Case No. VFA-0618, 28 DOE ¶ 80,121

October 31, 2000

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

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

Date of Filing: October 3, 2000

Case Number: VFA-0618

On October 3, 2000, R.E.V. ENG Services filed an Appeal from a final determination that the Albuquerque Operations Office (Albuquerque) of the Department of Energy (DOE) issued on September 21, 2000. That determination concerned a request for information submitted by R.E.V. ENG Services pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004. If the present Appeal were granted, Albuquerque would be required to conduct a further search for responsive documents.

Background

On August 1, 2000, R.E.V. ENG Services submitted a FOIA request for all documents concerning a May 5, 2000 Memorandum from David Fredrickson, Director, Personnel Security Division, Albuquerque, to Carolyn A. Becknell, Acting FOI Officer, Office of Public

Affairs, Albuquerque, including telephone conversation records, letters, electronic mail messages, notes, and drafts. Request Letter dated August 1, 2000, from David E. Ridenour, P.E., R.E.V. ENG Services, to Terry Martin Apodaca, Albuquerque (Request Letter). The May 5, 2000 Memorandum was sent to Ms Becknell, indicating that Mr. Fredrickson had a copy of a report(1) he had prepared on behalf of the Rocky Flats Field Office (Rocky Flats) Chief Counsel’s Office and that he had sent it to Rocky Flats. R.E.V. ENG Services alleges that background information exists regarding Mr. Fredrickson’s decision to send the report to Rocky Flats. Therefore, in its August 1, 2000 Request, R.E.V. ENG Services also asked for any information regarding the decision to send to Rocky Flats the report referenced in the May 5, 2000 Memorandum. Id. On August 9, 2000, Albuquerque sent R.E.V. ENG Services a letter stating that “the results of [the] search for responsive documents have been referred to Ms. Mary Hammack [of Rocky

Flats] for her office’s review as they are responsible for the final releasability determination.” Determination Letter dated August 9, 2000, from Carolyn A. Becknell, Acting Freedom of Information Officer, Office of Public Affairs, Albuquerque, to David E. Ridenour (August 9, 2000 Determination Letter) (emphasis added).

After clarifying their respective roles concerning this request, Rocky Flats and Albuquerque agreed that Albuquerque was the appropriate office to respond to the August 1, 2000 Request. See Memorandum of Telephone Conversation held September 14, 2000, between Janet R. H. Fishman, Attorney-Examiner, OHA; William Schwartz, Staff Attorney, OHA; Terry Apodaca, Albuquerque; Mary Hammack, Rocky Flats; and James D. Long, Jr., Rocky Flats. Thereafter, on September 21, 2000, Albuquerque issued a determination stating that no documents existed that were responsive to R.E.V. ENG Services’ request. Determination Letter dated September 21, 2000, from Carolyn A. Becknell, Acting Freedom of Information Officer, Office of Public Affairs, Albuquerque, to David E. Ridenour (September 21, 2000 Determination Letter).

In response to the September 21, 2000 Determination Letter from Albuquerque, R.E.V. ENG Services filed this Appeal asking for a clarification of the apparent dichotomy between the August 9, 2000 Determination Letter, which seems to indicate that responsive information was sent to Rocky Flats, and the September 21, 2000 Determination Letter, which clearly indicates that Albuquerque has no relevant documentary information to release to the requester. Appeal Letter dated September 26, 2000, from David E. Ridenour, R.E.V. ENG Services, to Director, OHA, DOE (September 26, 2000 Appeal Letter). R.E.V. ENG Services requests any information that was sent to Rocky Flats. Id.

Analysis

In responding to a request for information filed under the FOIA, it is well established that an agency must "conduct a search reasonably calculated to uncover all relevant documents." Truitt v. Department of State, 897 F.2d 540, 542 (D.C. Cir. 1990). "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 Truitt, 897 F.2d at 542. We have not hesitated to remand a case where it is evident that the search conducted was in fact inadequate. See, e.g., Glen Milner, 17 DOE ¶ 80,132 (1988).

We have contacted Albuquerque to determine what type of search was conducted. We now have the full story. Albuquerque contacted David Fredrickson’s office to ascertain whether any documents were prepared in association with the May 5, 2000 Memorandum referenced in the request. Memorandum of Telephone Conversation between Janet R. H. Fishman, Attorney-Examiner, OHA, and Terry Apodaca, Albuquerque (October 5, 2000). Id. We have been told that the May 5, 2000 Memorandum was sent to Rocky Flats by way of an interoffice envelope. Id. Therefore, no shipping form or label would have been generated. Id. According to the information we received, Mr. Fredrickson gave to his assistant verbal instructions for writing the May 5, 2000 Memorandum, so no notes were generated. Id. Mr. Fredrickson did not have any electronic mail or telephone contact or correspondence with Rocky Flats prior to his sending the documents referenced in the May 5, 2000 Memorandum. Id. Finally, Rocky Flats did not know the information referenced in the Memorandum existed at Albuquerque prior to its receipt from Mr. Fredrickson. Therefore, there were no instructions from Rocky Flats to Albuquerque regarding which office would be responsible for reviewing the documents for releasability. Id. Consequently, no documents ever existed at Albuquerque that were responsive to R.E.V. ENG Services’ request, despite the implication from the August 9, 2000 Determination Letter that responsive documents had been sent to Rocky Flats.

Albuquerque’s finely crafted August 9, 2000 Determination Letter indicating that “the results of [the] search for responsive documents” were referred to Rocky Flats was not intended to mislead the requester but rather to give no indication of whether any responsive documents had in fact been found at Albuquerque.(2) The only “result” referred to Rocky Flats by the August 9, 2000 Determination Letter was the fact that there were no responsive documents. Id. Based on the circumstances of this case and the search Albuquerque performed, we are convinced that Albuquerque followed procedures which were reasonably calculated to uncover the material sought by R.E.V. ENG Services in its request. Accordingly, the R.E.V. ENG Services Appeal should be denied.

It Is Therefore Ordered That:

(1) The Appeal filed by R.E.V. ENG Services, on October 3, 2000, Case No. VFA-0618, 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 provision 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: October 31, 2000

(1)The report itself has been the subject of a number of FOIA requests to both Albuquerque and Rocky Flats by R.E.V. ENG Services and others. In fact, the May 5, 2000 Memorandum was written in response to an earlier FOIA request that R.E.V. ENG Services filed with Albuquerque. Albuquerque responded to that request by stating that it had no responsive documents. However, after the determination, Mr. Fredrickson found a copy of the report and sent it to Rocky Flats. He then sent the May 5, 2000 Memorandum to Ms Becknell.

(2)Albuquerque chose this wording because, at the time the August 9, 2000 Determination was written, Albuquerque understood that all FOIA determinations regarding this material, even the existence or nonexistence of the material, were to be made by Rocky Flats, not Albuquerque. This misunderstanding as to which office was primarily responsible was corrected during the September 14, 2000 telephone conversation discussed above.