Case No. VFA-0091, 25 DOE ¶ 80,147

November 8, 1995

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: William H. Payne

Date of Filing: October 17, 1995

Case Number: VFA-0091

On October 17, 1995, William H. Payne filed an Appeal from a determination issued to him on September 29, 1995, by the Department of Energy's Albuquerque Field Office (DOE/AL), in response to a request for information 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 FOIA requires that documents held by federal agencies generally be released to the public upon request. The FOIA, however, lists nine exemptions that set forth the type of information that may be withheld at the discretion of an agency. 5 U.S.C. § 552(b); 10 C.F.R. § 1004.10(b). The DOE regulations further provide that a document exempt from mandatory disclosure under the FOIA shall nonetheless be released to the public if the DOE determines that disclosure is permitted by federal law and is in the public interest. 10 C.F.R. § 1004.1.

I. Background

On September 12, 1995, Payne filed a request under the FOIA in which he sought the "[n]ames and dates of employment of all retired military personnel who were hired by Los Alamos National Laboratory [LANL] between the date of October 1, 1979 and September 12, 1995." Letter from William H. Payne to Hazel R. O'Leary, Secretary of Energy (October 6, 1995). LANL is a DOE site currently operated under a contract between the DOE and the University of California. DOE/AL issued a determination on September 29, 1995, in which it stated that the information sought by Payne is contained in "personnel files in the possession and control of [LANL.]" Letter from Elva Ann Barfield, Freedom of Information Officer, DOE/AL, to Bill Payne (September 29, 1995). According to DOE/AL, these files are "not 'agency records' subject to the provisions of the FOIA" and "are not subject to release under DOE policy as well." Id.

In his Appeal, Payne does not dispute that the information he is seeking is contained in LANL personnel files. He does state, without elaborating, that "others disagree with" DOE/AL's determination that these files are not subject to release under the FOIA. Letter from William H. Payne to Hazel R. O'Leary, Secretary of Energy (October 6, 1995). He further contends that the information he seeks is of national and international concern. Id.

II. Analysis

Our threshold inquiry in this case is whether personnel files generated by and in the possession of a DOE contractor are subject to the FOIA. First, we must determine whether such records are "agency records," and thus subject to the FOIA, under the criteria set out by the federal courts. See 5 U.S.C. § 552(f). Second, records that do not meet these criteria can nonetheless be subject to release under the DOE regulations. 10 C.F.R. § 1004.3(e); see 59 Fed. Reg. 63,884 (December 12, 1994). We conclude that the records in question are not "agency records" and are not subject to the FOIA under DOE regulations.

The statutory language of the FOIA does not define the essential attributes of "agency records," but merely lists examples of the types of information required to be made available to the public. See 5 U.S.C. § 552(a). In interpreting this phrase, we have applied a two-stage analysis fashioned by the courts for determining whether documents created by non-federal organizations, such as the University of California, are subject to the FOIA. See, e.g., B.M.F. Enterprises, 21 DOE 80,127 (1991); William Albert Hewgley, 19 DOE ¶ 80,120 (1989); Judith M. Gibbs, 16 DOE ¶ 80,133 (1987) (Gibbs). That analysis involves a determination (i) whether the organization is an "agency" for purposes of the FOIA, and if not, (ii) whether the requested material is nonetheless an "agency record." See Gibbs, 16 DOE at 80,595.

The FOIA defines the term "agency" to include any "executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch . . . , or any independent regulatory agency." 5 U.S.C. § 552(f). The courts have identified certain factors to consider in determining whether an entity should be regarded as an agency for purposes of federal law. In United States v. Orleans, 425 U.S. 807 (1976), a case which involved a statute other than the FOIA, the Supreme Court defined the conditions under which a private organization must be considered a federal agency as follows: "[T]he question here is not whether the . . . agency receives federal money and must comply with federal standards and regulations, but whether its day-to-day operations are supervised by the Federal Government." Id. at 815. In other words, an organization will be considered a federal agency only where its structure and daily operations are subject to substantial federal control. See Ciba-Geigy Corp. v. Matthews, 428 F. Supp. 523, 528 (S.D.N.Y. 1977). Subsequently, the Supreme Court ruled that the Orleans standard provides the appropriate basis for ascertaining whether an organization is an "agency" in the context of a FOIA request for "agency records." Forsham v. Harris, 445 U.S. 169, 180 (1980) (Forsham). See also Washington Research Project, Inc. v. HEW, 504 F.2d 238, 248 (D.C. Cir. 1974), cert. denied, 421 U.S. 963 (1975) (degree of independent governmental decision-making authority considered); Rocap v. Indiek, 539 F.2d 174 (D.C. Cir. 1976).

Under its contractual relationship with the DOE, the University of California is the prime contractor responsible for maintaining and operating LANL. While the DOE obtained the University's services and exercises general control over the contract work, it does not supervise the University's day-to-day operations. We therefore conclude that University of California is not an "agency" subject to the FOIA.

Although the University of California is not an agency for the purposes of the FOIA, its records relevant to the Payne request could become "agency records" if they were obtained by the DOE and were within the DOE's control at the time the FOIA request was made. Department of Justice v. Tax Analysts, 492 U.S. 136, 144-46 (1989); see Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136 (1980); Forsham, 445 U.S. at 182. In this case, the documents in question had not been obtained by the DOE and were not in the agency's control at the time of the appellant's request. Thus, the records do not qualify as "agency records" under the test set forth by the federal courts. See Tax Analysts, 492 U.S. at 145-46; see also Forsham, 445 U.S. at 185-86, Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 150-51 (1980).

Even if contractor-acquired or contractor-generated records fail to qualify as "agency records," they may still be subject to release if the contract between the DOE and that contractor provides that the document in question is the property of the agency. The DOE FOIA regulations provide that "[w]hen a contract with DOE provides that any records acquired or generated by the contractor in its performance of the contract shall be the property of the Government, DOE will make available to the public such records that are in the possession of the Government or the contractor, unless the records are exempt from public disclosure under 5 U.S.C. § 552(b)." 10 C.F.R. 1004.3(e)(1).

We therefore next look to the contract between DOE and the University of California to determine the status of these records. That contract states:

Except for those records owned by the University pursuant to paragraph (b) below, all records acquired or generated by the University's employees at the Laboratory or at the University's Laboratory Administrative Management Oversight Unit in the performance of this Contract shall be property of the Government, and shall be delivered to the Government or otherwise disposed of by the University in accordance with the terms of this contract or as directed by the Contracting Officer during the term of this contract or upon its termination or expiration.

Contract W-7405-ENG-36, Modification No. M359, Article VI, Cl. 10(a) (emphasis added). Paragraph (b) of this clause states that the category of "University-owned Records" includes "Personnel and medical . . . records and files maintained on individual employees, applicants and former employees[.]" Id. at Cl. 10(b). Thus, because personnel records are not among the records which are "property of the Government" under the DOE's contract with the University of California,

these records are not subject to release under the DOE regulations.

For the reasons set forth above, we find that the records sought by the appellant are neither "agency records" within the meaning of the FOIA, nor subject to the FOIA under DOE regulations. Accordingly, we shall deny the present FOIA Appeal.

It Is Therefore Ordered That:

(1) The Appeal filed by William H. Payne on October 17, 1995, Case Number VFA-0091, is hereby denied.

(2) This is a final order of the Department of Energy of which any aggrieved party may seek judicial review pursuant to the provisions of 5 U.S.C. § 552(a)(4)(B). 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: November 8, 1995