Case No. VFA-0625, 28 DOE ¶ 80,132

December 8, 2000

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Linda G. Shown

Date of Filing: November 3, 2000

Case Number: VFA-0625

On November 3, 2000, Linda Shown, Esq. (Shown) filed an Appeal from a determination issued to her in response to a request for documents concerning Lester Mays that Shown submitted 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 determination was issued on October 19, 2000, by the Oak Ridge Operations Office (Oak Ridge). This Appeal, if granted, would require that Oak Ridge perform an additional search.

I. Background

Lester Mays was employed by Tennessee Eastman (then the civilian contractor at the Oak Ridge site) from September 1944 to May 1945. Memorandum of Telephone Conversation between Amy Rothrock, Authorizing Official, Oak Ridge, and Valerie Vance Adeyeye, Office of Hearings and Appeals (OHA) Staff Attorney (November 28, 2000). Mr. Mays worked at what is now the Y-12 plant in Oak Ridge. Id. According to Shown, when Mr. Mays left Tennessee Eastman, he brought home a container filled with a thick white substance that he had scraped from machinery during his employment at the plant. Letter from Shown to Director, OHA (November 3, 2000) (Appeal). After Mays’ death his widow called “someone in authority” to remove the substance from her home, and two “government workers” dressed in “full protective gear and with protective equipment” went to the residence and removed the container. Id. Mays’ widow requested (but never received) either a report on the contents of the container or a receipt for the container. Appeal at 2.

On August 30, 2000, Shown filed a FOIA request with Oak Ridge on behalf of Lester Mays’ son for “a copy of the complete file pertaining to his father . . . including but not limited to medical records, work related records, and any other information regarding Mr. Lester H. Mays.” Letter from Shown to Oak Ridge (August 30, 2000). The request did not, however, mention the alleged removal of the substance from the home. Oak Ridge searched DOE historical files and found responsive personnel records that included some medical records. Memorandum of Telephone Conversation between Amy Rothrock, Oak Ridge, and Valerie Vance Adeyeye, OHA Staff Attorney (November 28, 2000). Oak Ridge released those records to Shown along with the determination on October 19, 2000. Letter from Oak Ridge to Shown (October 19, 2000). Shown then filed this Appeal, contending that

additional records pertaining to Lester Mays “must exist” because of the circumstances surrounding the removal of the mysterious substance from the Mays home in the 1960s. Appeal at 2. Mays’ family believes that his death was caused by radiation exposure during his employment at Oak Ridge, and they allege that Oak Ridge should have responsive records in its possession relating to what they believe was his radiation exposure. Id.

II. Analysis

A. ADEQUACY OF SEARCH

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. United States Dep’t 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. United States Dep’t 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 ¶ 80,102 (1988).

We contacted Oak Ridge to ascertain the scope of the search, particularly in light of Shown’s description of the removal of the container. Oak Ridge informed us that they were not aware of the container incident that allegedly occurred in the 1960s. Memorandum of Telephone Conversation between Amy Rothrock, Oak Ridge, and Valerie Vance Adeyeye, DOE Staff Attorney (November 28, 2000). As a result, Oak Ridge had performed its search using Mr. Mays’ Social Security number, and limited its search to DOE historical files. Id. If an accident occurred in the 1940s, the Health Physics Department would have generated a memo about the incident. Id. Oak Ridge also searched for any Health Physics files regarding Mr. Mays, and found no responsive material. Id. Oak Ridge did not search the Y-12 facility because the plant did not begin keeping detailed records on employees until the 1950s, over five years after Mr. Mays left Tennessee Eastman. Id. The Y-12 facility retained only a personnel card on each World War II-era employee, unless the individual was sick or involved in a hazardous material spill. Id. As for the allegation of radiation exposure, radiation exposure records were not initiated until the mid-1950s, after Mr. Mays had left the facility. Id. We therefore find that Oak Ridge conducted a search reasonably calculated to uncover the responsive material, i.e., records relating to a World War II-era employee. Accordingly, this Appeal should be denied. (1)

It Is Therefore Ordered That:

(1) The Freedom of Information Act Appeal filed by Linda Shown on November 3, 2000, OHA Case Number VFA-0625, 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 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: December 8, 2000

(1)Because the request did not contain any information about the alleged removal of the canister from the Mays residence, Oak Ridge was unaware of the incident. However, after we notified Oak Ridge of Shown’s allegation, Oak Ridge agreed to initiate a search of Y-12 files for information relating to the 1960s incident. Memorandum of Telephone Conversation between Amy Rothrock, Oak Ridge, and Valerie Vance Adeyeye, OHA Staff Attorney (November 28, 2000). At Oak Ridge’s request, Shown provided additional information about the incident to the FOIA office in order to facilitate the new search. Letter from Shown to OHA (November 29, 2000). That search is ongoing.