Case No. VFA-0703

January 15, 2002

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner:Caron Balkany

Date of Filing:October 31, 2001

Case Number: VFA-0703

On October 31, 2001, Caron Balkany appealed a determination issued by the Office of the Inspector General (OIG) of the Department of Energy (DOE) under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by DOE in 10 C.F.R. Part 1004. In her appeal, Ms. Balkany contends that the OIG had failed to conduct an adequate search for documents responsive to FOIA requests that she had filed. For the reasons detailed below, we find that the OIG conducted an adequate search for responsive documents and deny Ms. Balkany’s appeal.(1)

I. BACKGROUND

Ms. Balkany filed FOIA requests with DOE seeking documents concerning a Tiger Team or other DOE investigation of allegations of illegal nighttime burning at the Rocky Flats Nuclear Weapons Plant in 1989. Additionally, Ms. Balkany sought a copy of a letter from Michael J. Norton, U.S. Attorney for the District of Colorado, to Deputy Secretary Henson Moore dated December 1, 1989.

On September 20, 2001, the OIG issued a determination in response to Ms. Balkany’s FOIA requests. With its determination, the OIG provided documents containing information concerning the OIG’s involvement in a joint agency task force investigation of allegations of environmental crimes at Rocky Flats as well as information on illegal burning at Rocky Flats and the Tiger Team

investigation.(2) The OIG also indicated that it had been unable to locate a copy of the letter from Mr. Norton to Deputy Secretary Moore. Ms. Balkany then filed an appeal in which she challenged the adequacy of the OIG search based on her belief that the OIG would have located a copy of the DOE Tiger Team report and a copy of the letter from Mr. Norton to Deputy Secretary Moore if its search had been adequate.

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). In these cases we have held that “[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, 1384-85 (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, 834 (D.C. Cir. 1979).

In reviewing this appeal, we contacted Ruby Isla, an attorney-advisor with the OIG, to obtain information concerning the search that had been conducted for documents responsive to Ms. Balkany’s FOIA requests by the OIG’s Office of Investigations (Investigations), Office of Inspections (Inspections) and Office of Audit Services (Audit). See Electronic Mail Messages from Ruby Isla to Linda Lazarus, Staff Attorney, Office of Hearings and Appeals (various dates). Ms. Isla informed us that Audit had no involvement with the 1989 investigation and, as a result, did not search for responsive records. Ms. Isla also told us that Investigations found documents that were responsive to Ms. Balkany’s FOIA request by conducting a manual search of older files as well as a database search of the investigative records that are contained in the Energy Inspector General Project Tracking system (EIGPT). (3) Ms. Isla also explained that Inspections had been unable to locate responsive records after conducting a manual review of lists of issued reports and other documentation.(4)

Based on these facts, we find that the OIG conducted a search that was reasonably calculated to discover documents responsive to Ms. Balkany's FOIA requests. As detailed above, Investigations and Inspections both conducted a manual search for responsive documents and Investigations also conducted a database search. As a result of these searches, the OIG found and produced responsive documents. We disagree with Ms. Balkany’s position that the OIG would have found the Tiger Team report or the letter from Mr. Norton to Deputy Secretary Moore if a reasonable search had been conducted. Ms. Isla informed us that the Tiger Team is not a component of the OIG and the OIG did not conduct or participate in the Tiger Team investigations. Id. Moreover, we have no indication that the OIG ever had a copy of the letter from Mr. Norton to Deputy Secretary Moore.

It Is Therefore Ordered That:

(1) As set forth above, the appeal filed by Caron Balkany on October 31, 2001, is dismissed in part and denied in part.

(2) 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: January 15, 2002

(1)Ms. Balkany also appealed a related determination issued by the FOIA and Privacy Act Division of the Office of the Executive Secretariat (FOIA Office) on the grounds that the FOIA Office had failed to conduct an adequate search because it had only requested that the OIG and the Office of Environment, Safety and Health search for documents responsive to her FOIA request. However, this portion of Ms. Balkany's appeal has become moot because the FOIA Office issued a new determination in which it indicated that two additional DOE offices had been asked to search for responsive documents.

(2)Although the OIG found documents that mentioned the Tiger Team investigation conducted by DOE, it was unable to locate the DOE Tiger Team report itself.

(3)Ms. Isla informed us that Investigations searched the following fields – case titles, complaint/allegation information, executive briefs, and names (including names of subjects, suspects, witnesses, and sources of information) – in the EIGPT database for the following terms: Tiger Team; Building 771; Incinerator; Night Time Burning; Norton; Michael Norton; Henson Moore; Moore; Rocky Flats Nuclear Weapons Plant; Rocky Flats; and RFNW. Id.

(4)Ms. Isla also indicated that Inspections did not search the EIGPT database for responsive documents because Ms. Balkany was seeking information about an investigation that occurred in 1989, and Inspections did not start entering documents into the EIGPT database until 1996 or 1997. Id.