Case No. VFA-0668, 28 DOE ¶ 80,170

May 29, 2001

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Alan Hoffmann

Date of Filing: May 1, 2001

Case Number: VFA-0668

On May 1, 2001, Alan Hoffmann filed an Appeal from a final determination that the Albuquerque Operations Office (Albuquerque) of the Department of Energy (DOE) issued on April 16, 2001. That determination concerned a request for information submitted by Alan Hoffmann pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004. If the present Appeal were granted, Albuquerque would be required to conduct a further search for responsive documents.

Background

On January 19, 2001, Alan Hoffmann submitted a FOIA request for “an overview of the scope of beryllium surface levels at the Kansas City Allied Signal-Honeywell Plant.” Electronic Mail Request Letter dated January 19, 2001, from Alan Hoffmann to Terry Apodaca, Office of Public Affairs, Albuquerque (Request Letter). Mr. Hoffmann was specifically interested in the first six months of 1996 but indicated that anything available since 1996 would be satisfactory. Id. On April 16, 2001, Albuquerque issued a determination supplying Mr. Hoffmann with current surface samples. Determination Letter dated April 16, 2001, from Carolyn A. Becknell, Freedom of Information Officer, Office of Public Affairs, Albuquerque, to Alan Hoffmann (Determination Letter). In response to the April 16, 2001 Determination Letter from Albuquerque, Alan Hoffmann filed this Appeal asking that Albuquerque conduct an additional search for records from 1996. Appeal Letter received May 1, 2001, from Alan Hoffmann, to Director, Office of Hearings and Appeals (OHA), DOE (Appeal Letter).

Analysis

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. Department 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. Department 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., David G. Swanson, 27 DOE ¶ 80,178 (1999); Butler, Vines and Babb, P.L.L.C., 25 DOE ¶ 80,152 (1995).

We have contacted the Kansas City Area Office(1) (Kansas City) to determine what type of search was conducted. That office indicated that it conducted a search of its database and other records. Memorandum of May 14, 2001 Telephone Conversation between Janet R. H. Fishman, Attorney-Examiner, OHA, DOE, and David Hampton, Office of Public Affairs, Kansas City. Ms. Hampton indicated that Kansas City did not conduct survey samples for beryllium prior to the year 2000.

Since no beryllium testing was conducted at the Kansas City plant prior to 2000, it is reasonable that no test results were located for the period 1996 to 1999. Nevertheless, Kansas City did perform a database search, though unsuccessful, for such records. Consequently, we conclude that Albuquerque conducted an adequate search for the requested information. Based on the circumstances of this case and the search Albuquerque performed, we are convinced that Albuquerque followed procedures which were reasonably calculated to uncover the material sought by Mr. Hoffmann in his request. Accordingly, the Appeal should be denied.

It Is Therefore Ordered That:

(1) The Appeal filed by Alan Hoffmann, on May 1, 2001, Case No. VFA-0668, 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 the provision of 5 U.S.C. § 552(a)(4)(B). Judicial review may be sought either in the district where 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: May 29, 2001

(1)Requests for information made to Kansas City fall under the purview of Albuquerque.