Case No. VFA-0316, 26 DOE ¶ 80,212

August 18, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner:Los Alamos Study Group

Date of Filing: July 21, 1997

Case Number: VFA-0316

On July 21, 1997, the Los Alamos Study Group (LASG) filed an Appeal from a determination issued to it on June 16, 1997, by the Freedom of Information Officer of the Office of Public Affairs of the Department of Energy's Albuquerque Operations Office (FOIA Officer). The FOIA Officer issued that determination in response to a request for information submitted by the LASG 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 Appeal, if granted, would require the DOE's Albuquerque Operations Office to release the requested information.

The FOIA requires that federal agencies generally release documents to the public upon request. The FOIA, however, lists nine exemptions that set forth the type of information that an agency may withhold at its discretion. 5 U.S.C. § 552(b); 10 C.F.R. § 1004.10(b). The DOE regulations further provide that the DOE release to the public a document exempt from mandatory disclosure under the FOIA if the DOE determines that federal law permits disclosure and that it is in the public interest. 10 C.F.R. § 1004.1.

Background

On May 6, 1997, the LASG filed a request under the FOIA in which it sought copies of "a list or lists of all Los Alamos National Laboratory's contractors, consultants, associates, fellows - all individuals and companies other than regular University of California [UC] employees who received funds for services or goods provided - for the calendar year 1996 and the amount paid to them in FY 1996." The FOIA Officer issued a determination on June 16, 1997 stating that the records requested are procurement records in the possession and control of UC. Thus, the FOIA Officer determined that the requested records are not agency records subject to the provisions of the FOIA. In its Appeal, the LASG requests that the OHA direct the FOIA Officer to release the requested information. Specifically, the LASG makes the following three arguments to support its contention that the FOIA Officer must release the requested information:

1. The requested documents are "agency records" since the DOE obtained the records from the Los Alamos National Laboratory, exercised control and possession over the documents, and used the documents in the conduct of its official duties.
2. The University of California contract provides for government ownership of procurement records.
3. The Los Alamos National Laboratory is an "Agency" within the meaning of the FOIA.

Analysis

Our threshold inquiry in this case is whether the requested records are "agency records," and thus subject to the FOIA, under the criteria set out by the federal courts. Cf., 5 U.S.C. § 552(f) (describing the scope of the term "agency" under the FOIA). 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). For the reasons set forth below, we conclude that the records in question are not "agency records" and that they are also not 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 agencies must make available to the public. See 5 U.S.C. § 552(a). In interpreting this phrase, we have applied a two-step analysis fashioned by the courts for determining whether documents created by non-federal organizations, such as UC, are subject to the FOIA. See, e.g., BMF 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 we should regard an entity as an agency for purposes of federal law. In United States v. Orleans, 425 U.S. 807 (1976), a case that 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, UC is the contractor responsible for maintaining and operating the Los Alamos National Laboratory. While the DOE obtained UC's services and exercises general control over the contract work, it does not supervise UC's day-to-day operations. See Contract No. W-7405-ENG-36. We therefore conclude that UC is not an "agency" subject to the FOIA.

Although UC is not an agency for the purposes of the FOIA, its records relevant to the LASG request could become "agency records" if DOE obtained them and they were within the DOE's control at the time the LASG made its FOIA request. 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, we have determined that no responsive documents were in the agency's control at the time of the appellant's request.(1) Based on these facts, the requested procurement documents clearly 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.

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 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 DOE and UC to determine the status of the requested records. That contract generally states,

Except for those records owned by the University pursuant to paragraph (b) below, all records acquired or generated by the University's employees at the Laboratory or at the University's Laboratory Administrative Management Oversight Unit in the performance of this contract, shall be the property of the Government . . . .

Contract No. W-7405-ENG-36. Paragraph (b)(8) (modified September 23, 1994) states that the excluded category of Contractor's records includes "[a]ll records related to any procurement action by the Laboratory. . . ." Thus, because records pertaining to procurement actions by the Laboratory are not among the records that are property of the Government under the DOE's contract with UC, these records 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 release under the DOE regulations. Accordingly, we must deny the LASG Appeal.

It Is Therefore Ordered That:

(1) The Appeal filed by the Los Alamos Study Group on July 21, 1997, Case Number VFA- 0316, 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 agency records are situated, or in the District of Columbia.

George B. Breznay

Director

Office of Hearings and Appeals

Date: August 18, 1997

(1)See August 13, 1997 Fax transmission from Terry Apodaca, Albuquerque Operations Office, to Leonard M. Tao, OHA Staff Attorney.