Case No. VFA-0697

October 18, 2001

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Roger K. Heusser

Date of Filing: September 18, 2001

Case Number: VFA-0697

This Decision and Order concerns an Appeal that Roger K. Heusser filed from a determination issued to him by the Department of Energy’s (DOE) Office of Nuclear and National Security Information (NNS). In this determination, NNS informed Mr. Heusser that it did not locate any documents that were responsive to a request for information that he filed under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004. The Appeal, if granted, would require NNS to conduct a further search for responsive materials.

I. Background

Mr. Heusser filed a request in which he sought information concerning “the well-known memorandum from the Office of Intelligence Officials indicating that I should be prevented 'at all costs’ from testifying to Congress on nuclear nonproliferation in the 1991 timeframe.”

On August 22, 2001, NNS issued a determination which stated that a search was conducted at the Office of Nuclear and National Security Information, the Office of Safeguards and Security, and the Office of Intelligence, and found no documents responsive to Mr. Heusser’s request. See Determination Letter. On September 18, 2001, Mr. Heusser filed the present Appeal with the Office of Hearings and Appeals. In his Appeal, Mr. Heusser challenges the adequacy of the search conducted by NNS.

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., David G. Swanson, 27 DOE ¶ 80,178 (1999); Butler, Vines and Babb, P.L.L.C., 25 DOE ¶ 80,152 (1995). 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, 1384-95 (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 (D.C. Cir. 1979).

In reviewing the present Appeal, we contacted officials at NNS to ascertain the extent of the search that had been performed and to determine whether any other documents responsive to Mr. Heusser’s request might exist. We were informed of the following. Upon receiving Mr. Heusser’s request for information, the NNS official instituted a search of its file room, contacted individuals on staff in the file room and conducted a search of its data base. This search yielded no responsive documents. NNS also informed us that it contacted the Office of Safeguards and Security, and the Office of Intelligence, which also searched their files and found no responsive documents. See September 27, 2001 Memorandum of Telephone Conversation between Richard Lyons, NNS, and Toni Brown, Paralegal Specialist, Office of Hearings and Appeals. Based on the description of the search that these offices performed, we are convinced that the search was adequate.

In his Appeal, Mr. Heusser indicated that the Office of Security Affairs should also have been searched. We contacted that office, which conducted a search at our request and located no responsive documents. See October 12, 2001 Memorandum of Telephone Conversation between Geralyn Praskievicz, Office of Security Affairs, and Toni Brown, OHA. Mr. Heusser also indicated that the document he seeks may have been included among the documents provided to the House Subcommittee on Oversight and Investigations under subpoena (April 1991). He contends that these documents have been returned to the Department of Energy and that the document he requests may still be located with these other materials. We have inquired about those subponeaed records with the Office of NNS and the Office of Security Affairs, and neither office has any of those purportedly subpoenaed documents or is even aware of their existence.

Based on the foregoing, we find no reason to believe that additional responsive documents subject to the FOIA exist at the DOE. We conclude that the search of the Headquarters Office of Nuclear and National Security Information, Office of Safeguards and Security, Office of Intelligence and the Office of Security Affairs for responsive documents was adequate. Accordingly, Mr. Heusser’s Appeal should be denied.

It Is Therefore Ordered That:

(1) The Freedom of Information Act Appeal filed by Roger K. Heusser, Case No. VFA-0697, on September 18, 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 located, or in the District of Columbia.

George B. Breznay

Director

Office of Hearings and Appeals

Date: October 18, 2001