Case No. VFA-0689

September 17, 2001

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner:Clifford, Lyons & Garde

Case Number: VFA-0689

Date of Filing:August 16, 2001

On August 16, 2001, Clifford, Lyons & Garde filed an Appeal from a final determination that the Yucca Mountain Site Characterization Office (YMSCO) of the Department of Energy (DOE) issued on August 3, 2001. That determination concerned a request for documents submitted by Clifford, Lyons & Garde pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004. If the present Appeal were granted, Yucca Mountain would be required to conduct a further search for responsive documents.

Background

On July 13, 2001, Billie Pirner Garde, on behalf of Clifford, Lyons & Garde, submitted a FOIA request for “[a]ll documents that form the basis for, lead[] up to or that discuss, refer or relate in any way to the October 24, 2000 amendment to Audit Report SNL-ARC-99-013.” Request Letter dated July 13, 2001, from Billie Pirner Garde to Diane Quenell, Freedom of Information/Privacy Act Officer, YMSCO (Request Letter). Ms. Garde was specifically interested in documents discussing the purpose behind the October 24, 2000 amendment. Id.

Pursuant to the Request Letter, on August 3, 2001, YMSCO issued a determination and produced copies of two memoranda. Determination Letter dated August 3, 2001, from Ms. Quenell to Ms. Garde (Determination Letter). One memorandum was dated January 8, 2001, and was from R.W. Clark to Lake Barrett, Deputy Director, Office of Civilian Radioactive Waste Management. Id. This memorandum provides the names of the participants and other details relating to the October 24, 2000 amendment, and also states the circumstances which formed the basis for the preparation of the amendment. Id. The second memorandum was dated August 1, 2000, and also discusses the amendment. Id.

In response to the Determination Letter from YMSCO, Ms. Garde filed this Appeal, requesting that YMSCO be directed to conduct an additional search, saying the explanation in the memorandum for the creation of the amendment was not credible. Appeal Letter. In support of her Appeal, Ms. Garde contends that YMSCO merely provided copies of documents that had already been produced in response to previous requests, and which Ms. Garde had faxed to YMSCO in connection with the instant request. Id. In addition, Ms. Garde protests YMSCO’s charge to Clifford, Lyons & Garde of one half-hour of search time, totaling $17.32.

Analysis

When an agency conducts a search under the FOIA, it must undertake a search that is “reasonably calculated to uncover all relevant documents.” Weisberg v. United States Dep’t of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983). “The 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. United States Dep’t of State, 779 F.2d 1378, 1384-85 (8th Cir. 1985). 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 response to the Appeal, we contacted YMSCO to determine the scope of the search. Telephone Memoranda dated August 21, 2001 and September 5, 2001. YMSCO informed us it searched numerous times, and in all possible locations, for any and all documents related to the October 24, 2000 amendment. Id. YMSCO stated that the most recent search - the search at issue in this Appeal - did not produce any additional responsive documents. Id. YMSCO stated that it provided Ms. Garde the two previously produced memoranda, which explain the events leading up to the amendment. Id. The memorandum dated January 8, 2001, from R.W. Clark to Lake Barrett specifically discusses the amendment, stating it was issued to correct an error in the original Audit Report. Id. The second memorandum, dated August 1, 2000, is referenced in the January 8, 2001 memorandum, and also discusses the October 24, 2000 amendment. Id. These memoranda were found in previous searches YMSCO made in conjunction with a whistleblower case Ms. Garde was litigating. Id.

Since we find the documents provided to Ms. Garde to be responsive to her request, and YMSCO searched all possible locations, we find the search to be “reasonably calculated to uncover all relevant documents.” We attribute no significance to the fact that the two responsive memoranda bore Clifford, Lyons & Garde’s fax legend and other markings. YMSCO had originally provided these documents to Ms. Garde in response to previous requests, and Ms. Garde later faxed them to YMSCO in connection with the instant request. The fact that YMSCO did not produce copies without the fax legend does not mean that the search was inadequate. YMSCO is not obligated to produce multiple copies of the same documents. Moreover, the fact that the appellant does not agree with the memoranda does not mean that the search was inadequate or that other responsive documents exist. Accordingly, as indicated above, we find that YMSCO conducted a reasonable search for all existing responsive material.

As to the final issue raised in the Appeal, the one half-hour of search time charged to Clifford, Lyons & Garde, we remand this aspect of the Appeal to YMSCO to explain its rationale for assessing Ms. Garde fees for the searches it performed.

It Is Therefore Ordered That:

(1) The Freedom of Information Act Appeal filed by Clifford, Lyons & Garde on August 16, 2001, OHA Case Number VFA-0689, is hereby granted as set forth in paragraph (2) of this Order and denied in all other respects.

(2) This Appeal is remanded to the Yucca Mountain Site Characterization Office so that it may issue a new determination regarding the fees it assessed Billie Pirner Garde regarding her July 13, 2001 Freedom of Information Act request.

(3) 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: September 17, 2001