Case No. VFA-0705

December 13, 2001

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Collier Shannon Scott

Date of Filing: November 7, 2001

Case Number: VFA-0705

On November 7, 2002, Ms. Christina B. Parascandola, on behalf of Collier Shannon Scott (Collier), filed an Appeal from a determination issued to her on September 25, 2001, by the Freedom of Information and Privacy Act Division (FOIA Division) of the Department of Energy (DOE). That determination responded to a request for information Collier filed under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the Department of Energy (DOE) in 10 C.F.R. Part 1004. Collier challenges the adequacy of the FOIA Division’s search for documents responsive to its request.

I. Background

On April 23, 2001, Collier filed a request for information in which it sought “copies of any and all documents and records in the custody or control of the United States Department of Energy (“DOE”), relating to DOE’s decision to include facilities in Bayonne, New Jersey, and Huntington, West Virginia, on the covered facility list published in the Federal Register on January 17, 2001.” DOE listed both facilities as “atomic weapons employers.” On August 6, 2001, the FOIA Division issued a determination which stated that responsive documents were located in the Office of Environment, Safety and Health (EH). It released 60 pages of responsive documents in their entirety. On May 8, 2001, Collier amended its request to include “the names, birth dates, hiring dates, termination dates, job titles, and social security numbers of employees [at the facilities in question] who were issued dosimetry badges or film badges.” See Determination Letter. On September 25, 2001, the FOIA Division issued a second determination which stated that EH conducted a search for responsive documents pursuant to Collier’s amended request. Id. The determination further stated that EH was determined to be the office most reasonably expected to possess responsive documents. However, the search of EH’s files located no responsive documents. Id.

On November 7, 2001, Collier filed the present Appeal with the Office of Hearings and Appeals. In its Appeal, Collier challenges the adequacy of the search initiated by the FOIA Division. Specifically, Collier contends that (1) DOE unlawfully limited its search to only one office within the agency; (2) DOE should have consulted with its historian and DOE employees responsible for carrying out the agency’s responsibilities under the Energy Employees Occupational Illness Compensation Program Act; and (3) DOE’s denial was conclusory and did not indicate how DOE’s search was reasonably calculated to uncover all relevant documents. Collier asks the Office of Hearings and Appeals (OHA) to direct the FOIA Division to initiate another search for responsive documents.

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., Hideca Petroleum Corp., 9 DOE ¶ 80,108 (1981); Charles Varon, 6 DOE ¶ 80,118 (1980). 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, 1384-85 (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 its Appeal, Collier asserts that DOE “unlawfully limited its search to only one office within the agency.” See Appeal Letter at 3. More specifically, it argues that DOE did not search any of the appropriate field operations offices where DOE may have handled matters related to either or both of the Bayonne and Huntington facilities. Further, it argues that the Office of Worker Advocacy (OWA) was not searched. In addition to these arguments, Collier contends that DOE should have consulted with a historian and DOE employees “reasonably expected to know the location of the information we requested.” Id. at 5. Finally, Collier asserts that the FOIA Division provided no justification for its denial, but “merely provided a conclusory statement that its search of EH files produced no responsive documents.” Id. In addition, it argues that the FOIA Division did not describe any of the measures it took to ensure that its search was reasonably calculated to uncover all relevant documents.

In reviewing the present Appeal, we contacted officials in the FOIA Division to ascertain the extent of the search that had been performed and to determine whether any other documents responsive to Collier’s request might exist. Upon receiving Collier’s request for information, the FOIA Division referred the request to EH and the office of Environmental Management (EM) which both instituted a search of their files. Specifically, EH searched its records and located responsive documents that were contained in a records collection under EM’s jurisdiction. Those documents were released to Collier in their entirety. When Collier amended its request to include personal information relating to employees at the Bayonne and Huntington facilities, EH stated that it conducted another search and found no responsive documents. Officials at EH have informed us that EH and EM would be the only offices that would possibly contain the information requested by the Appellant. They further informed us that the personal information sought by Collier in its amended request would not be the type of information maintained by the government, but would be kept by the private companies involved. See December 4, 2001 Record of Telephone Conversation between Roger Anders, EH, and Kimberly Jenkins-Chapman, OHA.

While the searches conducted in this case were not exhaustive, they were not required to be. The FOIA Division actively fulfilled its duties by contacting the offices most likely to possess documents responsive to Collier’s request, and was not obligated to consult with a historian and other DOE employees as suggested by the Appellant. Nor was the FOIA Division required to describe its search in detail as part of its determination letter. The fact that the search did not uncover documents that Collier believes may be in the possession of DOE does not mean that the search was inadequate. In addition, the FOIA Division has informed us that contrary to the Appellant’s assertion, OWA was searched for responsive documents. According to officials in EH, OWA is a part of EH. When EH conducted its initial search for responsive documents, the documents that were located belonged to OWA. They further explained that OWA extracted that particular set of files from EM. Finally, EH was correct in stating that the personal information sought by Collier would not be the type of information maintained by the government. Personnel records of contractor employees, as in this case, are generally not the property of the DOE and therefore are not releasable by DOE.

Given the facts presented to us, we find that the FOIA Division initiated an adequate search which was reasonably calculated to discover documents responsive to Collier's request. Therefore, we must deny this Appeal.

It Is Therefore Ordered That:

(1) The Appeal filed by Collier Shannon Scott, OHA Case No. VFA-0705, on November 7, 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 situated, or in the District of Columbia.

George B. Breznay

Director

Office of Hearings and Appeals

Date: December 13, 2001