FIA-19-0003 - In the Matter of Emma Best

On February 21, 2019, the Office of Hearings and Appeals (OHA) denied a Freedom of Information Act (FOIA) appeal filed by Ms. Emma Best (Appellant) from a final determination issued by the Department of Energy's National Nuclear Security Administration (NNSA). Appellant's FOIA request sought "[r]ecords relating to the creation, design, approval and implementation of the Nevada National Security Site's mascot, the Green Reaper." In its response, NNSA provided documents concerning the procurement of a Green Reaper costume, communications related to an award for the use of the character in sustainable communications, and several reports available to the public on DOE's Nevada National Security Site's website. On appeal, Appellant asserted that NNSA had not conducted an adequate search because NNSA's response did not include any records related to the creation of the character itself, and also because she had located a    record on the Nevada National Security Site's website that mentioned the implementation of the Green Reaper which was not included in NNSA's response to her FOIA request. OHA determined that NNSA's search for records related to the creation of the character was adequate because NNSA established that the individual who created the character was a former employee of a contractor, the contractor no longer maintained the individual's electronic records, and the contractor had conducted a search of shared drives on which the individual might have stored responsive records as well as the e-mail accounts of personnel currently involved in implementing the character. With respect to Appellant's discovery of a document published on a DOE website that mentioned the character, OHA concluded that the mere existence of the record did not render NNSA's search inadequate and that NNSA was not obliged to provide records in response to a FOIA request which were made readily available to the public by DOE through an alternative form of access. Accordingly, OHA denied Appellant's appeal. OHA Case No. FIA-19-0003