Case No. VFA-0686

September 4, 2001

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Appellant: Northwest Power Alliance

Date of Filing: August 6, 2001

Case Number: VFA-0686

On August 6, 2001, Northwest Power Alliance (the Appellant) filed an Appeal from a final determination issued on June 13, 2001, by the Department of Energy’s Bonneville Power Administration (BPA). In that determination, BPA responded to a five-part Request for Information filed by the Appellant on May 23, 2001, under the Freedom of Information Act (FOIA), 5 U.S.C. § 552(b), as implemented by the DOE in 10 C.F.R. Part 1004. BPA’s determination indicated that it had only one document that is responsive to the Appellant’s request. BPA released this responsive document to the Appellant. This Appeal, if granted, would require BPA to conduct a further search for responsive documents .

The FOIA generally requires that records held by federal agencies be released to the public upon request. 5 U.S.C. § 552(a)(3). 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).

In the present case, the Appellant argues that “BPA’s assertions that it has ?no [other] responsive documents’ are absurd.” Appeal at 1. In support of the contention that additional relevant documents exist, the Appellant makes two claims. The Appellant claims that BPA must have draft copies of an April 26 letter from four Governors to BPA’s Acting Administrator. The Appellant further claims that the existence of draft copies of this letter is evidenced by documents that it had previously received from BPA. The appellant has not supported this claim. On at least three occasions, we have requested that the Appellant provide OHA with copies of these documents that purportedly show that BPA has draft copies of the April 26 letter. The Appellant has not complied with these requests. In addition, it is not readily apparent to this office that a recipient of a letter would also have draft copies of that letter. Rather, it would seem to be unlikely. Without access to any evidence upon which this contention is purportedly based, we are unable to give it consideration.

The Appellant also claims that an article that appeared in “the May 4 Seattle Post-Intelligencer” supports its assertion that BPA has failed to locate documents responsive to the FOIA request. We have requested, on at least three occasions, that the Appellant provide us with a copy of this newspaper article. The Appellant never complied with these requests. Once again, we are unable to consider a contention in the absence of the supporting documentation.

Our review of the determination letter does not reveal any inadequacies in BPA’s search for responsive documents. Moreover, we are unable to assign any weight to the specific arguments made by the Appellant, since the Appellant has not cooperated with our attempts to obtain the evidence upon which these claims are based. Accordingly, the present Appeal will be denied.

It Is Therefore Ordered That:

(1) The Appeal filed on August 6, 2001 by Northwest Power Alliance, Case No. VFA-0678, is hereby denied.

(2) This Appeal is not subject to judicial review, since by failing to cooperate with our administrative review process, Northwest Power Alliance has failed to exhaust its administrative remedies.

George B. Breznay

Director

Office of Hearings and Appeals

Date: September 4, 2001