Case No. VFA-0688, 28 DOE ¶ 80,184

August 28, 2001

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Motion for Reconsideration

Name of Petitioner: Nevada Desert Experience

Date of Filing: August 6, 2001

Case Number: VFA-0688

On August 6, 2001, Nevada Desert Experience (Appellant) filed a Motion for Reconsideration (Motion) of a Decision and Order issued to it by the Office of Hearings and Appeals (OHA) of the Department of Energy (DOE). In that Decision, we denied the Appellant’s Appeal regarding its Freedom of Information Act (FOIA) request to the DOE’s Oakland Operations Office (Oakland). Nevada Desert Experience, 28 DOE ¶ 80,174 (2001). In its current Motion, the Appellant requests reconsideration based on one additional material fact it is presenting to this Office for the first time.

Background

On February 12, 2001, the Appellant 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 the Appellant’s request. See February 26, 2001 Determination Letter. In addition, Oakland referred the Appellant to the LLNL Department of Defense Program website and to two books available through the Air Force. On March 9, 2001, the Appellant wrote to Oakland stating that its determination letter was inadequate. Specifically, the Appellant 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 the Appellant’s request. See March 23, 2001 Determination Letter. The Appellant 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 the Appellant’s request. See April 23, 2001 Determination Letter. It further indicated that the Appellant 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 the Appellant’s request were reasonably calculated to uncover all responsive documents.

Id.

On May 22, 2001, the Appellant filed an Appeal with the Office of Hearings and Appeals. In its Appeal, the Appellant challenged the adequacy of the searches conducted by Oakland. Specifically, the Appellant requested that Oakland conduct a more thorough search for DOE-generated documents. See Appeal Letter at 2. We denied the Appeal, stating that Oakland had conducted an adequate search which was reasonably calculated to discover documents responsive to the Appellant’s request. Nevada Desert Experience, 28 DOE at 80,668.

In its Motion, the Appellant asserts that Oakland has stated that the DOE participated in the Commission to Assess U.S. National Security Space Management & Organization, and that it is therefore difficult to believe that not one DOE document was discovered. Motion for Reconsideration Letter from Sally Light, Executive Director, Nevada Desert Experience, to Kimberly Jenkins-Chapman, Staff Attorney, OHA.

Analysis

The DOE FOIA regulations do not explicitly provide for reconsideration of a final Decision and Order. See 10 C.F.R. § 1004.8. However, in prior cases, we have used our discretion to consider Motions for Reconsideration where circumstances warrant. Nathaniel Hendricks, 25 DOE ¶ 80,173 (1996). In the past, we have looked to the standards contained in OHA’s procedural regulations for guidance as to the appropriate substantive standards for use in this type of case. See Ron Vader, 23 DOE ¶ 80,183 at 80,704 (1993). Those provisions require a showing of “significantly changed circumstances” be made before such motions are considered. 10 C.F.R. § 1003.35. According to this regulation, “significantly changed circumstances” include the discovery of material facts which were not known at the time of the initial proceeding. 10 C.F.R. § 1003.35(a)(1). The Appellant’s Motion provides one material fact which, although the Appellant has previously brought to the DOE’s attention, has not been specifically addressed by this Office. Therefore, we have decided to consider this material fact noted by the Appellant in his Motion for Reconsideration.

The Appellant asserts that the DOE participated in the Commission to Assess U.S. National Security Space Management & Organization and provided scientific support for two Air Force books on space activities in the 21st century. Motion for Reconsideration Letter. The Appellant maintains that this first fact indicates that there exist other responsive documents that were not provided to the Appellant. We asked Oakland whether anyone who attended the commission might have notes or other material. Oakland contacted all the Lawrence Livermore National Laboratory participants and reported to us that they did not. Electronic Mail Message from Jack Hug, Attorney-Advisor, Oakland, to William Schwartz, Staff Attorney, OHA, dated August 27, 2001. We do not believe that the information the Appellant seeks exists at DOE. Therefore, we shall deny the Appellant’s Motion for Reconsideration.

It Is Therefore Ordered That:

(1) The Motion for Reconsideration filed by Nevada Desert Experience, on August 6, 2001, Case Number VFA-0688, is hereby denied.

(2) This is a final order of the Department of Energy of 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: August 28, 2001