Case No. VFA-0673, 28 DOE ¶ 80,174

June 26, 2001

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Nevada Desert Experience

Date of Filing: May 22, 2001

Case Number: VFA-0673

On May 22, 2001, Nevada Desert Experience (Nevada) filed an Appeal from a determination issued to it on April 23, 2001, by the Oakland Operations Office (Oakland) of the Department of Energy (DOE). That determination responded to a request for information Nevada 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. Nevada challenges the adequacy of Oakland’s search for documents responsive to its request.

I. Background

On February 12, 2001, Nevada filed a request for information in which it sought “information regarding DOE’s activities related to the Vision for 2020 program overseen by the U.S. Space Command.” On February 26, 2001, Oakland issued a determination which stated that it conducted a search at Oakland and the Lawrence Livermore National Laboratory (LLNL) and located a document responsive to Nevada’s request. See February 26, 2001 Determination Letter. In addition, Oakland referred Nevada to the LLNL Department of Defense Program website and to two books available through the Air Force. On March 9, 2001, Nevada wrote to Oakland stating that its determination letter was inadequate. Specifically, Nevada asserted that Oakland did not appear to have searched DOE-wide for documents as originally requested.

On March 23, 2001, Oakland issued a second determination which stated that it conducted another search at Oakland and at DOE Headquarters and located no additional documents responsive to Nevada’s request. See March 23, 2001 Determination Letter. Nevada responded to this letter on April 14, 2001, again stating its dissatisfaction with Oakland’s search for responsive documents. On April 23, 2001, Oakland issued its final determination letter indicating that it conducted two separate and complete searches for documents responsive to Nevada’s request. See April 23, 2001 Determination Letter. It further indicated that Nevada was provided with all documents responsive to its request that were found at the LLNL and that DOE Headquarters located no documents responsive to the request. Id. Further, Oakland stated that the searches conducted in response to Nevada’s request were reasonably calculated to uncover all responsive documents. Id.

On May 22, 2001, Nevada filed the present Appeal with the Office of Hearings and Appeals. In its Appeal, Nevada challenges the adequacy of the searches conducted by Oakland. Specifically, Nevada requests that Oakland conduct a more thorough search for DOE-generated documents. See Appeal Letter at 2.

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., Hideca Petroleum Corp., 9 DOE ¶ 80,108 (1981); Charles Varon, 6 DOE ¶ 80,118 (1980). 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, 834 (D.C. Cir. 1979).

In reviewing the present Appeal, we contacted officials at Oakland to ascertain the extent of the searches that had been performed and to determine whether any other documents responsive to Nevada’s request might exist. Upon receiving Nevada’s request for information, Oakland instituted two separate searches of its database as well as referred Nevada’s request to DOE Headquarters for an additional search. Based on these searches, Oakland located and produced one relevant record that was responsive to Nevada’s request. Oakland has informed us that these searches, including the one conducted at DOE Headquarters, did not locate any other responsive documents. It further stated that searches were conducted in all locations that were likely to have responsive documents. Oakland reiterated that all personnel responsible for the searches were provided with a copy of Nevada’s original FOIA request. See June 20, 2001 Record of Telephone Conversation between Jack Hug, Oakland and Kimberly Jenkins-Chapman, Office of Hearings and Appeals. Given the facts presented to us, we find that Oakland conducted an adequate search which was reasonably calculated to discover documents responsive to Nevada’s request. Therefore, we must deny this Appeal.

It Is Therefore Ordered That:

(1) The Appeal filed by Nevada Desert Experience, OHA Case No. VFA-0673, on May 22, 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 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: June 26, 2001