Government Accountability Project, Case No. VFA-0584, July 18, 2000

Case No. VFA-0584, 28 DOE ¶ 80,102

July 18, 2000

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Government Accountability Project

Date of Filing: June 19, 2000

Case Number: VFA-0584

On June 19, 2000, the Government Accountability Project (GAP) filed an Appeal from a determination issued by the Department of Energy Headquarters Freedom of Information and Privacy Group (DOE/FOI). This determination responded to a request for information 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.

The FOIA generally requires that documents held by the federal government be released to the public upon request. 5 U.S.C. § 552(a)(6)(A). However, Congress has provided nine exemptions to the FOIA setting forth the types of information agencies are not required to release. 5 U.S.C. § 552(a)(6)(B). Under the DOE’s regulations, a document exempt from disclosure under the FOIA shall nonetheless be released to the public whenever the DOE determines that disclosure is not contrary to federal law and in the public interest. 10 C.F.R. § 1004.1.

I. Background

In an April 4, 2000 request, GAP requested from the DOE

Any and all records reflecting the request for payment or reimbursement of legal fees and/or costs associated with litigation in the case of Mark Graf v. Wackenhut Services Limited Liability Company, dated December 16, 1999, and encaptioned Case No. 1998-ERA-37 brought before the U.S. Department of Labor and recently adjudicated. This request is intended to include, but not be limited to - -

· Any and all records reflecting the payment and/or reimbursement of any monies paid by, or agreed to be paid by Department of Energy to the Wackenhut Services LLC company, a subcontractor at the Rocky Flats Environmental Technology Site (RFETS) and/or Kaiser-Hill, Inc., a DOE contractor at the RFETS site, related to or generated in connection with legal claims by Mr. Mark Graf, an employee of Wackenhut. This request is intended to include but not be limited to correspondence, memoranda, invoices, bills, and demands for payment, whether in written or electronic format.

Appeal at 1.

On May 24, 2000, DOE/FOI issued a determination to GAP, stating that at “DOE Headquarters, searches have been conducted by the Office of Safeguards and Security in the Office of Security Affairs and the Office of the Deputy General Counsel for Litigation. The searches by these offices did not locate any documents that are responsive to your request.” Letter from Abel Lopez, Director, DOE/FOI, to Thomas Carpenter, GAP (May 24, 2000). The determination letter went on to explain that the DOE’s “Rocky Flats Field Office is conducting a search for responsive documents. Upon completion of the search and the review of any documents determined to be responsive to your request, that office will provide a final response to you.” Id.

In its Appeal, GAP notes that on

May 23, 2000, the day before the response to me was dated, the General Counsel for the DOE, Ms. Mary Ann Sullivan, testified extensively [before the House Commerce Committee] on the matter of DOE’s reimbursement of contractor litigation costs in whistleblower cases. The matter of whether DOE had reimbursed the contractor in the Mark Graf whistleblower case was specifically discussed at length by Ms. Sullivan.

Appeal at 1.

II. Analysis

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). Nonetheless, "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 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).

As an initial matter, we find that DOE/FOI’s referral of the request to the Office of the Deputy General Counsel for Litigation and the Office of Safeguards and Security was “reasonably calculated to uncover the sought materials,” since the documents requested concerned contractor litigation costs and the respondent in the case at issue, Wackenhut Services Limited Liability Company, provided security services as a subcontractor to the DOE. We thus turn to whether these two offices each conducted an adequate search, basing our determination upon the description of the searches the offices have provided to us. The Deputy General Counsel for Litigation informed us that when he performed the search, which was completed on or before April 26, 2000, he believed that any such records, if they existed, would be located at DOE’s Rocky Flats Field Office (DOE/RF). See Electronic Mail from Marc Johnston, Deputy General Counsel for Litigation, to Steven Goering, OHA (June 23, 2000). He nonetheless consulted with members of his staff familiar with the Graf case, who confirmed that their office would not have responsive documents. Id. We also contacted the Office of Safeguards and Security (OSS), who explained that it, too, believes that “the most likely location of information responsive to the request” is DOE/RF, but that “if any documents responsive to Mr. Carpenter’s request existed in this office . . . they would be located in the Field Operations Division, . . . [which] provides field assistance and policy implementation guidance to” DOE/RF. Memorandum from Lynn Gebrowsky, Office of Safeguards and Security, to Steven Goering, OHA (July 3, 2000). OSS therefore consulted its Desk Officer responsible for DOE/RF in the Field Operations Division, who confirmed that the Field Operations Division had no records responsive to the request. Memorandum of telephone conversation between Victor Hawkins, OSS, and Steven Goering, OHA (July 7, 2000). In addition, after our receipt of the present Appeal, OSS’s Information Management Center performed a search of its computerized document tracking system for responsive documents, and found none. Id.

The appellant cites an abundance of news reports implying at the very least that, as of her testimony on May 23, 2000, the DOE General Counsel may have had documents that would have been responsive to GAP’s request. Appeal at 2-3. However, the issue before us is not whether DOE Headquarters currently has responsive documents, or even whether it had such documents as of the date of DOE/FOI’s May 24, 2000 response. Rather, the pertinent issue is the adequacy of the searches of the two DOE Headquarters offices. In this respect, the numerous reports cited by the Appellant do not help us to determine whether the DOE Headquarters offices searched would have likely had any responsive documents, because those searches were conducted well before the May 23, 2000 congressional hearing. See Freedom of Information Act Request Certification (April 26, 2000) (signed by Marc Johnston, Deputy General Counsel for Litigation); Memorandum from Winnie Lehman, Office of Safeguards and Security, to Abel Lopez, DOE/FOI (May 17, 2000).

Indeed, the reports cited by GAP indicate that the testimony of DOE Headquarters officials at the hearing relied upon information provided by DOE/RF, and that as late as May 18, 2000, DOE/RF officials informed Headquarters that there had been no reimbursement of contractor costs in the Mark Graf whistleblower case. Appeal at 3. Under these circumstances, it is quite possible that further information, and responsive documents, passed from Rocky Flats to Headquarters in the days leading up to the May 23 hearing. However, we certainly cannot expect searches conducted at Headquarters prior to that time to have uncovered such documents.

Based on the descriptions provided to us, we conclude that the searches of the Office of the Deputy General Counsel for Litigation and the Office of Safeguards and Security were reasonably calculated to uncover the records sought by GAP. Though there was not one uniform search method used, each office clearly made a thorough and conscientious effort to locate all responsive documents it might possess, either by notifying knowledgeable employees of the request and asking them to provide any responsive documents or by searching a computerized document tracking system, or both. For the reasons explained above, we will deny the present Appeal.(1)

It Is Therefore Ordered That:

(1) The Appeal filed by the Government Accountability Project, Case No. VFA-0584, is hereby denied.

(2) This is a final order of the Department of Energy from which any aggrieved party may seek judicial review. 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: July 18, 2000

(1) The Appellant is certainly free to file a new FOIA request to DOE Headquarters to obtain documents that DOE/RF may have sent to Headquarters since GAP’s April 4 request. We note, however, that the request has already been referred to DOE/RF for a separate response, and that any responsive documents that existed at DOE/RF at the time of GAP’s request should be subject to DOE/RF’s forthcoming determination.