Case No. VFA-0182, 26 DOE ¶ 80,143

December 6, 1996

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Burns Concrete, Inc.

Date of Filing: June 17, 1996

Case Number: VFA-0182

On June 17, 1996, Burns Concrete, Inc., filed an Appeal from a determination issued on April 26, 1996, by the DOE's Pittsburgh Naval Reactors Office (PNR). The determination responded to a request for information 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 FOIA generally requires that documents held by the federal government be released to the public upon request. However, Congress has provided nine exemptions to the FOIA which set forth the types of information agencies are not required to release. Under the DOE's regulations, a document which is exempted from disclosure under the FOIA shall nonetheless be released to the public whenever the DOE determines that disclosure is not contrary to federal law and in the public interest. 10 C.F.R. § 1004.1.

I. Background

On December 20, 1995, Burns filed a request under the FOIA for documents submitted by Walters Ready Mix, Inc. (Walters) in connection with a purchase order for concrete supplied for the Expanded Core Facility Dry Cell Project at DOE's Bettis Atomic Power Laboratory, Naval Reactors Facility (NRF). This project was terminated in 1993 and Walters submitted the documents sought by Burns as part of a settlement proposal to recover its costs associated with the project. The project was rebid in early 1996, and the DOE again chose Walters to fill the purchase order.

Because Burns sought information submitted by a third party, PNR sought and received comments on Burns' request from Walters. Letter from Sally B. Pfund and Robert J. Martinez, Williams & Jensen (representing Walters), to James S. Carey, Jr. (April 2, 1996); see Exec. Order No. 12,600, 3 C.F.R. 235 (1988) (requiring notice to submitters). PNR issued a final determination on April 26, 1996. Letter from H.A. Cardinali, Manager, PNR, to Linda Szimhardt, Office Manager, Burns (April 26, 1996). In its determinations PNR released documents to Burns, but withheld certain responsive documents and portions of other responsive documents under FOIA Exemption 4, 5 U.S.C. § 552(b)(4). Id. The present Appeal was filed on June 17, 1996. Letter from Linda Szimhardt, Burns, to Director, OHA (June 7, 1996). In its Appeal, Burns objects to the withholding of information in many of the documents responsive to its request. Id. We received comments from PNR in response to the Appeal on July 16, 1996. Memorandum from James S. Carey, Jr., Chief Counsel, PNR, to Steve Goering, OHA (July 9, 1996). Finally, Burns requested an opportunity to submit additional information in support of its appeal, the last of which was received by the OHA on November 7, 1996. Letter from Linda Szimhardt, Burns, to OHA (November 1, 1996); Letter from Linda Szimhardt to OHA (October 29, 1996); Letter from Linda Szimhardt to OHA (September 18, 1996).

II. Analysis

A. Applicability of Exemption 4

Exemption 4 exempts from mandatory public disclosure "trade secrets and commercial or financial information obtained from a person and privileged or confidential." 5 U.S.C. § 552(b)(4); 10 C.F.R. § 1004.10(b)(4). In order to qualify under Exemption 4, a document must contain either (a) trade secrets or (b) information which is (1) "commercial" or "financial," (2) "obtained from a person," and (3) "privileged or confidential." National Parks & Conservation Ass'n v. Morton, 498 F.2d 765 (D.C. Cir. 1974) (National Parks). The United States Court of Appeals for the District of Columbia Circuit has found that commercial or financial information submitted to the federal government under non-voluntary conditions is "confidential" for purposes of Exemption 4 if disclosure of the information is likely either: (i) to impair the government's ability to obtain necessary information in the future or (ii) to cause substantial harm to the competitive position of the person from whom the information was obtained. Id. at 770; Critical Mass Energy Project v. NRC, 975 F.2d 871, 879 (D.C. Cir. 1992), cert. denied, 507 U.S. 984 (1993) (Critical Mass). By contrast, information that is provided to an agency voluntarily is considered "confidential" if "it is of a kind that the provider would not customarily make available to the public." Critical Mass, 975 F.2d at 879.

Clearly, documents submitted by a company to the DOE in connection with a proposal for reimbursement of costs it incurred are "commercial" within the meaning of Exemption 4 because of the vendor's commercial interest in receiving compensation. Public Citizen Health Research Group v. FDA, 704 F.2d 1280, 1290 (D.C. Cir. 1983) (citing Washington Post Co. v. HHS, 690 F.2d 252, 266 (D.C. Cir. 1982)) (records are commercial so long as the submitter has a "commercial interest" in them). In addition, the information was obtained from a "person," as required by Exemption 4, since corporations are deemed "persons" for purposes of that Exemption. See Allnet Communications Servs. v. FCC, 800 F. Supp. 984, 988 (D.D.C. 1992) ("person" under Exemption 4 "refers to a wide range of entities including corporations"), aff'd, No. 92-5351 (D.C. Cir. May 27, 1994); see also Ronson Management Corp., 19 DOE ¶ 80,117 (1989).

Regarding whether the documents at issue are "confidential," we consistently have held that information submitted in connection with a Request for Proposal is not submitted voluntarily and is therefore to be considered confidential only if it meets the test set out in National Parks. E.g., Glen M. Jameson, 25 DOE ¶ 80,191 (1996). The federal courts have reasoned that even though such submissions are voluntary in the sense that no company is forced to do business with the government, information required by the terms of a Request for Proposal must be submitted if "contractors want to win lucrative government contracts . . . ." McDonnell Douglas Corp v. NASA, No. 91-3134, slip op. at 4 (D.D.C. June 30, 1995).

Similarly in the present case, the documents submitted by Walters were required to be submitted in order for the company to do business in connection with a government project, and specifically in order to receive reimbursement once that project was terminated. Indeed, Walters did not argue, nor did PNR conclude, that the documents at issue were submitted voluntarily. Accordingly, we will find the information at issue to be "confidential" only to the extent that its disclosure is likely either to impair the government's ability to obtain necessary information in the future or to cause substantial harm to the competitive position of the submitter, Walters.

B. Information Withheld from the Appellant

1. Concrete Mix Design Test Data

Some of the information withheld from Burns concerned a mix design, High Density Concrete Mix Design 3500 psi (Trial Batch NX145-1), submitted by Walters for concrete that was to be used in the Dry Cell Project. Burns was provided with the mix design for this specialty concrete, but data from tests performed on the mix design was withheld. This information is located at Tab C(1) (six pages withheld in their entirety) and Tab K (p. 122).

Where there is competition in a given industry, the courts have reasoned that release of "proprietary technical information ?would seriously undermine a company's competitive advantage by allowing competitors to have access to ideas and design details that they would not have had or would have had to spend considerable funds to develop on their own.'" SMS Data Prods. Group, Inc. v. Department of the Air Force, No. 88-0481-LFO, slip op. at 3 (D.D.C. March 31, 1989) (citation omitted). The submitter argues that there is competition in its local concrete market. We agree with Walters that there is such competition, as demonstrated by the fact that the Burns competed with Walters on the Dry Cell Project. See Gulf & W. Indus., Inc. v. United States, 615 F. 2d 527, 530 (D.C. Cir. 1979) (Gulf & Western). However, Walters must also demonstrate that there is a "likelihood of substantial competitive harm" in order for the information to be exempt from release. Id. at 530. For the most part, we find that Walters has not made this showing with regard to the testing data, but as we explain below, we do find that some of this data may be withholdable under Exemption 4.

a. Competitive Harm Based on the Cost of Running Tests if there is a Rebid of the Dry Cell Project

First, Walters argues that the test data in the present case should be withheld because

[a] competitor intending to use the mix design furnished the Government by Walters would still be expected to run tests and produce supporting data, comparable to that for which Walters seeks protection. Release of Walters' data to Burns would allow Burns to do so without incurring the cost which Walters has borne, without reimbursement by the Government.

Letter from Sally B. Pfund and Robert J. Martinez, Williams & Jensen, to James S. Carey, Jr. (April 2, 1996) at 3.

Walters admits that "the information in question relates to a special mix which was developed by Walters for a particular project . . . ." Letter from Sally B. Pfund and Robert J. Martinez, Williams & Jensen, to James S. Carey, Jr. (April 2, 1996) at 3. Nonetheless, Walters contends that "Burns intends to use the information to try to affect the project for which the special mix was developed to force a recompetition of the requirement." Id. at 3-4.(2) At present, this prospect seems extremely unlikely. Though Walters correctly points out that this project has been terminated and rebid once before, the project has now proceeded to the point where it would likely be economically impractical to terminate it. Memorandum of telephone conversation between James Carey, PNR, and Steve Goering, OHA (October 28, 1996).(3) Therefore, we cannot find that Walters may suffer substantial competitive harm based on unfounded speculation that there will be another rebid of this project.

b. Competitive Harm in Future Procurements

Walters further argues that "[e]ven if Burns is unable to displace Walters from the current requirement, Walters would be injured by the release, since it would give Burns an improved position in future competitions. Although DOE may not have current plans for a project which would require use of the special mix design for this project, it is possible that there will be a future need by DOE or another customer." Letter from Sally B. Pfund and Robert J. Martinez, Williams & Jensen, to James S. Carey, Jr. (April 2, 1996) at 4. See Affidavit of Cary W. Sargent, Walters at 4 ("It is likely that other projects will arise in the future which would be appropriate for use of the special mix design designed for this project, or for a very similar mix.").

We agree with Walters that release of the testing data could reveal information regarding the properties and characteristics of the special mix beyond that which is revealed by the mix design alone. Data on the performance of a product design under testing conditions can reveal the strengths and weaknesses of that design. Such information could help Walter's competitors to improve upon the mix design and market a better product or to develop a comparable product at a lower cost. Even if Walters was reimbursed for the testing of the specialty mix design on the current project, this would not compensate Walters for the competitive harm it could suffer in the future as a result of the release of this information.(4)

However, we do not believe that the likelihood of this type of competitive harm exempts all of the testing data withheld from Burns from release under the FOIA,(5) especially considering the fact that Burns has already obtained the actual mix design in question. Therefore, we are remanding the testing data portion of the determination to PNR for the segregation and release of non-exempt material. We believe that PNR is in the best position to make a determination as to whether the release of the specific information at issue would cause substantial harm of this type to the competitive position of Walters. Finally, we have found that there was information withheld from Burns at Tab K, p. 122, that is contained in the mix design released to Burns. On remand, this information should be released.

2. Company Names

From four of the pages released to Burns, PNR redacted "Walters' letterhead . . . ." Letter from H.A. Cardinali, Manager, PNR, to Linda Szimhardt, Office Manager, Burns (April 26, 1996) at 3. PNR stated that release of the Walters name on the test results performed on two aggregates "will enable Burns to use the mix designs on Walters' letterhead as comparison documents to present to potential customers in attempting to market particular characteristics of its own designs. This will give Burns an advantage over Walters greater than it would have against other competitors and cause competitive harm to Walters." Id. Burns was already informed in PNR's determination that it is Walters' name that was redacted from the test results in question (located at Tab B, pp. 33, 35; and Tab C, pp. 40, 42). Moreover, the redacted information in these pages sought by Burns consists not of "letterhead," but merely the typewritten name of the company appearing near the top of the document in the same typeface as the rest of the document. Because release of this redacted information would provide no more information to Burns than it already possesses, we fail to see how release of the information would make the pages any more useful to Burns in competing with Walters, and as a result cause substantial harm to Walters' competitive position. Therefore, we believe this information should be released.

PNR also redacted "points of contact for aggregates used by Walters" from another page released to Burns. Id. This document (Tab B, p. 32) is a letter from the President of Nuclear Shielding Supplies and Service, a producer of aggregates, which lists the names of companies that have used certain of its products. The company names, contacts, phone numbers, and the projects in which the aggregates were used were redacted from the document. In addition, the name of the recipient of the letter was redacted from the document. The courts have found in certain cases that information which reveals the customers and suppliers of a company is protected under Exemption 4. See, e.g., Braintree Elec. Light Dept. v. Department of Energy, 494 F. Supp. 287 (D.D.C. 1980) (customers and suppliers); Goldstein v. ICC, No. 82-1511, slip op. at (D.D.C. July 20, 1984) (customers). However, none of the companies that would be revealed by a release of the names in the letter in this case is either a customer or a supplier of Walters. Rather, all of these companies are, like Walters, manufacturers of concrete. Because we cannot conclude that release of the identity of these companies would likely cause substantial harm to the competitive position of Walters, this information should also be released. In addition, company names which have been revealed in the documents already released to Burns are redacted at Tab K, pp. 146-51. These names should also be released.

3. Cost, Profit, and Overhead Data

The vast majority of the data withheld from Burns concerned costs incurred by Walters prior to the termination of the Dry Cell Project in 1993. This information was submitted by Walters as part of a settlement proposal to recover its costs associated with the project. From our review of the documents, we find that Walters' profit, actual costs and historic overhead rate are contained in many of them. Specifically, such information is contained at Tab E (pp. 51- 52), Tab F (p. 54), Tab G (pp. 56-67, 70, 73-78, 82, 84-91), Tab H (pp. 94-102, 104-06, 108), Tab I (pp. 111-14, 116-18), Tab J (p. 120), and Tab K (pp. 124, 128, 138-143, 145-175).

The United States Court of Appeals for the District of Columbia has held that, in a competitive market, information that would reveal the profit rates, general and administrative rates, and actual costs of a competitor company is exempt from release under the FOIA. Gulf & W. Indus., Inc. v. United States, 615 F. 2d 527 (D.C. Cir. 1979) (Gulf & Western). In Gulf & Western, the court found that with such information, the company's "competitors would be able to accurately calculate [the company's] future bids and its pricing structure from the withheld information. The deleted information, if released, would likely cause substantial harm to [the company's] competitive position in that it would allow competitors to estimate, and undercut, its bids." Id. at 530.

Burns makes the following arguments in support of its position that this cost data should be released: (1) much of the cost information redacted is "composite" data, and thus its release would not reveal the cost of individual items; (2) many of the costs incurred by Walters were specific to the Dry Cell Project, and therefore would not be predictive of future costs; (3) some of the costs are quotes Walters received from other firms, which include profit, overhead, and depreciation, and therefore their release would not reveal Walters' direct costs; (4) certain costs are described by Walters as "value, not out of pocket costs." The appellant argues that the decisions in General Dynamics Corp., Space Sys. Div. v. Department of the Air Force, 822 F. Supp. 804 (D.D.C. 1992), and Acumenics Research & Technology v. Department of Justice, 843 F.2d 800 (4th Cir. 1988) should be applied to the present case.

However, in actuality the cases cited by the appellant indirectly support the withholding of the cost information that Burns argues should be released. In these cases, the information at issue was unit prices or option prices. Key to the courts' decisions to uphold the release of the information was the fact that "competitively sensitive information such as cost, overhead, or profit identifiers would not be revealed." General Dynamics, 822 F. Supp. at 807; see Acumenics, 843 F.2d at 802, 806 (release of unit prices would not reveal Acumenics' "profit multiplier," the "product of a company's overhead, general and administrative costs (G & A), and profit, (overhead rate x G & A rate x profit)"). By contrast, release of the cost information submitted by Walters would reveal the company's general and administrative expense and profit. This can be easily illustrated by reference to one of the documents released to Burns (Tab K, p. 175). The document contains a final tabulation of all the costs for which Walters sought reimbursement, plus its general and administrative expenses and profit. At the bottom of the page is the total of all these figures, which PNR released to Burns. If the costs claimed by Walters were released, Burns or anyone else could simply subtract the costs from the total, and arrive at the amount apportioned to Walters' general and administrative expenses and profit.

Profit, general and administrative expenses, and overhead have been recognized by the courts as "competitively sensitive information" which is protected under Exemption 4. General Dynamics, 822 F. Supp. at. 806; see Gulf &Western, 615 F.2d at 530 (general and administrative expenses and profit); Braintree, 494 F. Supp. at 287, 290 (profit and overhead); Westinghouse Elec. Corp. v. Schlesinger, 392 F. Supp. 1246, 1249 (E.D. Va. 1974) (profit margin); cf. North Carolina Network for Animals v. Department of Agric., No. 90-1443, slip op. at 2 (4th Cir. Feb. 5, 1991) (information not protected by Exemption 4 because it does not reveal, inter alia, profit margin); Pacific Architects and Eng'rs Inc. v. Department of State, 906 F.2d 1345, 1347-48 (9th Cir. 1990) (upholding disclosure because competitor would not be able to calculate submitter's profit margin); Brownstein Zeidman and Schomer v. Department of the Air Force, 7821 F. Supp. 31, 33 (D.D.C. 1991) (ordering disclosure because claim that profit margin could be deduced from withheld information was "speculative"). Though Burns' arguments accurately characterize much of the withheld cost information in the present case, these characterizations do not change the fact that release of the information would reveal Walters' profit and general and administrative expenses.(6) We therefore agree with PNR's withholding of this information.

Nonetheless, there is also information that was withheld from Burns that we believe should be released. The release of this information, described below, would be unlikely to cause substantial harm to the competitive position of Walters:

Page Information to be released

51: two words at the bottom of the page under the word "Melment- Superplasticizer"

52: dollar figure in the middle of the page below the body of the letter (does not appear to related to any other item on the page, and would therefore not identify an actual cost to Walters)

57: number of hours listed next to the name "Cary Sargent" (is revealed elsewhere in the documents released to Burns)

58: number of years under the column "Estimated Useful Life" (revealed elsewhere in documents); number of months on line "Suspension period"

59: first five words in Note 1

62: volume of melment superplasticizer (revealed elsewhere in documents); last two words of the first line of Note 6

63: last two words of the first sentence in Note 1

64: cost of item 3 (is revealed by volume and price on same line)

66: % of quantity required under column 6

67: submittal preparation time (revealed elsewhere in documents); remaining project to complete

74: three handwritten words at the bottom of page

76: number of months on line "Suspension period"

86: quantities in footnote at bottom of page

87: all information other than dollar amounts

90: absorption rate (revealed in mix design already released)

97: quantity under 1(a), "stockpiling;" number of tons/trip in Note 3

98: number of hours of labor in Note 5

104: number of units and tons

105: number of miles and tons

112: information under column 5, lines "Advance, Progress and Partial Payments" and "Net Payment Requested"

113: information under column 4, lines "Advance, Progress and Partial Payments" and "Net Payment Requested"

115: number of miles

116: number of miles, months; usage credit; information on last two lines of paragraph (c)

117: number of months, trucks

120: any dollar amounts that do not directly reflect costs claimed by Walters

In addition, many of the documents withheld from Burns contain handwritten numbers in the form of "##-#.#" (e.g., Tab G, p. 61). Because these numbers do not appear to reveal any information regarding Walters cost, profit, or overhead, they should also be released.

Finally, there are three pages of information that were inadvertently not released to Burns. Two of these pages appear to be the documentation referred to as "Tab J" on p. 99, n. 10. On remand, PNR should release any non-exempt information on these pages in accordance with the guidance set forth above.(7)

C. Adequacy of PNR's Search for Responsive Documents

Burns also asserts that there should be additional documentation in the possession of PNR concerning aggregates submitted for use in the Dry Cell Project. See Letter from Linda Szimhardt, Burns, to OHA (September 18, 1996) at 2-5. In the event we were to agree, we would order an additional search. A FOIA request deserves a thorough and conscientious search for responsive documents, and the OHA has remanded cases where it was evident that the search conducted was inadequate. See, e.g., James L. Schwab, 21 DOE ¶ 80,138 (1991); Glen Milner, 17 DOE ¶ 80,102 (1988). However, the FOIA 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 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).

We have contacted PNR, and they have informed us that any documents sought by Burns concerning the aggregates submitted by Walters would have been kept in the same location as the documents already released to Burns. PNR also has confirmed with the personnel who conducted the search that no additional documents exist which are responsive to its request. We therefore conclude that PNR conducted a search reasonably calculated to uncover responsive documents. However, on remand, Burns may provide any additional information to PNR that it thinks might help identify additional locations where responsive documents may be located. The FOIA and DOE regulations encourage the requester and agency to communicate and work together to resolve difficulties in providing responsive documents. This type of cooperation assists the agency in fulfilling the intent of the FOIA to make agency records accessible to the public, and it increases administrative efficiency in handling these requests. See 10 C.F.R. § 1004.4(c)(2); see also Douglas L. Parker, 20 DOE ¶ 80,107 (1989); Hartford Courant, 15 DOE ¶ 80,133 (1987).

III. Conclusion

For the reasons explained above, we will remand this case to PNR, which should promptly issue a new determination releasing the non-exempt information to the appellant in accordance with this decision, or shall explain in detail its reasons for withholding any of this information. In all other respects, the present appeal should be denied.

It Is Therefore Ordered That:

(1) The Freedom of Information Act Appeal filed by Burns Concrete, Inc., Case No. VFA-0182, is hereby granted as specified in Paragraph (2) below, and is denied in all other respects.

(2) This matter is hereby remanded to the DOE's Pittsburgh Naval Reactors Office, which shall promptly issue a new determination in accordance with the instructions set forth in the above Decision and Order.

(3) This is a final order of the Department of Energy from which any aggrieved party may seek judicial review pursuant to 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: December 6, 1996

(1) The responsive documents provided to Burns in PNR's January 16, 1996 determination were organized under Tabs labeled A through J. The documents provided to Burns under Tabs A and D are not at issue in the present case. Letter from Linda Szimhardt, Burns, to Director, OHA (June 7, 1996); Memorandum of telephone conversation between Linda Szimhardt, Burns, and Steven Goering, OHA (October 16, 1996).

(2) Burns disputes Walters' contention that Walters was not reimbursed by the government for the costs incurred in running tests on the specialty mix design. Although it appears from our review of the relevant documents that Walters was in fact reimbursed for the cost of testing, PNR assures us that Walters was reimbursed for the costs incurred in preparing the test results for submittal, but not for the costs of running the tests. Memorandum of telephone conversation between James Carey, PNR, and Steve Goering, OHA (October 24, 1996).

(3) Walters cites Gulf & Western as support for the position that its rather speculative claim of harm is sufficient to warrant Exemption 4 protection. However, the court in Gulf & Western was informed that future bids were going to be solicited on the same product at issue in that case. Gulf & Western, 615 F.2d at 530.

(4) Burns argues that the test data is not protected by Exemption 4 because ownership of the information passed to the government upon the termination of the project. See Letter from Linda Szimhardt, Burns Concrete, to OHA (November 1, 1996); Letter from Linda Szimhardt to OHA (October 29, 1996). However, the fact that the Government has ownership of information does not in itself preclude its withholding under Exemption 4 if its release would cause competitive harm to the submitter of the information. Cf. Critical Mass, 975 F.2d at 877-79 (competitive harm prong of Exemption 4 protects the interest of both the government and the submitter).

(5) We note that the FOIA requires that "[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt . . . ." 5 U.S.C. § 552(b) (1982). See EPA v. Mink, 410 U.S. 73, 89, 91 (1973); Mead Data Central, Inc. v. Air Force, 556 F.2d 242, 259-62 (D.C. Cir. 1977), cert. denied, 436 U.S. 927 (1978); Casson, Calligaro & Mutryn, 10 DOE ¶ 80,137 at 80,615 (1983). Segregation and release of non-exempt material is not necessary where it is "inextricably intertwined" with the exempt material so that release of the non-exempt material would "compromise" the withheld material, or where the amount of non-exempt material is small and so interspersed with exempt material that it would pose "an inordinate burden" to segregate. Lead Indus. Ass'n v. OSHA, 610 F.2d 70, 83-86 (2d Cir. 1979). Such segregation was performed by PNR on all the documents at issue other than the six pages containing testing data, which were withheld in their entirety.

(6) The "value engineering markup" withheld from Burns (Tab G, pp. 70, 84, 85) was derived solely from the overhead and profit figures which we have found to be protected under Exemption 4.

(7) Burns also contends that it was not provided "Tab L" referred to on p. 99 and the "Supplemental File" referred to on p. 94. PNR has informed us that "Tab L" refers to the documents at pp. 156-60, and that the "Supplemental File" refers to the documents at pp. 97-110. Memorandum of telephone conversation between James Carey, PNR, and Steve Goering, OHA (July 17, 1996).