FIA-18-0035 - In the Matter of Robert J. Thompson

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On November 26, 2018, the Department of Energy's (DOE) Office of Hearings and Appeals (OHA) denied a Freedom of Information Act (FOIA) Appeal filed by Robert J. Thompson ("Appellant") from a determination issued by the Office of Public Information (OPI). In his FOIA request, the Appellant sought eight Record of Invention forms associated with eight patent applications filed by Willard F. Libby in the 1940s. The DOE located six of the records, releasing two records in their entirety and four of the records with redactions pursuant to Exemption 3 of the FOIA. The Appellant filed an appeal challenging the adequacy of the DOE's search for responsive records as well as the Exemption 3 withholdings. OHA bifurcated the Appeal and considered only the adequacy of the search in the instant case. Reviewing the search, OHA found that the DOE organization that located six of the records, the Office of the Assistant General Counsel for Technology Transfer and Intellectual Property ("GC-62"), had located the eight relevant patent application files and searched those files. Although GC-62 indicated that the two missing Record of Invention forms would not be in in any other DOE location, OHA contacted the Office of Environment, Health, Safety and Security, the DOE's Office of History and Heritage Resources, the Office of Scientific and Technical Information, the Oak Ridge Office, and the DOE's Chicago Office. Each of these locations indicated that it would not have responsive records or conducted additional searches and did not find either of the two forms. Based on the search conducted by GC-62, and the additional searches conducted on appeal, OHA could identify no other location likely to have the two records. OHA also concluded, contrary to arguments raised by the Appellant, that the DOE did not have a responsibility to obtain any responsive records from the U.S. Patent and Trademark Office and release those records to the Appellant. Accordingly, OHA found that the DOE conducted a search that was reasonably calculated to uncover the relevant records and denied the Appeal. OHA Case No. FIA-18-0035 .