Case No. VFA-0629, 28 DOE ¶ 80,134

December 11, 2000

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Timothy C. Cronin

Date of Filing: November 14, 2000

Case Number: VFA-0629

On November 14, 2000, Timothy C. Cronin filed an Appeal from a determination the DOE’s Bonneville Power Administration (BPA) issued on August 17, 2000. The 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.

I. Background

Mr. Cronin requested from BPA

a copy of all documents, notes, e-mails or other writings or recordings which relate to, reference or evidence any investigations, requests for waivers or grants of waivers of conflicts of interest for any [BPA] employee or agent including, but not limited to BPA Administrator, Judith Johansen with respect to the power rate case known as WP-02 and the Record of Decision for the Power Subscription Strategy dated December 21, 1998.

Letter from Timothy C. Cronin to Freedom of Information Act Officer, BPA (July 5, 2000). After filing the request, the requester agreed with BPA to narrow the scope of the request to BPA employees who were “policy makers,” including political appointees who worked on the WP-02 Rate Case and the Record of Decision for the Power Subscription Strategy dated December 21, 1998, rather than all BPA employees or agents. The requester defined "policy makers" as those employees with the responsibility to file financial disclosure forms. Electronic mail from Keshmira McVey, Attorney, BPA, to Steven Goering, OHA (November 30, 2000). In response to the request, BPA issued a determination stating that it was “unable to locate any agency records in response to your request.” Letter from Gene Tollefson, Freedom of Information Officer, to Timothy Cronin (August 17, 2000). Mr. Cronin challenges the adequacy of DOE/OR’s search for documents responsive to his request.

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). The FOIA, however, requires that a search be reasonable, not exhaustive. "[T]he 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) (emphasis in original).

Accordingly, we contacted BPA and found out the following regarding its search. The BPA Office of General Counsel searched its ethics files, in particular the file pertaining to the BPA Administrator. Second, all staff in BPA’s General Counsel's office were informed of the request, and asked to produce any responsive documents. Finally, all policy-making BPA employees who worked on the WP-02 Rate Case and the Record of Decision for the Power Subscription Strategy dated December 21, 1998, were contacted to determine if they had knowledge of any responsive documents. This search process produced no responsive documents.(1) In addition, BPA's agency ethics officer was aware of no investigations into possible conflicts of interest with respect to the rate case referenced in the request. Electronic mail from Keshmira McVey, Attorney, BPA, to Steven Goering, OHA (November 30, 2000).

Based on the above descriptions, it appears clear to us that BPA performed a diligent search of locations where responsive documents were most likely to exist. We therefore conclude that BPA's search was reasonably calculated to uncover the records Mr. Cronin sought. Thus, the present Appeal will be denied.

It Is Therefore Ordered That:

(1) The Freedom of Information Act Appeal filed by Timothy C. Cronin, Case Number VFA-0629, 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 11, 2000

(1) BPA did have documents that it did not consider responsive to the request, but that it thought might be of interest to the requester. BPA contacted the requester to find out whether he would like copies of these documents, and subsequently provided copies to the requester. Memorandum of telephone conversation between Keshmira McVey, Attorney, BPA, and Steven Goering, OHA (December 7, 2000).