Case No. VFA-0672, 28 DOE ¶ 80,172

June 14, 2001

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

APPEAL

Name of Petitioner: Anthony Delgado

Date of Filing: May 17, 2001

Case Number: VFA-0672

This Decision and Order concerns an Appeal that Anthony Delgado filed from a determination issued to him by the Department of Energy’s (DOE) FOIA/Privacy Act Division. In that determination the FOIA/Privacy Act Division informed Mr. Delgado that no documents were located that were responsive to a request for information that he 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 the FOIA/Privacy Act Division to conduct a further search for responsive materials.

BACKGROUND

In his request, Mr. Delgado sought documents that discuss radiation exposure as the cause of neurofibromas (multiple nerve tumors). Mr. Delgado also asked for statistical information about DOE employees and DOE contractor employees who may have been afflicted with such tumors. The reformulated request was then assigned to the Headquarters Office of Environment, Safety and Health (E&H).

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, 1384-85 (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 the Office of Environment, Safety and Health to ascertain the extent of the search that had been performed and to determine whether any other documents responsive to Mr. Delgado’s request might reasonably be located. Upon receiving Mr. Delgado’s request for information, the E&H official instituted a search of all personal documents, office documents, library books, and the memories of its employees, and requested the E&H California office to conduct a computer search for information pertaining to neurofibromas in current or former DOE employees. This search yielded no responsive documents.

E&H also informed us that within the morbidity and mortality studies of DOE contractor employees since the early 1970s there were no special analyses of neurofibromas, and the condition was not singled out in the tabular materials in the published reports. E&H further concluded that some individuals included in the studies may have had neurofibromas, without the existence of the tumors being recorded. In order to find out if any of those individuals did have neurofibromas, each death certificate would have to be reviewed on an individual basis. This information is maintained in a database by the National Institute for Occupational Safety and Health, and E&H has no access to it. Memorandum of May 31, 2001, Telephone Conversation between Dr. Gerald Petersen, E&H, and Toni Brown, Paralegal Specialist, Office of Hearings and Appeals.

Based on the foregoing, we find no reason to believe that additional responsive documents subject to the FOIA exist at the DOE. We conclude that the Headquarters’ Office of Environment, Safety and Health’s search for responsive documents was adequate, and that Mr. Delgado’s Appeal should therefore be denied.(1)

It Is Therefore Ordered That:

(1) The Freedom of Information Act Appeal filed by Anthony Delgado, Case No. VFA-0672, on May 17, 2001, 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 located or in the District of Columbia.

George B. Breznay

Director

Office of Hearings and Appeals

Date: June 14, 2001

(1)In an effort to assist Mr. Delgado, the Office of Environment, Safety and Health conducted a search of its public database system called the Human Radiation Experiments Information Management System (HREX). Employing a computerized word search, it located the term “neurofibromas” 22 times. That system is available to Mr. Delgado, as a member of the public, on the internet at http://hrex.dis.anl.gov.