Case No. VFA-0641, 28 DOE ¶ 80,140 January 24, 2001

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Appellant: Barbara Schwarz

Date of Filing: December 22, 2000

Case Number: VFA-0641

Barbara Schwarz filed this Appeal from a determination issued by the Department of Energy (DOE) Headquarters Freedom of Information and Privacy Act Division (FOI/PA). This 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 Schwarz sent a letter to the Office of Hearings and Appeals, dated March 22, 2000, that contained both an appeal of an earlier FOIA determination, and a request for additional material under the FOIA. We issued a Decision and Order with respect to the appeal portion of the letter, designated Case No. VFA-0567, in Barbara Schwarz, 27 DOE ¶ 80,273 (2000).

The request portion of Schwarz's letter was forwarded to the FOI/PA for processing pursuant to the FOIA. In a Determination Letter dated December 4, 2000, FOI/PA stated that it was providing Schwarz with documents responsive to some of her requests, and informed her that no responsive documents were located for her other requests. Schwarz then filed this appeal, challenging the adequacy of the search for responsive documents, a lack of response to a request for a fee waiver, and a failure to provide a "search declaration."

II. Analysis A. Adequacy of Search

Schwarz claims that the search for responsive records was inadequate because she was not provided with two categories of

records. The first category consists of records pertaining to a civil suit in the Federal District Court for the District of Columbia, Case No. 00-1610-HHK, which Schwarz says she filed against the Department of Energy. The second category consists of records that Schwarz describes as pertaining to "a town or village with name Chattanooga in Utah (Note: not Tennessee)."

Neither the civil case nor the town of Chattanooga, Utah, are mentioned in Schwarz's request letter. Furthermore, no reasonable interpretation of Schwarz's request letter would suggest that records pertaining to the civil case or to Chattanooga, Utah would be responsive to her request. An appellant may not use the appeal process to expand the scope of a FOIA request. F.A.C.T.S., 26 DOE ¶ 80,132 (1996); Energy Research Foundation, 22 DOE ¶ 80,114 (1992); Cox Newspapers, 22 DOE ¶ 80,106 (1992); Bernard Hanft, 21 DOE ¶ 80,134 (1991); John M. Seehaus, 21 DOE ¶ 80,135 (1991). We will therefore deny this portion of Schwarz's appeal.

B. Request for a Fee Waiver The DOE FOIA regulations state that the DOE will provide up to two hours of search time and up to 100 pages of duplication without cost, and may charge fees for processing FOIA responses that exceed those limits. In addition, the regulations provide for certain circumstances in which the DOE may waive the fees. 10 C.F.R. § 1004.9.

Schwarz was not charged any fees in connection with her FOIA request. Nevertheless, she claims in her appeal that FOI/PA "ignored" her request for a waiver of fee. As we have explained before to Schwarz, a request for a "fee waiver" is moot if no fees have been charged. Barbara Schwarz, 27 DOE ¶ 80,245 (1999). We will therefore dismiss this portion of Schwarz's appeal as moot.

C. Request for a search declaration

Woven throughout Schwarz's appeal are requests for a detailed description of how the search was conducted. She asserts that

the determination ... is very unspecific.... I was not explained the records system.... I received absolutely no search document.... I always had requested a search certification or declaration by Dept. of Energy employees as to the result of their searches. With letter of December [4, 2000, the FOI/PA] Office mailed me first time a certification as to a search.... However, the certificate is not under oath, as requested and the no records determination is not true, and no evidence as to the search was attached... I insist on the search declaration.

As we have explained to Schwarz before, neither the FOIA nor the relevant DOE regulations requires the agency to supply a "search certificate" or a detailed description of the search that was conducted. Barbara Schwarz, supra. Furthermore, we believe that requiring a "search declaration" at the administrative stage of review is unnecessary and unproductive. We will therefore deny this portion of the appeal.

III. Conclusion We find that, on appeal, Schwarz has requested records that were not within the scope of her original request. Consequently, we find no reason to remand her original request for a further search. In addition, we find no basis to grant Schwarz's request for a "search declaration," and we find her request for a fee waiver to be moot. We will therefore deny this Appeal in part and dismiss it in part.

It Is Therefore Ordered That:

(1) The Appeal filed by Barbara Schwarz, Case No. VFA-0641, is hereby dismissed with respect to the fee waiver issues it raises, and denied in all other respects.

(2) This is a final order of the Department of Energy from which any aggrieved party may seek judicial review. 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: January 24, 2001

-- "When I go, I want go to peacefully in my sleep, like grandpa did, not screaming in terror, like the passengers in the car he was driving."

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