Case No. VFA-0718

March 7, 2002

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Appellant:Shirley E. Kates

Date of Filing: February 6, 2002

Case Number: VFA-0718

Shirley E. Kates filed this Appeal from a determination issued to her by the Oak Ridge Operations Office (ORO) of the Department of Energy (DOE). The determination responded to a request for information she 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. In her Appeal, Kates challenges the adequacy of ORO's search for documents responsive to her request.

I. Background

Kates submitted a request for:

any electronically-distributed or any hard copy list developed by any level of ORO's senior management between January 1, 2001 and the current time and which contains the names of DOE employees, including mine, that are or were targeted for elimination from the Federal government.

On September 24, 2001, ORO issued a determination stating that it had found no records responsive to Kates' request. Kates then filed the present Appeal.

In her Appeal, Kates contends that ORO's search was inadequate. She supports this claim by stating that during the week of March 26, 2001, she saw an e-mail version of a document within the scope of the request. She also stated that she saw, at or near the top of the e-mail, the name of a senior manager at ORO.

In addition, Kates states that she spoke with an employee of the Information Resource Management Division at ORO, who has access to tape backups of e-mail messages. The employee told Kates that he had not been asked to search the tape backups in connection with a 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. A FOIA request deserves a thorough and conscientious search for responsive documents, and, in the event of an appeal, we will remand a case where it is evident that the search conducted was inadequate. See, e.g., Hideca Petroleum Corp., 9 DOE ¶ 80,108 (1981); Charles Varon, 6 DOE ¶ 80,118 (1980).

In a case involving the adequacy of the agency's search, however, "the 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). To determine whether an agency's search was adequate, we therefore 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).

We reviewed the search conducted by ORO in order to assess its adequacy. ORO identified three senior managers who would potentially know about the requested documents. Each of the three stated that, to the best of his or her knowledge, no responsive documents existed. ORO also contacted an administrative officer in the Human Resources Division at the Oak Ridge facility. The Human Resources Division reported that no responsive documents were found in its files. On the basis of these responses, ORO concluded that no responsive documents existed.

In addition, we contacted the senior manager, whose name Kates said she saw on the e-mail. We asked her about the e-mail message that Kates claimed to have seen. While the senior manager did recall receiving from the Human Resources Division a hard-copy list of employees who were expected to retire within three years, she stated that she had never seen a list like the one described by Kates.

We also contacted the FOIA office at ORO and were informed that, at the time the request was filed, ORO policy provided for retaining tape backups of e-mail for two weeks.(1) We find no reasonable basis, therefore, to remand this matter for a further search of the backup tapes.

III. Conclusion

Given the facts presented to us, we find that ORO conducted an adequate search that was reasonably calculated to discover documents responsive to Kates' request. The senior manager whom Kates believed to have had a responsive document denied any knowledge of it. In addition, it is unlikely that a copy of the e-mail exists in the backup tapes, since the policy in effect at the time provided for the tapes to be retained for only two weeks. Therefore, we will deny this Appeal.

It Is Therefore Ordered That:

(1) The Appeal filed by Shirley E. Kates, Case No. VFA-0718, 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:n March 7, 2002

(1) In February, 2002, the policy was changed to provide for retaining tape backups of e-mail messages for six months.