Case No. VFA-0721

April 12, 2002

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Sempra Energy Solutions

Date of Filing: February 11, 2002

Case Number: VFA-0721

On February 11, 2002, Sempra Energy Solutions (Sempra) filed an Appeal from a determination issued to the company in response to a request for documents that Sempra submitted 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. The determination was issued on November 19, 2001, by the Corporate Services Division of the DOE Headquarters Procurement Services (DOE/HQ). This Appeal, if granted, would require that DOE/HQ perform an additional search.

I. Background

This Appeal concerns a FOIA request that William Westcott, Esq. (Westcott), then an attorney with Greenberg Peden, P.C., submitted to DOE/HQ. See Letter from Westcott to DOE FOIA/Privacy Act Division (August 2, 2001). In the request, Westcott asked for “any and all documentation relating to the Energy Savings Performance Contract between Sempra Energy Solutions, Inc. and Hill Air Force Base, Utah 84056, Task Order No. 5 specifically related to the Fusion Lighting installation and Hanger 225 from 1994 to the present.” Id. However, when DOE/HQ then called Westcott to determine whether he had additional information that would help in the search, Westcott was no longer employed at Greenberg Peden. Memorandum from James Webber, DOE/HQ, to Valerie Vance Adeyeye, OHA (March 6, 2002). Nonetheless, Greenberg Peden instructed DOE/HQ to send it the reply. Id. Consequently, on November 19, 2001, DOE/HQ issued a determination letter to Greenberg Peden stating that a search for responsive material was unsuccessful, and that no responsive records exist. Letter from DOE/HQ to Westcott (November 19, 2001) (Determination).

On December 27, 2001, Westcott, now employed by another law firm, contacted DOE/HQ via electronic mail asking for an update of the status of his request. See electronic mail message from Westcott to DOE/HQ (December 27, 2001). DOE/HQ then sent Westcott a copy of the Determination at his new address. See electronic mail message from DOE/HQ to Westcott (January 4, 2002). On February 11, 2002, Westcott appealed the determination on behalf of Sempra, attaching a 1997 letter from Pacific Northwest National Laboratory (PNNL) that discussed a project between PNNL and Sempra at Hill Air Force Base. (1) Sempra asks that OHA order DOE/HQ to conduct another search for responsive records. Letter from Sempra to Director, OHA (February 11, 2002) (Appeal).

II. Analysis

In responding to a request for information filed under the FOIA, it is well established that an agency must “conduct a search reasonably calculated to uncover all relevant documents.” Truitt v. Department of State, 897 F.2d 540, 542 (D.C. Cir. 1990). “The 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 Truitt, 897 F.2d at 542. We have not hesitated to remand a case where it is evident that the search conducted was in fact inadequate. See, e.g., Glen Milner, 17 DOE ¶ 80,102 (1988). We have analyzed the search conducted by DOE/HQ and find that the search was adequate.

DOE/HQ maintains a database of all open contracts, the Procurement and Assistance Data System (PADS). Memorandum of Meeting between James Webber, DOE/HQ and Valerie Vance Adeyeye, OHA (March 14, 2002). Using the information provided in Westcott’s request, DOE/HQ searched this database but found no responsive records. Id. DOE/HQ then requested that the contractor who maintains files of closed and archived contracts perform an additional search for responsive material. Id. That search was also unsuccessful. Id.

Sempra argues that it has evidence of a project that was conducted at Hill Air Force Base with the participation of PNNL, Sempra, and DOE, and that therefore DOE/HQ must have responsive records in its files. Appeal at 1. Westcott submitted a FOIA request to PNNL, and received some documents relating to PNNL’s work on the project. See electronic mail message from Westcott to OHA (March 12, 2002). He also received responsive documents from Hill Air Force Base. Id. According to Westcott, the purpose of the current request is to determine if DOE Headquarters also had any involvement in the project. Id. As proof of DOE Headquarters involvement, Sempra offers a letter from PNNL addressed to Sempra’s predecessor company (CES) that discusses a project at Hill Air Force Base. See Letter from PNNL to CES (February 3, 1997). The project involved PNNL “in its support role to DOE, facilitat[ing] in areas where the state-of-the-art technology posed additional work for CES.” Id.

We find that the PNNL letter, standing alone, is insufficient to prove that responsive records exist at DOE Headquarters. DOE/HQ maintains that PNNL’s acknowledged participation in a project with Sempra (1) does not confirm that the project was conducted via a contract; and (2) does not confirm that DOE was a party to any contract relating to that project, if one existed. See Memorandum of Meeting between James Webber, DOE/HQ and Valerie Vance Adeyeye, OHA (March 14, 2002). The DOE entity that actually participated in the project, PNNL, has released responsive material to Sempra. (2) Thus, Sempra has not provided any evidence that DOE Headquarters was a party to any contract relating to the Hill Air Force Base project.

In addition, DOE/HQ was unaware that Sempra did business under the name of “CES/Way” until Westcott submitted this Appeal in February 2002. See electronic mail message from James Webber, DOE/HQ to Valerie Vance Adeyeye, OHA. (March 20, 2002). When DOE/HQ called Westcott at Greenberg Peden in December 2001 to solicit additional information about his request, Westcott was no longer employed there. Thus, DOE/HQ conducted its search based on information in the original request, a letter that never mentioned the name “CES.” Therefore, we find that DOE/HQ conducted an adequate search reasonably calculated to uncover the material requested by Sempra.

Nonetheless, after we contacted DOE/HQ with information about the company’s old name, DOE/HQ conducted another search of its database of contracts and found a contract related to CES. See electronic mail message from James Webber, DOE/HQ to Valerie Vance Adeyeye, OHA (March 20, 2002). Accordingly, this Appeal is granted in part, and this matter is remanded to DOE/HQ to release any additional responsive material to Westcott or to issue a new determination letter justifying the withholding of any information it redacts from any responsive material it provides to Westcott.

It Is Therefore Ordered That:

(1) The Freedom of Information Act Appeal filed by Sempra Energy Solutions on February 11, 2002, OHA Case Number VFA-0721, is hereby granted as set forth in paragraph (2) of this Order, and denied in all other respects.

(2) This matter is remanded to DOE Headquarters Procurement Services for processing in accordance with the guidance in the Decision above.

(3) 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: April 12, 2002

(1)PNNL is a research laboratory that is managed and operated by Battelle for DOE.

(2)Westcott stated that the documents that PNNL released to him were non-responsive and “wholly irrelevant” to his request. See electronic mail from Westcott to OHA (March 20, 2002). We cannot comment on that matter since that particular request is beyond the scope of this Appeal.