Case No. VFA-0043, 25 DOE ¶ 80,118

June 22, 1995

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: A. Victorian

Date of Filing: May 24, 1995

Case Number: VFA-0043

On May 24, 1995, Dr. A. Victorian filed an Appeal from a determination issued to him on May 5, 1995, by the Oakland Operations Office (Oakland) of the Department of Energy. That determination denied a request for information submitted by Victorian under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004. This Appeal, if granted, would require Oakland to conduct a further search for responsive documents.

The FOIA requires that documents held by federal agencies generally be released to the public upon request. Pursuant to an appropriate request, agencies are required to search their records for responsive documents. If responsive documents cannot be located, the requester must be told whether the requested record is known to have been disposed of or never to have existed. 10 C.F.R. § 1004.4(d).

I. BACKGROUND

In his FOIA request dated April 9, 1994, Victorian sought documents containing the following information concerning "Project Woodpecker" at Lawrence Livermore National Laboratory (LLNL):

(1) the nature of the project;

(2) the starting date;

(3) the goals and functions; and

(4) the "OPR"<1>.

In its May 5, 1995 determination, Oakland stated that a search had been conducted for documents responsive to Victorian's request, but that no records were found as a result of the search. Oakland specifically stated that information relating to Project Woodpecker had been destroyed.

Victorian filed this Appeal contending that Oakland failed to conduct an adequate search for the requested documents. Victorian specifically complained that a search was conducted only at LLNL and not at any other DOE facility. <2>

II. ANALYSIS

We have held that an FOIA request deserves a thorough and conscientious search for responsive documents. When we find that a search was inadequate, we have consistently remanded the case and ordered a further search for responsive documents. E.g. Eugene Maples, 23 DOE ¶ 80,106 (1993); Marlene R. Flor, 23 DOE ¶ 80,130 (1993); Native Americans for a Clean Environment, 23 DOE ¶ 80,149 (1993). However, the FOIA 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 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, Weisberg v. Department of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984).

In reviewing the Appeal, we contacted the principal person involved with Project Woodpecker at LLNL to ascertain the extent of the search that had been performed and to determine whether any documents responsive to Victorian's request might exist. He stated that Project Woodpecker was a classified project conducted on behalf of another federal agency, whose identity is also classified. At the direction of the other agency, LLNL destroyed or returned certain documents to that agency when Project Woodpecker ended in the summer of 1993. Although there are still some documents concerning Project Woodpecker at LLNL, none of these documents contains information responsive to Victorian's FOIA request. Moreover, the individual assured us that none of the requested records would be at any other DOE office. Victorian has given us no information which would lead us to question the veracity of the foregoing statements.

Based on the factors referred to above, we are convinced that the DOE followed procedures which were reasonably calculated to uncover the material sought by Victorian in his FOIA request and that no such documents are in the possession of DOE. Accordingly, Victorian's Appeal should be denied.

It Is Therefore Ordered That:

(1) The Appeal filed by A. Victorian on May 24, 1995, 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 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: June 22, 1995

<1>/ Victorian does not define the term "OPR" in his FOIA request. DOE understands this term to

refer to the "Office of Principal Responsibility".

<2>/ Victorian raised a number of additional matters which are not properly part of this Appeal:

First, Victorian contends that Oakland did not respond to the FOIA request in a timely manner. This Office has no jurisdiction over this issue. Section 1004.8(a) of the DOE Regulations grants OHA jurisdiction to consider FOIA appeals only in the following circumstances:

When the Authorizing Officer has denied a request for records in whole or in part or has responded that there are no documents responsive to the request . . . or when the Freedom of Information Officer has denied a request for waiver of fees. . .

10 C.F.R. § 1004.8(a).

Second, Victorian requested, for the first time in his Appeal, documents relating to the destruction of Project Woodpecker documents. This request was not included within the original FOIA request, and therefore is not properly part of the Appeal. The Appellant may file a new FOIA request if he seeks to obtain documents which are related to the destruction of the Project Woodpecker documents. It is important to note that Victorian has been informed by Oakland that documents relating to Project Woodpecker had been destroyed. By informing Victorian of the destruction of these documents, Oakland fulfilled its obligation under the FOIA. See 10 C.F.R. §1004.4(d).

Third, Victorian requested answers to questions (as opposed to requesting documents) concerning the Woodpecker Project. For example, Victorian asked a question about DOE's accountability to the General Accounting Office in the event the requested documents have been destroyed. The FOIA does not require an agency to respond to such questions. It simply requires that an agency produce documents which are in existence and not exempt from disclosure. See 10 C.F.R. § 1004.4(d)(1).