Case No. VFA-0228, 26 DOE ¶ 80,136

November 26, 1996

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Ashok K. Kaushal

Date of Filing: October 15, 1996

Case Number: VFA-0228

On October 15, 1996, Ashok K. Kaushal filed an Appeal from a determination issued to him on September 26, 1996, by the Department of Energy's Office of the Inspector General (IG). That determination was issued in response to a request for information submitted under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the 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 July 12, 1995, Kaushal filed a request under the FOIA in which he sought a copy of documents related to a whistleblower complaint he has filed with the DOE. Specifically, Kaushal requested: (1) the response to his complaint filed by his employer Sandia Corporation (Sandia), a DOE contractor which operates the Sandia National Laboratories (SNL); (2) an audit report conducted for Sandia by Lockheed Martin Company; and (3) costs of the audit and legal costs incurred by Sandia related to his whistleblower complaint. Letter from A.K. Kaushal to Elva Barfield, DOE (July 4, 1995).

The IG issued a determination on September 26, 1996, denying Kaushal's request. Letter from Michael W. Conley, Deputy Inspector General for Inspections, IG, to A.K. Kaushal (September 26, 1996). The IG stated that the documents responsive to Kaushal's request were being withheld in their entirety pursuant to FOIA Exemption 7(A). Id. In invoking Exemption 7(A), the IG stated that it has not reached a final resolution of its investigation of Kaushal's whistleblower complaint; therefore, release "could prematurely reveal evidence and interfere with the ongoing enforcement proceeding." Id. The IG also stated that "it is not in the public interest to release inspection information when, as in this case, release could tend to prematurely disclose inspection efforts, or

provide individuals involved in the inspection an opportunity to impede an appropriate resolution of the inspection." Id.

In his Appeal, Kaushal states that

the information I requested is not part of the law enforcement proceeding. Therefore, the exemption is incorrectly applied. It is in the public interest to know how much money Sandia has spent on legal fees and costs and at the same time paying $2 million dollars [sic] extra to the [New Mexico] State Taxation and Revenue Department.

Appeal at 1.

Subsequent to the filing of Kaushal's Appeal, the IG informed us that it has no documents in its possession which would reflect the costs incurred by Sandia related to Kaushal's whistleblower complaint. Memorandum of telephone conversation between Richard Fein, IG, and Steve Goering, Office of Hearings and Appeals (OHA) (November 6, 1996). The DOE's Albuquerque Operations Office (DOE/AL) informed us that Sandia had not submitted documentation of costs related to this matter to the DOE. Memorandum of telephone conversation between Sharon E. Klafke, DOE/AL, and Steve Goering, OHA (November 14, 1996).

II. Analysis

A. Documents Withheld from the Appellant

Regarding the documents withheld from the appellant, we find that Kaushal's request for documents should have been processed by the IG under both the FOIA and the Privacy Act, 5 U.S.C. § 552a. The Privacy Act requires each federal agency to permit an individual to gain access to information which is contained in any "system of records" maintained by the agency. 5 U.S.C. § 552a(d); 10 C.F.R. § 1008.6(a)(2). A "system of records" is defined as a "group of any records under the control of any agency from which information is retrieved by the name of the individual or some identifying number, symbol or other identifying particular assigned to the individual." 5 U.S.C. § 552a(a)(5); 10 C.F.R. § 1008.2(m). An individual is entitled under the Privacy Act "to gain access to his record or to any information pertaining to him which is contained in the system." 5 U.S.C. § 552a(d)(1).

The documents withheld by the IG in this case are contained in a group of records from which information is retrieved by the names of individuals or other identifying particulars, i.e. a "system of records" as defined under the Privacy Act, and are specifically contained in Kaushal's record. Therefore, subject to the exemptions set forth in the Privacy Act, Kaushal is entitled to gain access to this record.(1) Accordingly, we will remand the Kaushal request to the IG for processing under the Privacy Act.

B. Documentation of Sandia's Costs

Because, as we discussed above, no documents revealing Sandia's cost related to Kaushal's whistleblower complaint have been submitted to the DOE, we must determine whether any responsive records in the possession of Sandia, if such records exist, 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). After reviewing this matter, for the reasons stated below we conclude that the Sandia records would not be "agency records" nor would they be subject to release under the 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 a DOE contractor, 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, Sandia is the prime contractor responsible for maintaining and operating SNL. While the DOE obtained Sandia's services and exercises general control over the contract work, it does not supervise Sandia's day-to-day operations. We therefore conclude that Sandia is not an "agency" subject to the FOIA.

Although Sandia is not an agency for the purposes of the FOIA, records in its possession responsive to Kaushal's 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 the DOE and Sandia to determine the status of such records. That contract states:

H-18 OWNERSHIP OF RECORDS RELATING TO THIS CONTRACT

(a) Government's Records. Except as is provided in paragraph (b) of this provision and as may be otherwise agreed upon by the Government and the Contractor, all records acquired or generated by the Contractor in its performance of this contract shall be the property of the Government and shall be delivered to the Government or otherwise disposed of by the Contractor either as the Contracting Officer may from time to time direct during the progress of the work, or in any event, as the Contracting Officer shall direct upon completion or termination of the contract.

(b) Contractor's Records. The following records acquired or generated by the Contractor in its performance of this contract (to the extent not listed and maintained as a Privacy Act record pursuant to the Section H provision entitled "Privacy Act System of Records")(2) are the property of the Contractor and are not within the scope of paragraph (a), above.

. . .

(4) Employee relations records and files such as records and files pertaining to:

. . .

(ii) Allegations, investigations, and resolution of employee misconduct;

. . .

(iv) Employee charges of discrimination;

. . .

(7) Internal legal files;

. . . .

Contract No. DE-AC04-94AL85000, Clause H-18. We find that any documents in Sandia's possession which would reflect the costs incurred by Sandia related to Kaushal's whistleblower complaint would fall within the categories described in subsections (b)(4)(ii) and (b)(4)(iv) or (b)(7) of Clause H-18 of the contract between the DOE and Sandia. Therefore, until such time as these documents would be submitted to the DOE, they would be contractor's records, which are not subject to release under the DOE regulations. Accordingly, we find that the records relating to Sandia's costs sought by the appellant are neither "agency records" within the meaning of the FOIA, nor subject to the FOIA under DOE regulations.

III. Conclusion

For the reasons stated above, we will remand the appellant's request to the IG for processing under the Privacy Act. In all other respects, the Kaushal Appeal will be denied.

It Is Therefore Ordered That:

(1) The Appeal filed by Ashok K. Kaushal on October 15, 1996, Case Number VFA-0228, is hereby granted as specified in Paragraph (2) below, and is denied in all other respects.

(2) This matter is hereby remanded to the Office of the Inspector General, which shall 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 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 26, 1996

(1)Although Kaushal's request cited only the FOIA, it is the general practice of the DOE to process a request for an individual's own record maintained in a Privacy Act system of records under both the Privacy Act and the FOIA, regardless of the statute(s) cited. Telephone conversation between GayLa Sessoms, Chief FOI and Privacy Group, DOE, and William Schwartz, Staff Attorney, OHA (November 21, 1996). See Freeman v. Department of Justice (FBI), 822 F. Supp. 1064, 1066 (S.D.N.Y. 1993) (implicitly accepting defendant's rationale that "because documents releasable pursuant to FOIA may not be withheld as exempt under the Privacy Act," it is proper for agency not to distinguish between FOIA and Privacy Act requests when assigning numbers to establish order of processing, and quoting Report of House Committee on Government Operations, H.R. Rep. No. 726, as mandating such practice); cf. Wren v. Harris, 675 F.2d 1144, 1146 & n.5 (10th Cir. 1982) (per curiam) (construing pro se complaint to seek information under either Privacy Act or FOIA even though only FOIA was referenced by name); Pearson v. DEA, No. 84-2740, slip op. at 2 (D.D.C. Jan. 31,1986) (same).

(2)Clause H-15, entitled "Privacy Act Systems of Records," lists the following systems of records, none of which would contain the documents reflecting Sandia's cost which are sought by Kaushal.

DOE System No. Title

DOE-5 Personnel Records of Former Contractor Employees

DOE-31 Firearms Qualifications Records

DOE-35 Personnel Radiation Exposure Records

DOE-38 Occupational and Industrial Accident Records

DOE-42 Personnel Security Clearance Index

DOE-44 Special Access Authorization for Categories of Classified Information

DOE-45 Weapon Data Access Control System

DOE-47 Security Investigations

DOE-48 Security Education and/or Infraction Reports

DOE-50 Personnel Assurance Program Records

DOE-51 Employee and Visitor Access Control Records

DOE-52 Alien Visits and Participation

Contract No. DE-AC04-94AL85000, Clause H-15.