Case No. VFA-0601, 28 DOE ¶ 80, 109

September 1, 2000

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

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

Date of Filing:August 4, 2000

Case Number: VFA-0601

On August 4, 2000, R.E.V. ENG Services (R.E.V.) filed an Appeal from a determination the Director of the FOIA/Privacy Act Division (Director) of the Office of the Executive Secretariat at the Department of Energy (DOE) issued to the firm on July 14, 2000. In that determination, the Director denied an April 7, 2000 request for information that R.E.V. 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 FOIA requires that a federal agency generally release documents to the public upon request. The FOIA, however, lists nine exemptions that set forth the types of information that a federal agency may withhold at its discretion. 5 U.S.C. § 552(b); 10 C.F.R. § 1004.10(b).

In R.E.V.’s request for information, the firm sought copies of documents related to any proposed or implemented changes in security procedures since General Eugene Habiger allegedly visited the Rocky Flats Environmental Technology Site in August and September 1999, including changes resulting from additional alleged recent visits from two other DOE employees: Mr. Pope and Mr. Lavernier. In his determination, the Director found no documents responsive to the request. In this Appeal, R.E.V. contends that the Director should have found responsive “trip reports recommending changes and RFFO [Rocky Flats Field Office] responses either implementing or contesting changes . . . likely to have resulted from the Lavernier/Pope visits.” In accordance with R.E.V.’s Appeal, we have reviewed the adequacy of the search for responsive documents resulting from the alleged Lavernier/Pope visits.

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). 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) (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 (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). 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).

We have investigated the DOE’s search made in response to the R.E.V. request. In this investigation, we contacted representatives of the Director and the RFFO to ascertain the validity of R.E.V.’s contention that there must exist responsive information in the form of trip reports and RFFO responses recommending changes in security following the alleged Lavernier/Pope visits. Both the Director’s representative and the RFFO FOIA Officer informed us that, at the time of the R.E.V. request, neither Mr. Pope nor Mr. Lavernier had visited the RFFO. See Record of August 28, 2000 Telephone Conversation between Leonard M. Tao, OHA Staff Attorney, and Brenda Washington, DOE FOIA/Privacy Act Office; and Record of August 29, 2000 Telephone Conversation between Leonard M. Tao, OHA Staff Attorney, and Mary Hammack, RFFO FOIA Officer. Thus, since the alleged visits had not occurred at the time of the request, the Director’s representative and the RFFO FOIA Officer confirmed that neither office’s search resulted in any responsive information.(1) Id. We find that the Director and the RFFO searched all of the DOE offices that would likely have responsive information. Since neither of these offices possess responsive information and we have no reason to believe that other DOE offices possess responsive information, we must deny R.E.V.’s appeal.

It Is Therefore Ordered That:

(1) The Appeal R.E.V. ENG Services filed on August 4, 2000, Case No. VFA-0601, is hereby denied.

(2) This is a final Order of the Department of Energy of 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 either 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: September 1, 2000

(1)The RFFO informed us that, although no Lavernier/Pope visit occurred at the time of R.E.V.’s request, there may have been a subsequent Lavernier/Pope visit to the RFFO. However, the RFFO FOIA Officer stated that the RFFO does not have any responsive information from any Lavernier/Pope visit to the RFFO.