Case No. VFA-0766

October 25, 2002

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: David H. Murphy

Date of Filing: October 1, 2002

Case Number: VFA-0766

On October 1, 2002, David H. Murphy filed an Appeal from a determination issued to him on August 5, 2002, by the Nevada Operations Office (Nevada) of the National Nuclear Security Administration (NNSA). 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 Department of Energy (DOE) in 10 C.F.R. Part 1004. Mr. Murphy asks that Nevada conduct an additional search for documents responsive to his request.

I. Background

Mr. Murphy filed a request for information in which he sought records regarding possible radiation exposure in 1956 and records which may connect him with the 93rd Fighter Squadron of Kirtland Air Force Base in Albuquerque, New Mexico. On August 5, 2002, Nevada issued a determination which stated that it conducted a search for responsive documents, but located no records pertaining to the Appellant.

In addition, with respect to records regarding the 93rd Fighter Squadron, Nevada stated that it conducted a search for records at its Coordination and Information Center in North Las Vegas, Nevada, but was unable to locate any responsive documents. Nevada informed the Appellant that records regarding the 93rd Fighter Squadron are under the jurisdiction of the Department of Defense, U.S. Air Force. It further informed the Appellant that it would transfer his request to the Department of Defense which would then respond directly to the Appellant.

On October 1, 2002, Mr. Murphy filed the present Appeal with the Office of Hearings and Appeals (OHA). In his Appeal, Mr. Murphy challenges the adequacy of search conducted by Nevada and asks that the OHA direct Nevada to conduct another 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. 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 Nevada to ascertain the extent of the search that had been performed and to determine whether any documents responsive to Mr. Murphy’s request might exist. Upon receiving Mr. Murphy’s request for information, Nevada conducted a Master File search of its dosimetry records but located no nuclear weapons testing dosimetry records pertaining to Mr. Murphy. See Determination Letter at 1. This search was conducted by using Mr. Murphy’s last name and his social security number. Id. Nevada further advised Mr. Murphy that records may exist with the Air Force Medical Operations Agency and/or the Defense Threat Reduction Agency and that Mr. Murphy must contact those agencies himself. Id. With respect to Mr. Murphy’s request for information regarding the 93rd Fighter Squadron, Nevada indicated that it conducted a search for records at its Coordination and Information Center (CIC) in North Las Vegas, Nevada. An official at Nevada informed us that the CIC is a repository for historical data on the United States’ nuclear weapons testing program and that it maintains more that 370,000 historical records. See Record of Telephone Conversation between Michael Brown, NNSA/Nevada, and Kimberly Jenkins-Chapman, OHA (October 8, 2002). In conducting this search, an official at Nevada stated that information is listed on an open-net database. Upon entering relevant words on this database such as “93rd” or “Squadron,” various documents surfaced, but none were responsive to Mr. Murphy’s request. Nevada provided Mr. Murphy with a copy of its search results in its Determination Letter. In addition, Nevada determined that records regarding the 93rd Fighter Squadron are under the jurisdiction of the Department of Defense, U.S. Air Force, and therefore transferred Mr. Murphy’s request to that office to respond directly to him.

Given the facts presented to us, we find that Nevada conducted an adequate search which was reasonably calculated to uncover documents responsive to Mr. Murphy’s request. Accordingly, Mr. Murphy’s Appeal should be denied.

It Is Therefore Ordered That:

(1) The Appeal filed by David H. Murphy, OHA Case No. VFA-0766, on October 1, 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: October 25, 2002