VFA-0701 November 5, 2001

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Barbara Schwarz

Date of Filing: October 5, 2001

Case Number: VFA-0701

On October 5, 2001, Ms Schwarz filed an Appeal from a final determination that the Office of Inspector General (OIG) of the Department of Energy (DOE) issued on September 26, 2001. That determination concerned a request for information Ms Schwarz submitted pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004. If the present Appeal were granted, OIG would be required to conduct a further search for responsive documents.

Background On May 10, 2001, Ms Schwarz submitted a FOIA request to the DOE for a large number of documents, including "[t]he correspondence logs of [OIG] of June 1999 till the present time as well as the subpoena logs, FOIA/PA requests and administrative appeal logs, as well as their offices litigation logs." Determination Letter dated September 26, 2001 from Judith D. Gibson, Assistant Inspector General for Resource Management, OIG, to Barbara Schwarz. In addition, she requested "[c]opies of all requests for waiver of fees that DOE granted to other requesters . . . for the last five years" and "any records pertaining to [her] request for the [OIG] investigation dated July 20, 2000, and the [OIG] records, and the OHA records of the three conversations with OIG to this request." Id. at 2. Finally, Ms Schwarz requested "search records that [OIG] generated to retrieve" the information responsive to this request, and search declarations detailing the search for the requested records. Id. at 2. Responding solely for its own office, OIG released its FOIA log to Ms Schwarz and stated that it did not have any other responsive information. Id.

In her Appeal, Ms Schwarz claimed that OIG released only pages one and three of the FOIA log and withheld all other logs, including correspondence and investigation logs. Appeal Letter dated October 2, 2001, from Barbara Schwarz to the Office of Hearings and Appeals (OHA). Further, OIG did not release any copies of requests for fee waivers. Id. Additionally, she argues that OIG withheld records pertaining to her request for an investigation dated July 20, 2000. Id. (1) Finally, Ms Schwarz contends that OIG did not include the search records or declarations she had requested relevant to her request. Id. She alleges that these failures, along with OIG's late response to her request, are evidence of bad faith, failure to search or an inadequate search and a cover up of existing records. Id. Analysis In responding to a request for information filed under the FOIA, it is well established that an agency must "conduct a search reasonably calculated to uncover all relevant documents." Truitt v. Department of State, 897 F.2d 540, 542 (D.C. Cir. 1990). "The standard of reasonableness which we apply to agency search procedures 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); accord Truitt, 897 F.2d at 542. We have not hesitated to remand a case where it is evident that the search conducted was in fact inadequate. See, e.g., David G. Swanson, 27 DOE ¶ 80,178 (1999); Butler, Vines and Babb, P.L.L.C., 25 DOE ¶ 80,152 (1995).

We contacted OIG to determine what type of search was conducted. OIG indicated that it does not keep logs or lists of correspondence, subpoenas, administrative appeals, or litigation. Memorandum of Telephone Conversation dated October 22, 2001, between Janet R. H. Fishman, Attorney-Examiner, OHA, and Caroline Nielsen, OIG. It did release to Ms Schwarz its list of FOIA and Privacy Act requests that had been filed in during the period June 1999 through early September 2001, as Ms Schwarz had requested. However, she only received page one and three of the list. OIG has indicated that it will resend the entire list. Id. In response to Ms Schwarz' claims that OIG withheld its investigation logs, we note that she did not request investigation logs in her initial request. A requester cannot broaden the request on Appeal. Barbara Schwarz, 28 DOE ¶ 80,140 (2001), citing 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). Since investigation logs were not included in the original request, we find this part of Ms Schwarz' Appeal to be groundless. If Ms Schwarz wants the investigation logs from OIG, she will need to submit a request under the FOIA asking for that information.

Ms Schwarz claims that OIG did not release any previously granted fee waiver requests to her. The OIG informed us that it does not consider any fee waiver requests and, therefore, does not have copies of any fee waivers granted to other requesters. Any such requests would be handled by the Freedom of Information and Privacy Act office of the DOE. Id. Ms Schwarz next states that OIG withheld records pertaining to her request for investigation dated July 20, 2000. She bases this claim on a letter OHA sent to her stating that OIG considered her request carefully. We have determined that OHA and OIG did not correspond regarding her request but rather communicated by telephone without producing any documentation of the communication. Further, notwithstanding the fact that OIG asserted that it considered Ms Schwarz's request carefully, it provided no documentation of its consideration, and there is nothing to indicate that it generated any records pertaining to her July 20, 2000 request. OIG also searched its files of requests for investigation that have been denied and did not discover anything responsive to Ms Schwarz' request. In our contact with OIG, we determined that OIG has no records responsive to this portion of Ms Schwarz' request. October 22, 2001 Telephone Memorandum.

Finally, Ms Schwarz alleges that OIG withheld its search declaration and records pertaining to this request. In requesting the search records and declaration, Ms Schwarz is asking for information that did not exist at the time of her request, if it exists at all. The FOIA applies to information in existence at the time of the request. It cannot be used to create information or request future information. 5 U.S.C. § 552; 10 C.F.R. § 1004.4(d)(1), (2). We note that no search records or declaration were created in response to this request, nor are such documents routinely created in response to any request. Further, as we have explained to Ms 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. The FOIA simply requires the agency to notify the requester of the determination, the reasons for the determination, and of the requester's right to appeal. Barbara Schwarz, 28 DOE ¶ 80,175 (2001); see Barbara Schwarz, 27 DOE ¶ 80,245 at 80,872 (1999). Moreover, 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.

Conclusion OIG followed procedures reasonably calculated to uncover the information Ms Schwarz requested in her FOIA request. The fact that OIG did not uncover the information requested does not indicate that the search was inadequate. For the foregoing reasons, we will deny Ms Schwarz' appeal.

It Is Therefore Ordered That:

(1) The Appeal filed by Ms Schwarz on October 5, 2001, Case No. VFA-0701, 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 provision of 5 U.S.C. § 552(a)(4)(B). Judicial review may be sought either in the district where 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: November 5, 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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