Case No. VFA-0266, 26 DOE ¶ 80,169

March 19, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: J. Richard Quirk, Esquire

Date of Filing: February 4, 1997

Case Number: VFA-0266

On February 4, 1997, J. Richard Quirk, Esquire (Appellant) filed an Appeal from a final determination issued to him on January 3, 1997, by the Department of Energy's (DOE) Savannah River Operations Office (SR). In that determination, SR claimed that it did not possess any documents responsive to a request for information filed by the Appellant under the Freedom of Information Act (FOIA), 5 U.S.C. § 552(b), as implemented by the DOE in 10 C.F.R. Part 1004. This Appeal, if granted, would require the DOE to conduct an additional search for responsive information.

I. BACKGROUND

On October 8, 1996, the Appellant submitted a request for information to the DOE seeking copies of: "All contracts, inspection reports and other records concerning the Four Soil Vapor Extractor Unit built by Brown Engineering, reference # AB 10150 C." Request at 1. On January 3, 1997, SR issued a determination in which it claimed that:

DOE's contract with Westinghouse Savannah River Company (WSRC) ... provides: ?The following records are considered the property of the Contractor and are not Government Documents ... Confidential Contractor financial information, and correspondence between the Contractor and other segments of the Contractor located away from the DOE facility; ....' The records you have requested are considered confidential contractor documents; and therefore, they are not Government records and not covered under the FOIA.

Determination Letter at 1. On February 4, 1997, the Appellant filed the present Appeal, challenging the SR's determination that it did not possess any responsive documents.

II. ANALYSIS

Following an appropriate request, the FOIA requires agencies to search their records for responsive documents. We have stated on numerous occasions that a FOIA request deserves a thorough and conscientious search for responsive documents, and we have not hesitated to remand a case where it is evident that the search conducted was in fact inadequate. See, e.g., Hideca Petroleum Corp., 9 DOE ¶ 80,108 (1981); Charles Varon, 6 DOE ¶ 80,118 (1980). We review the adequacy of an agency's search under a "standard of reasonableness." McGehee v. CIA, 697 F.2d 1095, 1100-01 (D.C. Cir. 1983), modified in part on rehearing, 711 F.2d 1076 (D.C. Cir. 1983). This standard "does not require absolute exhaustion of the 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).

In the instant case, SR's determination suggests that documents responsive to the appellant's request exist, but are neither agency records nor subject to 10 C.F.R. § 1004.3(e)(1). Accordingly, we must determine on appeal 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). Moreover, we must determine whether any 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).

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). Documents are considered to be "agency records" if they were obtained by an agency and were within the agency'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.

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).

A. Whether the Scope of SR's Search for Responsive Documents was Appropriate

After reviewing the record, we found that SR's determination that all of the documents responsive to the Appellant's request were contractor records was not sufficiently supported in its determination letter. While it is quite possible that this determination is correct, it would have been unusual for a facility to be constructed on a DOE site without some records concerning the facility making their way into DOE's files. Accordingly, we contacted SR to ascertain the scope of its search for responsive documents. In response to our inquiry, SR has begun an additional search for responsive documents. This expanded search has already located and identified at least 4 responsive documents in the DOE's files. Accordingly, we are remanding this issue to SR for: (1) a continuation of this expanded search; and (2) determinations of the releasability of all responsive documents located by this search.

B. Whether any Responsive Documents Were the Property of the Government

A separate and distinct issue before us is whether all the records concerning the Four Soil Vapor Extractor Unit at the Savannah River Site are the property of WSRC. Applying the Orleans standard to the present case, we find that WSRC is clearly not an "agency" under the FOIA. Since WSRC is not an agency for the purpose of the FOIA, any documents that are the property of WSRC are not agency records. Nor are documents that are owned by a contractor, according to the terms of the contractual agreement between the contractor and the DOE, subject to 10 C.F.R. § 1004.3(e)(1). Because the determination letter did not indicate the nature of the documents it found to be owned by WSRC, we contacted SR to obtain clarification on this issue from SR officials. As of this writing, WSRC officials are compiling an index of documents in its possession that concern the Four Soil Vapor Extractor Unit built by Brown Engineering. Accordingly, on remand, SR must review this index and determine whether any document identified in the index is the property of the government. Any such document should be reviewed for possible disclosure under 10 C.F.R. § 1004.3(e)(1).

III. CONCLUSION

For the reasons set forth above, we are remanding this matter to the Department of Energy's Savannah River Operations Office for completion of the expanded search for responsive documents and the issuance of a new determination letter. On remand, SR should: (1) determine whether each document listed in WSRC's index is the property of the government, (2) identify each document located by SR's expanded search, (3) indicate whether each document identified in steps (1) or (2) is released or withheld, and (4) clearly explain any withholdings of documents.

It is Therefore Ordered That:

(1) The Freedom of Information Act Appeal filed by J. Richard Quirk, Esquire, on February 4, 1997 (Case Number VFA-0266) is hereby granted and remanded to the Savannah River Operations Office for further processing in accordance with the instructions set forth above.

(2) 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: March 19, 1997