Case No. VFA-0642, 28 DOE ¶ 80,146

February 1, 2001

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

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

Date of Filing: December 26, 2000

Case Number: VFA-0642

On December 26, 2000, David Ridenour (Ridenour) of R. E. V. Eng. Services (REV) filed an Appeal from a determination issued to him in response to a request for documents that REV 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 December 13, 2000, by the Rocky Flats Field Office (RFFO). This Appeal, if granted, would require that RFFO perform an additional search.

I. Background

In a previous case, Ridenour had submitted a request for information under the FOIA to the RFFO. See R.E.V. Eng. Services, OHA Case Nos. VFA-0600/0604, 28 DOE ¶ 80,115 (2000). The OHA attorney responsible for processing that case had telephone conversations with an attorney at RFFO in order to adjudicate that appeal related to the request. Id. In a memorandum memorializing one of those conversations, the OHA attorney referred to a “belief” in the Office of Chief Counsel (OCC) that “there is a substantial likelihood of further proceedings by Mr. Ridenour against the DOE.” 28 DOE ¶ 80,115. OHA used this information to support its decision to uphold the RFFO’s nondisclosure of a document under one of the FOIA exemptions. Id.

On October 10, 2000, Ridenour submitted another FOIA request to RFFO for “information pertaining to RFFO’s Office of Chief Counsel’s ?belief that there is a substantial likelihood of futher proceedings by Mr. Ridenour against the DOE.’ ” Letter from Ridenour to RFFO (October 16, 2000) (Request). Ridenour referenced the telephone memorandum previously mentioned. On December 13, 2000, the RFFO FOIA/Privacy Act Officer issued a determination letter stating that no responsive records were located. Letter from RFFO to Ridenour (December 13, 2000) (Determination Letter). On December 26, 2000, Ridenour filed this Appeal. Letter from Ridenour to Director, OHA (December 26, 2000). He argued that because OHA considered the OCC’s anticipation of future litigation important enough to memorialize and use in its decision making, the OCC must have documentation of that belief in its files. Appeal at 1-2.

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 RFFO to ascertain the scope of the search. The FOIA/Privacy Act Officer informed us that the original request was sent to the OCC on October 23, 2000 for a search of its files. The OCC searched its files and stated that “there are no records of which this office is aware that pertain to RFFO’s Office of Chief Counsels’ belief that there is a substantial likelihood of further proceedings by Mr. Ridenour against the DOE.” Letter from James Long, Attorney, OCC to Mary Hammack, FOIA/Privacy Act Officer (October 23, 2000); Electronic Mail Message from James Long to Valerie Vance Adeyeye, OHA Staff Attorney (January 25, 2001). The OHA attorney who adjudicated Case No. VSO-0600/0604 informed us that Ridenour had received a copy of the telephone memorandum that memorialized the pertinent conversation between OHA and OCC. Memorandum of Conversation between Robert Palmer and Valerie Vance Adeyeye, OHA Staff Attorneys (January 11, 2001). We therefore find that the agency conducted a search reasonably calculated to uncover the responsive material.

Moreover, we find no evidence that the statement that Ridenour touts as OCC policy amounts to more than verbal conjecture by an OCC staff member that an individual who has filed several federal and administrative cases recently (including nine FOIA appeals in the past ten months) is likely to engage in future litigation. See R.E.V. Eng. Services, Case No. VFA-0636, 28 DOE ¶ 80,137 (2001); Case No. VFA-0626, 28 DOE ¶ 80,131 (2000); Case No. VFA-0618, 28 DOE ¶ 80,121 (2000); Case No. VFA-0605, 28 DOE ¶ 80,116 (2000); Case No. VFA-0601, 28 DOE ¶ 80,109 (2000); Case Nos. VFA-0600/0604, 28 DOE ¶ 80,115 (2000); Case No. VFA-0576, 27 DOE ¶ 80,278 (2000); Case No. VFA-0565, 28 DOE ¶ 80,272 (2000). Accordingly, this Appeal should be denied.

It Is Therefore Ordered That:

(1) The Freedom of Information Act Appeal filed by R.E.V. Eng. Services December 26, 2000, OHA Case Number VFA-0642, 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: February 1, 2001