Case No. VFA-0750

August 13, 2002

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: International Union of Operating Engineers Fringe Benefit Fund

Date of Filing: July 3, 2002

Case Number: VFA-0750

On July 3, 2002, Mr. Richard Rodriguez on behalf of International Union of Operating Engineers Fringe Benefit Fund (International) filed an Appeal from a determination issued to him on May 17, 2002, by the Brookhaven Area Office (BAO) of the Department of Energy (DOE). That determination responded to a request for information he filed under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004. Mr. Rodriguez challenges the adequacy of BAO’s search for documents responsive to his request.

I. Background

On March 25, 2002, Mr. Rodriguez filed a request for information in which he sought procurement information and copies of any labor and material payment bonds regarding work done at Brookhaven National Laboratory (BNL) by LaFramboise Well Drilling, Inc., covering the period August 2001 through October 2001. On May 17, 2002, BAO issued a determination which stated that it conducted a search for the requested information and did not locate any documents responsive to the request. According to BAO, due to the nature of the work, no bonds were required or obtained. See Determination Letter.

On July 3, 2002, Mr. Rodriguez filed the present Appeal with the Office of Hearings and Appeals (OHA). In his Appeal, Mr. Rodriguez challenges the adequacy of the search conducted by BAO and disputes the assertion by BAO that no bonds exist. Mr. Rodriguez asks that the OHA direct BAO to conduct a new search for the requested information. See Appeal Letter.

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 reviewing the present Appeal, we contacted officials at BAO to ascertain the extent of the search that had been performed and to determine whether any documents responsive to Mr. Rodriguez’ request might exist. Upon receiving Mr. Rodriguez’ request for information, BAO conducted a search of its Business Management Divison records. In addition, the BNL contractor at BNL, the Brookhaven Science Associates, LLC (BSA), was contacted to conduct a search for responsive documents. Based on these searches, neither BAO nor BSA located any records responsive to Rodriguez’ request. BAO stated that due to the nature of the work, no bonds were required or obtained.(1) However, BAO did provide the requester with some contractor-held information, which was not required to be released under the FOIA. In a telephone conversation with officials of BAO, BAO reiterated that its search did not locate documents responsive to the Appellant’s request. See Record of Telephone Conversation between Louis Sadler, BAO, and Kimberly Jenkins-Chapman, OHA (July 31, 2002).

Given the facts presented to us, we find that BAO conducted an adequate search which was reasonably calculated to uncover documents responsive to Mr. Rodriguez’ request. Accordingly, Mr. Rodriguez’ Appeal is denied.

It Is Therefore Ordered That:

(1) The Appeal filed by International Union of Operating Engineers Fringe Benefit Fund, OHA Case No. VFA-0750, on July 3, 2002 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: August 13, 2002

(1) In his Appeal Letter, Rodriguez asserts that “pursuant to the Miller Act § 270(a) contractors are required to furnish payment and performance bonds before any contract is awarded.” See Appeal Letter. This argument is incorrect. BAO has informed us that the work in question involved “drilling wells for testing purposes in the site precharacterization phase of that particular remediation system.” The statutory cite the Appellant refers to relates to construction projects. According to BAO, “the wells were not a part of a remediation system (e.g. pump and treat system) that would be considered a construction project requiring Miller Act performance or payment bonds.” See Electronic Message from Louis Sadler, BAO to Kimberly Jenkins-Chapman, OHA (August 6, 2002).