Case No. VFA-0239, 26 DOE ¶ 80,140

November 29, 1996

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Applicant: Thomas Stampahar

Case Number: VFA-0239

Date of Filing: October 31, 1996

On October 31, 1996, Thomas Stampahar of Henderson, Nevada filed an Appeal from a determination issued on October 3, 1996 by the Nevada Operations Office of the Department of Energy (DOE). That determination denied Mr. Stampahar's request for information submitted pursuant to 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 requires that agency records held by a covered branch of the federal government, and which have not been made public in an authorized manner, generally be released to the public upon request. 5 U.S.C. § 552(a)(3). This Appeal, if granted, would require the DOE to release the withheld information.

BACKGROUND

Mr. Stampahar, a former employee of the prime contractor at the Nevada Operations Office, Bechtel Nevada, filed a FOIA and Privacy Act request for his personnel, training, and medical records. He also sought a copy of a Bechtel Nevada interoffice memorandum which contained allegations of his suspected malfeasance during a work assignment in Atlanta. In addition he requested a copy of any documents prepared in connection with the Bechtel Nevada investigation into those allegations. Finally, he also sought Bechtel Nevada documents related to a shoving incident between him and another employee. The Nevada Operations Office responded on October 3, 1996 under both the FOIA and the Privacy Act. In its letter, that Office informed Mr. Stampahar that the DOE had no documents responsive to his request. It further informed him

that any documents that might be responsive were the property of Bechtel Nevada. It also informed him that certain personnel records could be obtained directly from Bechtel Nevada. Mr. Stampahar appeals the Nevada Operations Office determination letter regarding the interoffice memorandum dealing with the alleged wrongdoing in Atlanta and corresponding investigatory material, as well as the documents dealing with the shoving incident.

ANALYSIS

Under the FOIA, in response to an appropriate request that reasonably describes the information sought and conforms to agency regulations, an agency must search its records and release responsive, unpublished, non-exempt information which it has created or obtained at the time of the request. 5 U.S.C. § 552(a)(3), (b); Department of Justice v. Tax Analysts, 492 U.S. 144-45 (1989); James L. Schwab, 22 DOE ¶ 80,127 at 80,558 (1992). A search that complies with the FOIA need not cover every corner of the agency. Oglesby v. Department of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990) (and cases cited therein); Miller v. Department of State, 779 F.2d 1378, 1383 (8th Cir. 1985); Martha L. Powers, 24 DOE ¶ 80,147 at 80,618 (1994); Citizens' Action Committee of Pike County Citizens, 22 DOE ¶ 80,178 at 80,679 (1993). Rather, an adequate search under the FOIA need only be one reasonably calculated to uncover the documents requested. Safecard Services, Inc. v. Securities and Exchange Comm'n, 926 F.2d 1197, 1201 (D.C. Cir. 1991); Truitt v. Department of State, 897 F.2d 540, 542 (D.C. Cir. 1990) (and cases cited therein); Meeropol v. Meese, 790 F.2d 942, 950-51 (D.C. Cir. 1986); Weisberg v. Department of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984); U.S. Solar Roof, 26 DOE ¶ 80,102 at 80,504 (1996); William H. Payne, 24 DOE ¶ 80,145 at 80,615 (1994); Energy Products, Inc., 23 DOE ¶ 80,114 at 80,528 (1993). "An adequate search, however, must be 'a thorough and conscientious search for responsive documents.'" Energy Research Foundation, 22 DOE ¶ 80,114 at 80,529 (1992) (quoting The Lowry Coalition, 21 DOE ¶ 80,108 at 80,535 (1991)). This Office will remand a case for further action if it is evident that an inadequate search was conducted, or if evidence reveals that other documents that were not identified during the initial search exist. Id. See also Linda J. Carlisle, 24 DOE ¶ 80,124 at 80,560 (1994); McGraw-Hill Nuclear Publications, 22 DOE ¶ 80,157 at 80,627 (1992); James L. Schwab, 21 DOE ¶ 80,153 at 80,658 (1991). Generally, a FOIA search is a broad, all-encompassing search that would identify any documents also subject to Privacy Act analysis. Anibal L. Taboas, 25 DOE ¶ 80,207 at 80,775 (1996). Thus, because this appeal only involves the adequacy of a search and falls under the general rule, we analyze this case under FOIA principles.

To determine if a proper search was performed, we contacted the Nevada Operations Office FOIA Officer. She informed us that, in the ordinary course of business, the Nevada Operations Office would not have records of this type dealing with Bechtel Nevada employees. She stated that the Nevada Operations Office would only receive such material if Mr. Stampahar had filed a whistleblower complaint, a complaint with the Office of the Inspector General or a complaint with the DOE legal staff. The Nevada Operations Office FOIA Officer checked for all of these possibilities and found no responsive documents. At our request, she rechecked all of these places and again found no responsive documents. Mr. Stampahar later confirmed that he has not filed any complaint with the DOE. Under these circumstances, we find that the Nevada Operations Office has undertaken a reasonable search and that it has no responsive documents. Cf. Archie M. LeGrand, Jr., 25 DOE ¶ 80,171 at 80,681 (1996).

Although the Nevada Operations Office does not have responsive documents, Bechtel Nevada may have the information Mr. Stampahar seeks. In his Appeal letter, Mr. Stampahar does not claim that Bechtel Nevada is an agency of the federal government subject to the FOIA. Instead, he specifically asserts that the records he requests fall within the scope of 10 C.F.R. § 1004.3(e). Under that regulation, the DOE will, to the maximum extent possible, make available in response to a FOIA request contractor records which are acquired or generated by the contractor in the course of the contract and which are owned by the DOE even if not in the possession of the agency. 10 C.F.R. § 1004.3(e)(1), (e)(3)(ii).

The contract between the DOE and Bechtel Nevada, provides that all records acquired or generated by Bechtel Nevada in the course of the contract are the property of the United States Government. Contract No. DE-AC08-96NV11718, ¶ H.32(a). However, the contract contains some exclusions to this general rule. In particular, the contract states that:

3. Employee relation records and files such as records and files pertaining to:

(A) Qualifications or suitability for employment of any employee, applicant or former employee

(B) Employee and union grievances...

(D) Allegations, investigations, and resolution of employee misconduct

(E) Employee discipline.

Id. at ¶ H.32(b)(3).

We believe that the requested documents fall into one of these categories of exclusion. The interoffice memorandum alleging misfeasance and the associated investigation clearly fall into clause (B) and perhaps into clauses (A) and (D). Similarly, the shoving incident clearly falls into Clause (E) and perhaps into the other clauses as well. Cf. Diane C. Larson, 26 DOE ¶ 80,112 at 80,538 (1996). We have reviewed matters of this type before in connection with our FOIA appeal jurisdiction. Our previous determinations on these types of matters reach a similar conclusion. See, e.g., William H. Payne, 25 DOE ¶ 80,184 at 80,712 (1996) (records on alleged contractor employee "double-dipping" are contractor personnel documents not subject to section 1004.3(e)); Dr. J.C. Laul, 22 DOE ¶ 80,129 at 80,562 (1992) (matters related to contractor employee misconduct and dismissal are internal contractor personnel records not subject to FOIA); Government Accountability Project, 22 DOE ¶ 80,103 at 80,505-06 (1992) (depositions concerning alleged contractor retaliation against employee are internal personnel records not subject to FOIA). Accordingly, we find that the records Mr. Stampahar seeks are not subject to release under 10 C.F.R. § 1004.3(e). Because the requested documents are neither in the possession of the DOE nor subject to the FOIA as agency records and do not fall under the criteria for FOIA treatment for DOE- owned, contractor-held records under section 1004.3(e), Mr. Stampahar's appeal should be denied.

It Is Therefore Ordered That:

(1) The Appeal filed by Thomas Stampahar of Henderson, Nevada, OHA Case No. VFA-0239, is hereby denied.

(2) 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 alleged agency records are situated, or in the District of Columbia.

George B. Breznay

Director

Office of Hearings and Appeals

Date: November 29, 1996