Case No. VFA-0240, 26 DOE ¶ 80,138

November 27, 1996

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Douglas A. Holman

Date of Filing: November 4, 1996

Case Number: VFA-0240

On September 16, 1995, Douglas A. Holman filed a request with the Department of Energy's Oak Ridge Operations Office (DOE/OR) under the Freedom of Information Act (FOIA), 5 U.S.C. § 552. Holman requested documents related to an investigation of his role as a union steward conducted by his employer, Lockheed Martin Energy Systems (LMES). Letter from Doug A. Holman to Amy Rothrock, DOE/OR (September 16, 1995). Under a contract with the DOE, LMES operates the Y- 12 plant at DOE's Oak Ridge National Laboratory (ORNL). DOE/OR issued a determination on October 17, 1996, in which it stated that its search of files in the possession of DOE/OR did not reveal responsive records, but adding that its search did not extend to records which are the property of LMES. Letter from Amy L. Rothrock to Doug Holman (October 17, 1996). On November 4, 1996, Douglas A. Holman filed an Appeal from that determination. In his Appeal, Holman requests that the Office of Hearings and Appeals (OHA) "take whatever steps are necessary to acquire from [LMES] the information I requested . . . ." Letter from Doug A. Holman to Director, OHA (October 30, 1996).

Our threshold inquiry in this case is whether the records requested by the appellant 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 records in question are not "agency records" and are not subject to release 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 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, LMES is the prime contractor responsible for maintaining and operating ORNL. While the DOE obtained LMES's services and exercises general control over the contract work, it does not supervise LMES's day-to-day operations. We therefore conclude that LMES is not an "agency" subject to the FOIA.

Although LMES is not an agency for the purposes of the FOIA, its records responsive to Holman'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 LMES to determine the status of these records. That contract states:

H.30 DEAR 970.5204-AL 92-84 OWNERSHIP OF RECORDS (NOV 1992)

(a) Government's Records. Except as is provided in paragraph (b) of this clause, 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 Own Records. The following records are considered the property of the Contractor and are not within the scope of paragraph (a) above.

(1) Personnel files (excluding personnel radiation exposure records) maintained on individual employees, applicants, and former employees;

. . .

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

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

(ii) Internal complaints, grievance records,

(iii)Arbitration proceedings pursuant to the provisions of any labor contract,

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

(v) Employee discipline,

(vi) Employee charges of discrimination,

(vii)Negotiation with any labor organization in connection with any labor contract,

. . . .

Contract No. DE-AC05-84OR21400, Clause H.30.

The documents Holman seeks, pertaining to an internal investigation by LMES of an employee relations matter, would fall within the categories described in subsections (b)(1) and (b)(4) of Clause H.30 of the contract between the DOE and LMES. They are therefore the contractor's own records, which 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 Douglas A. Holman on November 4, 1996, Case Number VFA-0240, 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 27, 1996