FIA-19-0010 - In the Matter of American Oversight

On April 18, 2019, the Office of Hearings and Appeals (OHA) granted a Freedom of Information Act (FOIA) appeal filed by American Oversight (Appellant) concerning a FOIA request it made to the Department of Energy's Office of Public Information (OPI). Appellant's FOIA request sought communications between DOE officials and twenty private entities "containing any of the following search terms (whether in the body or subject): (a) Section 205; (b) § 205; (c) Section 206; (d) § 206; (e) 'premature retirements of power plants;' (f) 'shall establish a tariff that provides a just and reasonable rate;' (g) 'essential energy and ancillary reliability services.'" OPI notified Appellant that it had located "a large amount of material” and requested that Appellant agree to waive any e-mail attachments that were publicly available. Appellant agreed to waive any publicly-available e-mail attachments. OPI subsequently issued a determination letter in which it indicated that its search had not identified any records responsive to Appellant's FOIA request. On appeal, OPI explained that that the keywords Appellant specified appeared only in attachments to e-mails, not in the bodies or subject lines of the e-mails themselves, and that all of the attachments in which the keywords appeared were publicly available documents. Therefore OPI concluded that it had not located any records responsive to Appellant's FOIA request. OPI indicated that it had limited its search to e-mail records because it did not believe that other searches would yield responsive records. OHA determined that OPI's search was inadequate because it inappropriately deemed e-mail attachments to be separate records from the e-mails themselves and unreasonably limited its search for responsive communications to e-mails. Therefore, OHA granted Appellant's appeal and remanded the matter to OPI to conduct an appropriate search. OHA Case No. FIA-19-0010.