VFA-0728

April 17, 2002

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Graeme Sephton

Date of Filing: March 20, 2002

Case Number: VFA-0728

On March 20, 2002, Graeme Sephton (the Appellant) filed an Appeal from a final determination that the Brookhaven Area Office (Brookhaven) of the Department of Energy (DOE) issued on January 30, 2002. That determination concerned a request for information the Appellant submitted pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004. The determination indicated that no responsive documents were identified as a result of the search conducted in response to the Appellant’s request. In his Appeal, the Appellant asserts that Brookhaven’s search for records was inadequate. If granted, this Appeal would require Brookhaven to conduct a further search.

Background

On December 16, 2001, the Appellant requested information related to a report he says originated at Brookhaven National Laboratory (BNL). The Appellant had obtained a copy of the report through the FOIA from the Federal Bureau of Investigation (FBI). The request for information submitted to the FBI pertained to the FBI investigation of the accident of TWA Flight 800. Request Letter dated December 16, 2001, from Graeme Sephton to Brookhaven (Request Letter). The BNL report referred to an item number 1B28 in a list of items recovered from the accident site. That item had been recovered during an autopsy of one of the victims of the TWA Flight 800 accident. The FBI had asked BNL to perform an analysis of the item. The Appellant requested the results of the analysis. Request Letter.

On December 30, 2001, Brookhaven issued a determination stating that a thorough search was conducted, including contractor-owned records. Determination Letter dated December 30, 2001, from Michael D. Holland, Area Manager, Brookhaven, to Graeme Sephton. Brookhaven found no documents responsive to the request. Id. On March 20, 2002, the Appellant filed this Appeal, challenging Brookhaven’s search as inadequate. Appeal Letter finalized March 20, 2002, from Graeme Sephton to Director, Office of Hearings and Appeals (OHA), DOE (Appeal Letter). The Appellant suggested that contacting the person or persons who “signed off on, or transmitted the analysis and conclusions to the FBI” would be the best way to find copies of the results. Id.

Analysis

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) (Miller); 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).

We contacted Brookhaven to determine what type of search was conducted for documents responsive to the request. Brookhaven informed us that it did contact the scientists responsible for conducting the analysis requested by the FBI. Brookhaven reported that they do not have any responsive records. Apparently, the FBI sent a special agent with the item and it remained in his possession at all times. In addition, any results were immediately delivered to him. At no time did Brookhaven or BNL keep copies of the analysis.

We are convinced that Brookhaven followed procedures which were reasonably calculated to uncover the material the Appellant sought in her request. See Miller, 779 F.2d at 1384-85. The fact that the search did not uncover documents that the Appellant believes may be in the possession of DOE does not mean that the search was inadequate. Brookhaven searched both its records and those of BNL. The persons who analyzed the item were contacted, and they informed Brookhaven and BNL that no records were retained. Nor were any responsive records located. Therefore, we will deny the Appellant’s Appeal.

It Is Therefore Ordered That:

(1) The Appeal filed on March 20, 2002, by Graeme Sephton, Case No. VFA-0728, 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 provision of 5 U.S.C. § 552(a)(4)(B). Judicial review may be sought in the district where 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 17, 2002