Case No. VFA-0656, 28 DOE ¶ 80,158

April 10, 2001

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Appellant:CTG Media & PBN News

Date of Filing: March 13, 2001

Case Number: VFA-0656

Gary Scurka of CTG Media & PBN News filed an Appeal from a determination of the Department of Energy's (DOE) Freedom of Information Act and Privacy Act Division (FOIA/PA). The determination responded to a request for information that Scurka 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

Scurka requested records from the DOE involving (1) "The Peacemaker," an action film released in 1997; (2) Dream Works, the company that produced "The Peacemaker;" and (3) Jessica Stern, a former official with the National Security Council, and meetings Stern allegedly had with a DOE official.

In its response to Scurka's request, FOIA/PA stated that a search was conducted by several offices of the DOE, and that no responsive records were found.(1) Scurka then filed the present Appeal,

challenging the adequacy of FOIA/PA’s search for responsive records.

II. Analysis

In evaluating a search for responsive records, "the 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). An adequate search under the FOIA is one that is reasonable, not exhaustive. As one court noted, "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 Weisberg v. Department of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984). We will remand a case for further processing when it is evident that the search conducted was not reasonably calculated to uncover the sought materials. See, e.g., Butler, Vines and Babb, 25 DOE ¶ 80,152 (1995).

In order to assess the adequacy of the search in this case, we contacted the staff of FOIA/PA. In the course of our assessment, we learned that responsive records might exist in the Office of Public Affairs, the Office of Intelligence, and the Office of Nonproliferation and National Security.(2)

Accordingly, we will remand this matter to FOIA/PA to conduct a further search for responsive documents in the custody of the Office of Public Affairs, the Office of Intelligence, and the Office of Nonproliferation and National Security. On remand, FOIA/PA shall ensure that there is a thorough and adequate search for all records responsive to Scurka's request. After a search of these offices has been conducted, FOIA/PA will issue a new determination stating the results of that search.

It Is Therefore Ordered That:

(1) The Freedom of Information Act Appeal filed by CTG Media & PBN News, Case Number VFA-0656, is hereby granted in part as specified in Paragraph (2) below and denied in all other respects.

(2) This matter is hereby remanded to the Freedom of Information Act and Privacy Act Division to issue a new determination in accordance with the instructions set forth in the above Decision and Order.

(3) This is a final Order of the Department of Energy from which any aggrieved party may seek judicial review pursuant to the provisions of 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: April 10, 2001

(1)FOIA/PA did not provide a final determination on two items in Scurka's request. Because the DOE has not yet issued a determination regarding these two items of Scurka's request, they are not before us on appeal at this time. One item, dealing with special atomic demolition munitions, was referred by FOIA/PA to the DOE's Albuquerque Operations Office. The second item is Scurka's request for records about an individual named Phillip Petersen. FOIA/PA, in its determination letter dated February 26, 2001, asked Scurka to provide additional identifying information about Petersen. Scurka did not provide the additional information until April 9, 2001, and sent it to the OHA rather than to FOIA/PA. The OHA has forwarded the additional information to FOIA/PA for processing.

(2)The Office of Public Affairs was not included in the original search for responsive documents. The Office of Intelligence and the Office of Nonproliferation and National Security were included, and both offices reported that they found no responsive documents. It appears, however, that the searches in these offices were limited in scope; the Office of Intelligence, for example, reported that it found no records relating to the "The Peacemaker," but did not mention other items in Scurka's request.