Case No. VFA-0577, 27 DOE ¶ 80,282

June 8, 2000

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Mark A. Graf

Date of Filing: May 22, 2000

Case Number: VFA-0577

On May 22, 2000, Mark A. Graf filed an Appeal from a determination issued to him on April 17, 2000, by the Rocky Flats Field Office (Rocky Flats) of the Department of Energy (DOE). That determination responded to a request for information 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. Mr. Graf challenges the adequacy of Rocky Flats’ search for documents responsive to his request.

I. Background

On January 30, 2000, Mr. Graf filed a request for information in which he sought a copy of a November 13, 1996 Memorandum, “Abstract Report of Inspection on ?Alleged Tape Recordings of Conversations at the Rocky Flats Environmental Technology Site’ and Other Management Issues” (S941S094). On April 17, 2000, Rocky Flats issued a determination which stated that it conducted a search for the requested document. However, Rocky Flats stated that it was unable to locate the document. See Determination Letter at 1.

On May 22, 2000, Mr. Graf filed the present Appeal with the Office of Hearings and Appeals (OHA). In his Appeal, Mr. Graf challenges the adequacy of the search conducted by Rocky Flats. Mr. Graf asks that the OHA direct Rocky Flats to conduct a new search for the requested document. See Appeal Letter.

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., Hideca Petroleum Corp., 9 DOE ¶ 80,108 (1981); Charles Varon, 6 DOE ¶ 80,118 (1980). 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 Rocky Flats to ascertain the extent of the search that had been performed and to determine whether any other documents responsive to Mr. Graf’s request might exist. Upon receiving Mr. Graf’s request for information, Rocky Flats instituted a search of the offices that might possibly possess the requested document. Those offices included the Office of Chief Counsel and the Office of Facilities Disposition (the security office). Based on this search, Rocky Flats was unable to locate the responsive document. See Record of Telephone Conversation Between Mary Hammack, Rocky Flats, and Kimberly Jenkins-Chapman, OHA (May 30, 2000). In his Appeal, Mr. Graf states that he confirmed several facts regarding the requested document with the Headquarters FOIA office of the DOE. In light of the unsuccessful search conducted by Rocky Flats, Mr. Graf may wish to pursue his request directly with Headquarters FOIA office.

Given the facts presented to us, we find that Rocky Flats conducted an adequate search which was reasonably calculated to uncover documents responsive to Mr. Graf’s request. Accordingly, Mr. Graf’s Appeal is denied.

It Is Therefore Ordered That:

(1) The Appeal filed by Mark A. Graf, OHA Case No. VFA-0577, on May 22, 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: June 8, 2000