Case No. VFA-0644, 28 DOE ¶ 80,144

January 31, 2001

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Kenneth P. Brooks

Date of Filing: January 2, 2001

Case Number: VFA-0644

This Decision and Order concerns an Appeal that was filed by Kenneth P. Brooks from a determination issued to him by the Freedom of Information Officer of the Department of Energy’s (DOE) Albuquerque Operations Office (AOO). In this determination, AOO provided to Mr. Brooks four documents that he requested pursuant to the Freedom of Information Act, 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004. In his Appeal, Mr. Brooks challenges the adequacy of the search for responsive documents.

In his FOIA request, Mr. Brooks sought access to all documents relating to him as a previous DOE employee or as an employee of a DOE contractor, including a 1989 letter from a named DOE attorney to Mr. Brooks’ attorney, all “1990s correspondence” written to or by Martin Marietta or Lockheed Martin or their attorneys, and all documents relating to his security clearance or background investigations. In its response, AOO described the search for responsive documents that was performed. AOO stated that Mr. Brooks’ request was referred to the Offices of Chief Counsel (OCC) and Equal Opportunity (OEO), the Employee Concerns Program (ECP), the Personnel Security Division (PSD), and the Headquarters Office of the Executive Secretariat, Freedom of Information and Privacy Acts Division.

In the determination, AOO said that OCC located four documents that are responsive to Mr. Brooks’ request. However, OCC “stated that ?we could not locate the 1989 letter [from the named DOE attorney to Mr. Brooks’ attorney]. Last year [OCC] did destroy some documents that were in our safe that we believe were related to Brooks’ case. They were destroyed per our records management guidance DOE 1324.2A, Schedule 7, 9, e.’” AOO determination at 2.

The determination further indicated that OEO and ECP searched their files for responsive documents, and were unable to locate any. ECP searched their inactive and active Employee Concerns, Potential Whistleblowers and Whistleblowers files dating from 1992 to the present. Id.

PSD searched for Mr. Brooks’ Personnel Security File, and found it to be located at the Oak Ridge Operations Office. The determination stated that Mr. Brooks’ request was therefore referred to Oak Ridge and to the Headquarters FOI and Privacy Acts Division, and that these offices would respond directly to Mr. Brooks. Id. (1)

In his Appeal, Mr. Brooks alleges that the documents he seeks would have been located in the same files as the documents that were provided to him, and that AOO is withholding responsive documents in an attempt “to cover up their illegal actions.” Appeal at 2. Mr. Brooks provided no evidence to support this allegation.

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).

Based on the description set forth in AOO’s determination, we find that the search for responsive documents in this case was reasonably calculated to uncover the requested information, and it was therefore adequate. However, in view of Mr. Brooks’ allegation that additional documents should have been located in the files in which the four OCC documents were found, we contacted that Office. We were informed that its reading file, in which copies of outgoing correspondence were kept, and its local storage area were searched. No responsive documents were located in the reading file, and no responsive material other than the four identified documents was found in the local storage area. See memorandum of January 25, 2001 telephone conversation between Robert Palmer, OHA Staff Attorney, and Margaret Sanchez, OCC. We conclude that the search for responsive documents was adequate despite Mr. Brooks’ unsupported allegation of a cover up. We will therefore deny Mr. Brooks’ Appeal.

It Is Therefore Ordered That:

(1) The Appeal filed by Kenneth P. Brooks in Case No. VFA-0644 is hereby denied.

(2) This is a final order of the Department of Energy from which any aggrieved party may seek judicial review. 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: January 31, 2001

(1)In the determination, AOO also stated that Mr. Brooks withdrew the portions of his request that involved searching the DOE archives in Atlanta, Georgia for records concerning the Pinellas Plant. In his Appeal, Mr. Brooks argues that this withdrawal was conditioned upon the production of the information that he seeks from the other DOE facilities that were searched. He contends that since he has not received this information, the “Pinellas” portion of his request should not be considered as withdrawn. In the alternative, he attempts to submit a new request for the Pinellas files as a part of his Appeal. As an initial matter, it is possible that Mr. Brooks will receive some or all of the documents that he seeks from the Oak Ridge Operations Office or from the Headquarters FOI and Privacy Acts Division. In any event, the DOE regulations do not allow for the filing of a new FOIA request as part of a FOIA Appeal. See generally 10 C.F.R. § 1004.4, 1004.8. Therefore, if Mr. Brooks does not receive the information that he requested from these offices, he should file a new request for the Pinellas files.