Case No. VFA-0661, 28 DOE ¶ 80,164

April 19, 2001

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Caron Balkany

Date of Filing: March 19, 2001

Case Number: VFA-0661

This Decision and Order concerns an Appeal that Caron Balkany filed from a determination issued to her by the Department of Energy’s (DOE) Albuquerque Operations Office (AOO). In this determination, AOO informed Ms. Balkany that it did not locate any documents that were responsive to a request for information that she filed under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004. The Appeal, if granted, would require AOO to conduct a further search for responsive materials.

I. Background

Ms. Balkany filed a request in which she sought information concerning “(1) The Department of Energy’s 1989 investigation at Rocky Flats of Department of Justice search warrant allegations of illegal night time burning at Building 771 incinerator at Rocky Flats Nuclear Weapons Plant. This may have been a Tiger Team investigation. The results were made public in 1989, but apparently not the full investigation; and (2) A Letter from Michael J. Norton, U.S. Attorney for the District of Colorado to Deputy Secretary Henson Moore dated December 1, 1989.” On March 2, 2001, AOO issued a determination which stated that a search was conducted at the Rocky Flats Office in Golden, Colorado, and at AOO, and found no documents responsive to Ms. Balkany’s request. See Determination Letter. On March 15, 2001, Ms. Balkany filed the present Appeal with the Office of Hearings and Appeals. In her Appeal, Ms. Balkany challenges the adequacy of the search conducted by AOO.

II. Analysis

The FOIA requires that documents held by federal agencies generally be released to the public upon request. Following an appropriate request, agencies are required to search their records for

responsive documents. 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., David G. Swanson, 27 DOE ¶ 80,178 (1999); Butler, Vines and Babb, P.L.L.C., 25 DOE ¶ 80,152 (1995). In cases such as these, “[t]he issue is not whether any further responsive documents might conceivably exist but rather whether the government’s search for responsive documents was inadequate.” Perry v. Block, 684 F.2d 121, 128 (D.C. Cir. 1982) (emphasis in original).

To determine whether an agency’s search was adequate, we must examine its actions under a “standard of reasonableness.” McGehee v. CIA, 697 F.2d 1095, 1100-01, modified in part on rehearing, 711 F.2d 1076 (D.C. Cir. 1983). This standard “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, 1384-95 (8th Cir. 1985). Furthermore, the determination of whether a search was reasonable is “dependent upon the circumstances of the case.” Founding Church of Scientology v. National Security Agency, 610 F.2d 824 (D.C. Cir. 1979).

In reviewing the present Appeal, we contacted officials at AOO and Rocky Flats to ascertain the extent of the search that had been performed and to determine whether any other documents responsive to Ms. Balkany’s request might reasonably be located. We were informed of the following. Upon receiving Ms. Balkany’s request for information, AOO instituted a search of its Environmental, Health and Safety Division, its Office of Chief Counsel, the DOE Reading Room at the University of New Mexico, and the Rocky Flats Field Office. AOO also indicated that in 1989, the AOO and Rocky Flats offices were raided by the FBI simultaneously. The FBI confiscated all original files pertaining to Rocky Flats that were located at either AOO or Rocky Flats. The FBI did not allow AOO or Rocky Flats to make copies of those files. March 20, 2001 Memorandum of Telephone Conversation between Terry Martin Apodaca, AOO, and Toni Brown, Paralegal Specialist, Office of Hearings and Appeals; March 22, 2001 e-mail message from Terry Martin Apodaca, AOO, to Toni Brown, Office of Hearings and Appeals. We contacted the FOIA Officer at Rocky Flats who informed us that an extensive search was conducted and that no responsive documents were located. March 30, 2001 Memorandum of Telephone Conversation between Mary Hammack, Rocky Flats and Toni Brown, Office of Hearings and Appeals. Rocky Flat’s search included the Office of Chief Counsel, Kaiser Hill and employees of Kaiser Hill’s Records Management Office.

Finally, AOO interpreted Ms. Balkany’s request for the “DOE’s 1989 investigation” as contending that the DOE created a report based on the FBI’s 1989 investigation of Rocky Flats. AOO has informed us that the report Ms. Balkany seeks was not a DOE report, but rather a report prepared by the contractor, Rockwell Corporation, and AOO does not have a copy of that report. March 22, 2001 e-mail message from Terry Martin Apodaca, AOO to Toni Brown. A broader interpretation of that portion of the request would be for any documents concerning illegal night time burning at Rocky Flats that DOE created, even after the raid. We asked AOO and Rocky Flats to look for documents of this type. AOO reported that there were no documents responsive to that request. April 13, 2001 e-mail message from Margaret Sanchez, AOO, to Toni Brown. The Rocky Flats office stated that any reports created after the FBI’s seizure of documents would have been generated by AOO, since the AOO office oversaw the Rocky Flats office. Furthermore, she mentioned that very few current Rocky Flats employees have personal knowledge of the seizure because they started their employment after that event occurred. April 10, 2001 Memorandum of Telephone Conversation between Mary Hammack, Rocky Flats, and Toni Brown, Office of Hearings and Appeals. Given the facts presented to us, we find that AOO conducted an adequate search, reasonably calculated to discover documents at AOO and Rocky Flats that were responsive to Ms. Balkany’s request.

However, we believe that some Headquarters offices may have material responsive to Ms. Balkany’s request. Therefore, we will refer this request to the Headquarters Freedom of Information and Privacy Act Division for a search of Headquarters elements, particularly the Offices of Environment, Safety and Health, the Inspector General, the General Counsel, and the Executive Secretariat for responsive documents. These offices are the Headquarters counterparts of offices that AOO searched and offices that may have received Tiger Team or other documents from AOO or Rocky Flats that would be responsive to Ms. Balkany’s request. Therefore, we will grant Ms. Balkany’s Appeal in part.

It Is Therefore Ordered That:

(1) The Freedom of Information Act Appeal filed by Caron Balkany, Case No. VFA-0661, on March 19, 2001, is hereby granted as set forth in Paragraph 2 below and denied in all other aspects.

(2) This matter is hereby referred to the Headquarters Freedom of Information and Privacy Act Division of the Department of Energy, which shall issue a new determination in accordance with the instructions set forth above.

(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 19, 2001