Case No. TFA-0001 December 19, 2002

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Appellant:Barbara Schwarz

Date of Filing: November 25, 2002

Case Number: TFA-0001

Barbara Schwarz filed Appeals from three letters issued by the various elements of the Department of Energy (DOE). Two of these letters responded to a request for information that Schwarz 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. The third letter informed Ms. Schwarz that the DOE would no longer process FOIA requests that she filed until she paid processing fees that she owes to various federal government entities. As explained below, we will deny the first two Appeals and dismiss the third.

I. Response from the Golden Field Office Background Ms. Schwarz sent an e-mail to Richard Truly, Director of the DOE's National Renewable Energy Laboratory, in which she requested the following information:

[Whether] you or members of your staff have knowledge of Mark C. Rathbun (de Rothschild), or his family, or his attorneys, or Scientologists, or an Independent or Special Counsel, or other members of Congress asking you to investigate a secret German Nazi infiltration of the U.S. government, all Departments, numerous federal agencies and even courts, or State governments, or asked you to sponsor a new Committee, or Subcommittee, or federal agency, or office, to investigate this illegal infiltration. Inform me if they contacted you to find me as witness to their investigation and asked you to mail your FOIA/PA or other records on me to them.

Please mail me also under FOIA/PA records, that you Department, any office has on me, Barbara Schwarz, or misspelled version Schwartz from 1997 till present time, that you have not yet mailed to me. Search in all your office and agencies. Clarify

the status of my "urgent request for information assistance and investigation,"(including FOIA/PA request) dated May 20, 2002, and mailed with USPS on May 20, 2002 to Secretary Spencer Abraham. What is the file number of this request? When do you process this request?

The Manager of the DOE's Golden Field Office responded to this request in a letter dated September 11, 2002. With respect to the first portion of her request, the Manager stated that Ms. Schwarz had requested knowledge rather than documents, and that the FOIA requires the production only of documents. Therefore, no documents could be provided that responded to her request. As for the second part of her request, the Manager stated that Golden had performed a thorough search for records on Ms. Schwarz, and had located none. Finally, he advised Ms. Schwarz to contact the DOE headquarters Freedom of Information and Privacy Group regarding the request she filed with Secretary Abraham.

In her appeal, Ms. Schwarz raises the following issues. First, she challenges Golden's determination that it had no records regarding her. Second, she believes that Golden must have some documents that demonstrate that Mr. Rathbun or members of his family, or their attorneys, or other individuals "requested [her] records from NREL or DOE Golden Field Office," because "the above named attorneys likely requested them in official letters and subpoenas." Third, because Golden "sent absolutely no evidence of any search," Ms. Schwarz requests records of the search it conducted in response to her request. Finally, Ms. Schwarz wants "to know why DOE, NREL does not want to investigate the matters of National Security, which I raised in [my request] and which concern DOE directly. I still insist on the investigation."

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., Butler, Vines and Babb, P.L.L.C., 25 DOE ¶ 80,152 (1995). The FOIA, however, 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 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 Weisberg v. Department of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984). In cases such as these, "[t]he issue is not whether any further documents might conceivably exist but rather whether the government's search for responsive documents was adequate." Perry v. Block, 684 F.2d 121, 128 (D.C. Cir. 1982).

In order to determine whether the search conducted for records concerning Ms. Schwarz was adequate, we contacted the Golden office. The Freedom of Information Officer for Golden informed us that he had searched its human resources, procurement and legal counsel offices, and that no documents were found that were responsive to this portion of the request. He also informed us that these three offices were the locations at Golden where information on Ms. Schwarz might reasonably be found, if any existed. We find that the search for information responsive to this portion of Ms. Schwarz's request was adequate and we will deny this portion of the appeal.

Concerning Ms. Schwarz's request for "knowledge" that certain individuals had asked Golden to investigate Nazi infiltration or to sponsor such an investigation, Golden informed us that it had not conducted a search at all, because "knowledge" would not be contained in documents, which are the proper subject of a request under the FOIA. Although we agree that Golden was technically correct in not undertaking a search for "knowledge," we reinterpreted Ms. Schwarz's request to include any documents that demonstrated that the named individuals had asked Golden to investigate Nazi infiltration or to sponsor such an investigation. We then requested that Golden conduct a search for documents responsive to that restatement of Ms. Schwarz's request. Golden performed a search and notified us that no responsive documents were found. It explained the manner of its search, which included posing this request to three high-level, long-term employees, each of whom had a broad knowledge and memory of Golden's operations, and who would reasonably know about any responsive documents if any existed at Golden. We find that the search for information responsive to this portion of Ms. Schwarz's request was adequate and we will deny this portion of the appeal.

Ms. Schwarz now requests "the search records that were generated during this search by NREL and Golden Field Office, e.g. work sheets, e-mail notes, computer printouts, logs, etc., any form of records that belong to me and that request. I also want to know in what offices was searched, who searched in what offices exactly, what records systems, to what names of mine, to what time period, and I want a search declaration/certificate by the searchers as to how the search was conducted." This request is for information that is beyond the scope of the original request and we will not address it in this appeal. If Ms. Schwarz wishes to request "the search records that were generated during this search by NREL and Golden Field Office," she must do so by filing a request for information with Golden directly. We note, however, that

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, [Case No. VFA-0536, 27 DOE ¶ 80,245 (1999)]. Furthermore, we believe that requiring a "search declaration" at the administrative stage of review is unnecessary and unproductive.

Barbara Schwarz, Case No. VFA-0641, 28 DOE ¶ 80,140 (2001). Moreover, it is well settled that documents need not be created in response to a request for information under the FOIA. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 143 n.10 (1975). We will therefore deny this portion of the appeal.

Finally, we must dismiss Ms. Schwarz's concern that the Golden Field Office has ignored her demand for an investigation of matters of national security that she specified in her communications with that office. Her request for such action, and Golden's lack of response to that request, are beyond the scope of the FOIA and, consequently, our powers to review under the FOIA and the DOE's regulations that implement that law.

II. Response from the NNSA The DOE's National Nuclear Security Administration (NNSA) received the same request for information as Mr. Truly of NREL. The NNSA's Freedom of Information Act Officer responded to this request in a letter dated September 9, 2002, stating that the NNSA "is not allowed to maintain any records on United States citizens that have no affiliation with the National Nuclear Security Administration," and that the NNSA does not conduct investigations. On September 15, 2002, Ms. Schwarz attempted to appeal that determination directly to the NNSA, and we will consider her appeal at this time. In her appeal, Ms. Schwarz raised the following issues. She contends that the NNSA conducted no search for records about her and failed to conduct an adequate search for subpoenas that Mr. Rathbun, his family, their attorneys, or other counsel had allegedly filed with the NNSA to obtain records about her. In addition, as she did in her appeal of the NREL determination discussed above, Ms. Schwarz now requests "the search records that you or your office generated to retrieve those records, and a search declaration/certificate as to how the search was conducted."

In order to determine whether the search conducted for records responsive to Ms. Schwarz's request was adequate, we contacted the NNSA. We learned that the Freedom of Information Act Officer did not conduct a search for responsive documents in this case, because he believes the NNSA does not maintain information of the type Ms. Schwarz requested. At our request, however, the NNSA performed a formal search for such records and located none. The FOIA Officer reported that his search of NNSA's FOIA case files located only documents related to the request currently under appeal: Ms. Schwarz's e-mail request for information, NNSA's September 9, 2002 response, and Ms. Schwarz's September 15, 2002 reply. The FOIA Officer also reported that he requested NNSA's Office of General Counsel search for subpoenas regarding information about Ms. Schwarz, and was informed that none exist. In addition, the NNSA's Office of General Counsel reported to us directly that it has no litigation files concerning Ms. Schwarz. Despite the fact that this search uncovered no documents responsive to Ms. Schwarz's request, we find that the search that the NNSA conducted was adequate and will deny this portion of the appeal.

As stated above, Ms. Schwarz now requests any records the NNSA generated in the course of retrieving records responsive to her request, and a "search declaration/certificate" regarding that search. For the same reasons set forth in the above section concerning Golden's response, we will deny this portion of her appeal.

III. Response from FOI/PA Ms. Schwarz also appeals a letter she received from the Director of the Headquarters FOIA/Privacy Act Group. In that letter, dated October 2, 2002, the Director stated that the DOE would not begin to process several requests for information that Ms. Schwarz had filed with the DOE, because other agencies have informed the DOE that she has not paid fees assessed for processing FOIA requests at those agencies. In a letter dated October 20, 2002, Ms. Schwarz objects to the DOE's refusal to process her requests for information, declaring it to "completely unlawful and even unconstitutional."

We will not consider the arguments raised by the DOE or Ms. Schwarz regarding this impasse. The DOE's refusal to process Ms. Schwarz's requests for information does not fall within the type of determinations that we have jurisdiction to review on appeal. See 10 C.F.R. § 1004.8(a) (appeal authority when the DOE withholds a document in part or in full, or states there are no responsive documents, or denies a request for waiver of fees). Accordingly, we will dismiss the portion of the appeal that concerns the DOE's refusal to process requests for information. Under these circumstances, Ms. Schwarz has the right to file a complaint with the appropriate federal district court. See 5 U.S.C. § 552(a)(4)(B), (6)(C).

It Is Therefore Ordered That:

(1) The Appeal filed by Barbara Schwarz, Case No. TFA-0001, is hereby denied in part and dismissed in part.

(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: December 19, 2002

-- "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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