Case No. VFA-0614, 28 DOE ¶ 80,117

October 17, 2000

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Doney, Crowley, Bloomquist & Uda, P.C.

Date of Filing: September 20, 2000

Case Number: VFA-0614

On September 20, 2000, Mr. R. Allan Payne of Doney, Crowley, Bloomquist & Uda, P.C., filed an Appeal from a determination issued to him on August 14, 2000, by the Bonneville Power Administration (BPA) 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. Payne challenges the adequacy of BPA’s search for documents responsive to his request.

I. Background

On June 28, 2000, Mr. Payne filed a request for information in which he sought “copies of documents which relate to, reference, form the basis of or evidence any study, process, analysis, report or survey conducted by or on behalf of the Bonneville Power Administration regarding the survivability of the Direct Service Industries.” On August 14, 2000, BPA issued a determination which stated that it conducted a search for the requested information and identified six documents responsive to Mr. Payne’s request. See Determination Letter.

On September 20, 2000, Mr. Payne filed the present Appeal with the Office of Hearings and Appeals (OHA). In his Appeal, Mr. Payne challenges the adequacy of the search conducted by BPA and states that he is aware that more documents exist that are responsive to his request. Mr. Payne asks that the OHA direct BPA to conduct a new search for the requested information. 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., Native Americans for a Clean Environment, 23 DOE ¶ 80,106 (1993); Marlene R. Flor, 23 DOE ¶ 80,130

(1993). 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 BPA to ascertain the extent of the search that had been performed and to determine whether any other documents responsive to Mr. Payne’s request might exist. Upon receiving Mr. Payne’s request for information, BPA instituted a search of its internal files. Based on this search, BPA located six responsive documents. See Determination Letter at 1. However, before the Appeal, Mr. Payne had a telephone conversation with BPA in which he fully explained his request. BPA conducted another search for responsive documents and located three additional documents. BPA has indicated that its search consisted of reviewing its program files and identifying individuals who would possibly have knowledge of the subject matter in question as the office has undergone several reorganizations. Those individuals were asked to conduct a search of their files. BPA further indicated that it possesses no other documents responsive to Mr. Payne’s request. Given the facts presented to us, we find that BPA conducted an adequate search which was reasonably calculated to uncover documents responsive to Mr. Payne’s request. Accordingly, Mr. Payne’s Appeal is denied.

It Is Therefore Ordered That:

(1) The Appeal filed by Doney, Crowley, Bloomquist & Uda, P.C., OHA Case No. VFA-0614, on September 20, 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: October 17, 2000