Case No. VFA-0698

October 18, 2001

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Appellant: Nevada Desert Experience

Date of Filing: September 19, 2001

Case Number: VFA-0698

On September 19, 2001, Nevada Desert Experience (the Appellant) filed an Appeal from a final determination issued on August 9, 2001, by the Department of Energy’s Albuquerque Operations Office (Albuquerque). In that determination, Albuquerque responded to a Request for Information the Appellant filed on April 14, 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. Albuquerque’s determination indicated that it had not located any documents responsive to the Appellant’s request. This Appeal, if granted, would require Albuquerque 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 filed a FOIA request with Albuquerque seeking:

[Information] concerning the activities of the Los Alamos National Laboratory (LANL) and Sandia National Lab (SNL) that are related to the U.S. Space Command’s 'Vision for 2020' program. Specifically, I am requesting all documents with information dating from January 1, 1990, to the present.

April 14, 2001 FOIA Request. On August 9, 2001, Albuquerque issued a determination letter indicating that its searches had failed to locate any documents that were responsive to the Appellant’s April 14, 2001 request. The determination letter indicated that the search had included Los Alamos National Laboratory’s (LANL) Nonproliferation and International Security Division, LANL’s Structural Inorganic Chemistry Group, LANL’s Department of Defense Program Office and Sandia National Laboratory’s technical databases. On September 19, 2001, the present Appeal was filed. According to the Appellant:

The 'Vision for 2020' is a program that involves all three of DOE’s nuclear weapons labs -this is known by virtue of the program’s acknowledgments page contained in the Executive Summary of its 'Long Range Plan.’ Therefore, it is reasonable to expect that DOE documents do exist related to its activities with this program.

Appeal. In support of this contention, the Appellant has submitted a portion of the Vision for 2020 program’s Long Range Plan entitled “Acknowledgments.” This section of the report states:

USSPACECOM and its components wish to thank all the people and organizations whose invaluable assistance broadened our collective perspective, provided a continual reality check and helped us develop a plan to begin shaping our national space capabilities and forces to meet the challenges of the next century.

The remainder of this section of the Long Range Plan consists solely of a list of over 80 individuals and organizations. Three DOE laboratories were included in this list. However, that inclusion does not indicate that DOE’s “involvement” with the program was anything more than peripheral. The fact that the Long Range Plan’s authors wished to thank these departmental elements for assistance in broadening its horizons, providing a reality check and helping in the development of the plan does not indicate that these departmental elements’ involvement with the Vision for 2020 program was significant or substantial. Moreover, it does not suggest that DOE has kept any records concerning the Vision for 2020 program. (1)

Our review of the record does not reveal any inadequacies in Albuquerque’s search for responsive documents. Moreover, we do not assign any weight to the specific argument made by the Appellant. Accordingly, the present Appeal will be denied.

It Is Therefore Ordered That:

(1) The Appeal filed on September 19, 2001, by Nevada Desert Experience, Case No. VFA-0698, 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 situated, or in the District of Columbia.

George B. Breznay

Director

Office of Hearings and Appeals

Date: October 18, 2001

(1)Moreover, even if DOE was substantially involved in this program at one time, the acknowledgment does not suggest that such information was generated subsequent to December 31, 1989. Since the Appellant limited its request to information generated on or after January 1, 1990, any information generated prior to that date would not be responsive to its request.