Case No. VFA-0675, 28 DOE ¶ 80,179

July 20, 2001

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Myrtle W. Bowers

Date of Filing: June 1, 2001

Case Number: VFA-0675

On June 1, 2001, Myrtle W. Bowers filed an Appeal from a determination the DOE’s Albuquerque Operations Office (DOE/AL) issued on February 15, 2001. The determination responded to a request for information 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

Ms. Bowers requested from DOE/AL “radiation exposure information for John C. Bowers,” the requester’s late husband. Letter from Myrtle Waynick Bowers to Freedom of Information Officer, DOE/AL (Jan. 20, 2001). Mr. Bowers

started to work with AEC [the Atomic Energy Commission, predecessor agency to the DOE] at the Clarksville Modification Center in 1949 and worked there until 1960 then worked there for Mason & Hanger Inc. without interruption of his employment until late summer of 1965 when they moved much of the operation to Pantex [a DOE facility near Amarillo, Texas]. He chose not to move to Amarillo but took other employment in the Clarksville area . . . .

Electronic mail from Gilbert B. Bowers to Steve Goering, OHA (June 25, 2001).

On February 15, 2001, DOE/AL responded to Ms. Bowers, stating that the “Records Management personnel at our Pantex Plant in Amarillo, Texas, searched for exposure information pertaining to your deceased husband but could not locate any.” Letter from Carolyn A. Becknell, Freedom of Information Officer, DOE/AL, to Myrtle W. Bowers (Feb. 15, 2001).

In her appeal, Ms. Bowers states,

I believe records should be available either at Pantex or in DOE records storage covering his radiation exposure for four primary reasons.

- First, radiation levels were monitored continuously at the Clarksville Modification Center both during AEC’s operation of the Center from 1949

through 1960 and later during MHC’s operation of the Center from 1960 through 1965 so overall information on environmental quality should exist.

• Second, while during the initial years under AEC individual dosage and exposure was not measured[,] it was measured and monitored with individual dosimeters during MHC’s management of the Center so individual dosage and exposure information should be available for at least the period 1960 through 1965.
• Third, MHC’s Chief Counsel did indicate in a message (copy attached) on January 16, 2001 that a container of records from Clarksville had been found at Pantex.
• Fourth, while handling a nuclear warhead [Mr. Bowers] sufferred a work related accident in which part of his index finger was cut off leading to his hospitalization at the base hospital. This occurred before the operations were taken over by MHC and would surely be a matter of record in AEC files for the period from 1949 through 1960.

Appeal at 1.

II. Analysis

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., Butler, Vines and Babb, P.L.L.C., 25 DOE ¶ 80,152 (1995). The FOIA, however, requires that a search be reasonable, not exhaustive. "[T]he 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). In cases such as these, "[t]he 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).

Accordingly, we contacted the Pantex Plant and found out the following regarding its search. First, Pantex personnel explained to us that when the Clarksville site was closed in 1965, “at least some of the records were transferred to the Medina [Texas] site. When Medina closed the following year, 1966, records were transferred from Medina to the Fort Worth Federal Records Center [FRC] and to Pantex, another Mason & Hanger site.” Electronic Mail from Clinton Fitts, Pantex, to Steven Goering, OHA (July 16, 2001);

In response to Ms. Bowers’ request, Pantex Records Management personnel consulted an index of Clarksville/Medina records in its possession, and located an “Annual Report of Radiation Exposure for Clarksville for 1964,” “a file labeled weekly reports from Clarksville,” and 25 boxes “that have some Clarksville records in them.” Id.; Electronic Mail from Clinton Fitts, Pantex, to Steven Goering, OHA (June 27, 2001); Electronic Mail from Clinton Fitts, Pantex, to Steven Goering, OHA (June 26, 2001). However, the Annual Report did not contain Mr. Bowers’ name. Further, Pantex personnel do not believe the weekly reports or the 25 boxes (which, according to its index of records, contain “policy and procedure type files”) would contain exposure records. Electronic Mail from Clinton Fitts, Pantex, to Steven Goering, OHA (June 27, 2001).

Pantex personnel also searched “the BWXT Pantex Inactive Records Database” for information concerning “57 boxes of personnel, medical and payroll records [that] were transferred from Pantex to the Fort Worth FRC by BWXT Records Management last year.” Electronic Mail from Clinton Fitts, Pantex, to Steven Goering, OHA (July 16, 2001). (BWXT is the current DOE contractor operating the Pantex facility.) The database contains an “itemized listing of the records transferred.” Id. This search revealed no responsive documents. Pantex also contacted the Fort Worth FRC to inquire about any other records it might have with respect to the Clarksville site. “The FRC searches records by agency number, specifically code 434 for the DOE. [The FRC] indicated there were no longer any records pertaining to the Medina/Clarksville site.” Id. Finally, DOE/AL accessed a National Archives and Records Adminstration database and determined that the Atlanta Federal Records Center (the center responsible for the region in which Clarksville is located) did not have records identified as being from the Clarksville site. Electronic Mail from Terry Apodaca, DOE/AL, to Steve Goering, OHA (July 16, 2001).

Based on the above descriptions, it appears clear to us that the Pantex Plant and DOE/AL performed a diligent search of locations where responsive documents were most likely to exist. We therefore conclude that the search was reasonably calculated to uncover the records Ms. Bowers sought. Thus, the present Appeal will be denied.

It Is Therefore Ordered That:

(1) The Freedom of Information Act Appeal filed by Myrtle W. Bowers, Case Number VFA-0675, 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 situated, or in the District of Columbia.

George B. Breznay

Director

Office of Hearings and Appeals

Date: July 20, 2001