Case No. VFA-0760

August 26, 2002

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Todd J. Lemire

Date of Filing: July 16, 2002

Case Number: VFA-0760

On July 16, 2002, Todd J. Lemire filed an Appeal from a determination the DOE’s FOIA/Privacy Act Division (DOE/FOIA) issued on April 22, 2002. The determination responded to a request for information 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.

I. Background

Mr. Lemire requested from DOE “an undeleted copy of the Atomic Energy Commission document entitled ?Conversation with Senator Humphrey and Mr. Doyle Northup on Unidentified Signals, Note by the Secretary,’ dated April 15, 1958,” and “documents that relate to Meeting 1347 on March 28, 1958, . . .” Letter from Abel Lopez, Director, DOE/FOIA, to Todd Lemire (April 22, 2002). In response, DOE/FOIA informed Mr. Lemire that a “search for responsive documents was conducted of the files of the History Division in the Office of the Executive Secretariat. The search, however, did not locate any documents that are responsive to the request.” Id. DOE/FOIA also stated that the “History Division informed us that any documents that may be responsive to your request have been transferred to the National Archives and Records Administration (NARA).” Id. DOE/FOIA provided Mr. Lemire with a contact and address for requesting records from NARA. Id.

II. Analysis

Since Mr. Lemire filed his appeal, we have learned that the History Division does in fact have a document responsive to Mr. Lemire’s request, specifically, a “bound copy of the minutes [of Meeting 1347] that have not had a classification review. Because NARA has the same collection in an unbound, reviewed copy, they can respond to FOIA's much faster.” Electronic Mail from Cliff Scroger, History Division, to Steven Goering, OHA (July 24, 2002). Nonetheless, the DOE must identify all documents in its possession that are responsive to a FOIA request. 5 U.S.C. § 552(a)(3); 10 C.F.R. § 1004.5(b). We will therefore remand this matter to DOE/FOIA so that it may conduct a new search, identify all documents responsive to all items of Mr. Lemire’s request in the possession of DOE, and release to Mr. Lemire information in those documents that is not exempt from the FOIA.(1)

In conducting its new search, DOE/FOIA should consider expanding the scope of its search for responsive documents to include the DOE Nevada Operations Office (DOE/NV). Mr. Lemire points out in his appeal that he was able, via a search of the DOE OpenNet web site, to identify documents located at DOE/NV that appear to be responsive to his request. Appeal at 1. Based on this information, we believe a “search reasonably calculated to uncover the sought materials” should include DOE/NV. Miller v. Department of State, 779 F.2d 1378, 1384-85 (8th Cir. 1985).

It Is Therefore Ordered That:

(1) The Freedom of Information Act Appeal filed by Todd J. Lemire on July 16, 2002, OHA Case Number VFA-0760, is hereby granted as set forth in Paragraph (2) below and is denied in all other respects.

(2) This matter is hereby remanded to the FOIA/Privacy Act Division of the Department of Energy for the issuance of a new determination in accordance with the instructions set forth 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:August 26, 2002

(1) DOE/FOIA may wish to consult with Mr. Lemire to determine if he wants to file a request with NARA, instead of with DOE, for a copy of the minutes of Meeting 1347 or any other documents that he may be able to obtain more quickly from NARA.