RFFO). The report and all background materials were turned over to that Office at the conclusion of the investigation. Therefore, the records, as well as the authority for release, remain with OCC, RFFO.’” Determination letter at 1. The letter also stated that the AOO’s Office of Chief Counsel searched for responsive documents, but could not locate any, and that Mr. Ridenour’s request was being transferred to RFFO, which would respond directly to him.

In his Appeal, Mr. Ridenour contests the adequacy of AOO’s search for responsive documents. He argues that it is not credible that the AOO conducted an investigation and prepared a report, yet did not keep a copy of the report. Moreover, Mr. Ridenour contends that he should have been provided copies of the investigating office’s mission statement and the job description of the named investigator. Finally, Mr. Ridenour argues that these and other responsive documents, such as telephone billing records, letters, and timekeeping and pay records exist, and he contends that AOO

should have searched its phone records, mail logs, e-mails, faxes and the word processing system backups and archive tapes for the period during which the report was generated.

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., Butler, Vines and Babb, P.L.L.C., 25 DOE ¶ 80,152 (1995). The FOIA, however, requires that a search be reasonable, not exhaustive. "[T]he 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 Weisberg v. Department of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984). In cases such as these, "[t]he issue is not whether any further documents might conceivably exist but rather whether the government's search for responsive documents was adequate." Perry v. Block, 684 F.2d 121, 128 (D.C. Cir. 1982).

In order to evaluate the adequacy of the search, we contacted the AOO. We were informed that the investigation referred to by Mr. Ridenour was not an investigation of him by AOO, but was instead an inquiry by the Rocky Flats Field Office (RFFO) into its own internal operations, and that the inquiry was conducted entirely at RFFO using RFFO equipment and office space. See May 5, 2000 memorandum from Mr. Fredrickson to Carolyn Becknell, Acting FOI Officer; see also memorandum of May 16, 2000 telephone conversation between Terry Martin Apodaca, AOO, Mr. Fredrickson, and Robert Palmer, Staff Attorney, Office of Hearings and Appeals. Mr. Fredrickson further stated that although the report was drafted in Albuquerque, he worked on a laptop computer offsite in order to minimize distractions, that all hard copies were forwarded to RFFO, and the disks used “were not retained . . . after completion of the inquiry.” Id. With regard to Mr. Ridenour’s contention that he should have been provided with copies of the investigating office’s mission statement and Mr. Fredrickson’s job description, Ms. Apodaca stated that RFFO, and not AOO, was the investigating office and should be in possession of the mission statement, and that AOO erred in not providing a copy of Mr. Fredrickson’s job description to Mr. Ridenour. By letter dated May 18, 2000, AOO provided Mr. Ridenour with the job description.

Based on the foregoing, we find no reason to believe that additional responsive documents exist in AOO’s phone records, mail logs, e-mails, faxes, or the word processing system backups and archive tapes. We further conclude that AOO’s search for responsive documents was adequate, and that Mr. Ridenour’s Appeal should therefore be denied.

It Is Therefore Ordered That:

(1) The Appeal filed by David Ridenour on April 10, 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 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: May 31, 2000