Case No. VFA-0323, 26 DOE ¶ 80,216

September 2, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner:Hanford Advisory Board

Date of Filing:August 7, 1997

Case Number: VFA-0323

On August 7, 1997, the Hanford Advisory Board (Appellant) filed an Appeal from a July 25, 1997 determination by the Richland Operations Office (ROO) of the Department of Energy (DOE). In that determination, ROO denied the Appellant's request for information under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004. In its Appeal, the Appellant asks that we order ROO to release the withheld material.

The FOIA requires that federal agencies generally release documents to the public upon request. The FOIA, however, lists nine exemptions that set forth the types 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 whenever the DOE determines that disclosure is in the public interest and not contrary to other laws. 10 C.F.R. § 1004.1.

I. Background

In its request for information, the Appellant sought a portion of the successful proposal that Fluor Daniel Hanford, Inc. (FDH) made in competition for the management and operations contract at the Hanford facility. Specifically, the Appellant sought the portions of the proposal dealing with the amount of money FDH claimed it could save the DOE, as well as the Executive Summary portion of the proposal. In the determination letter, ROO, pursuant to the provisions of 5 U.S.C. § 552(b)(3) (Exemption 3) and Subtitle B, Section 821 of the National Defense Authorization Act of 1997 (NDAA), 41 U.S.C. § 253b(m), withheld the proposal. ROO stated that Section 821 of the NDAA bars release of any portion of the proposal. Under the NDAA, a proposal may not be made available to any person under the FOIA when the proposal has not been set forth or incorporated by reference in the contract. ROO stated that since the FDH proposal has not been set forth or incorporated by reference in the contract between DOE and FDH, it must withhold the requested information.

In its appeal, the Appellant makes three arguments. First, it argues that the NDAA should not be applied retroactively to a proposal and resulting contract, each of which was issued prior to the

NDAA's effective date. Second, it argues that the ROO determination letter was not signed by a FOIA Officer. Third, it argues that because the amount of projected savings and other facts were already released to the public by DOE, the agency has waived its right to withhold the requested information.

II. Analysis

Exemption 3 of the FOIA, cited by ROO, allows agencies to withhold information if the withholding is specifically authorized by another federal statute. However, the withholding statute must meet strict statutory guidelines. An agency properly invokes Exemption 3 only where the withholding statute "(A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld." 5 U.S.C. § 552(b)(3); 10 C.F.R. § 1004.10(b)(3). This Office has found the NDAA to be an Exemption 3 statute, because it meets the subpart (A) requirement of that exemption. Chemical Weapons Working Group Inc., 26 DOE ¶ 80,170 at 80,730 (1997); see also Fried, Frank, Harris, Shriver & Jacobson, 26 DOE ¶ 80,163 (1997) (Fried, Frank).(1)

We first examined whether ROO applied the NDAA correctly. Under the NDAA, proposals must be withheld, except if a proposal has been set forth or incorporated by reference into a contract. In that case, the proposal must be released. Under Fried, Frank, this exception also includes the case in which portions of the proposal (as opposed to the entire proposal) are set forth or incorporated by reference into the contract. Id. at 80,709. Upon review of the FDH/DOE contract, we find that no relevant portions of the proposal fall within this exception. We further note that the ROO determination letter was properly signed by a Denying Official, in accordance with the regulations governing determination letters denying requests for records. See 10 C.F.R. § 1004.7(b)(2).

Next, we find that it was proper for ROO to apply the NDAA to a document created prior to the effective date of the Act. The text of the statute does not in any way limit its authority to documents created after the Act's effective date of September 23, 1996. Congress clearly has the power to change the scope of the FOIA at any time, and to do so with respect to all federal agency records in existence at the time. Further, as a policy matter, it would be logistically quite complicated to apply the Act to some proposals and not others.

Nevertheless, we find merit in the Appellant's argument that the DOE has waived its right to withhold the requested information by releasing certain information about the FDH proposal. In various newspaper articles the Appellant submitted, the Appellant has demonstrated that the DOE stated publicly at press conferences and press releases surrounding the awarding of the contract that, inter alia, FDH has pledged to save approximately $200 million each year for the next five years and that FDH will not receive any fee should it fail to meet certain objectives.

In our view, FOIA principles such as waiver extend to material covered by Exemption 3 and the NDAA. The D.C. Circuit has extended waiver principles in Exemption 3 cases involving other statutes. E.g., Fitzgibbon v. Central Intelligence Agency, 911 F.2d 755 (D.C. Cir. 1990) (Fitzgibbon) (waiver principle applied but 50 U.S.C. § 403(d)(3) found to protect foreign intelligence information

since publicly disclosed information pertained to later time period). Thus, we see no reason not to apply the waiver principle in the NDAA context.(2)

The extent to which the DOE has waived FOIA exemptions depends on the circumstances of the disclosure. Carson v. United States Department of Justice, 631 F.2d 1008, 1016 n.30 (D.C. Cir. 1980); Marlene Flor, 26 DOE ¶ 80,104 (1996). Under Fitzgibbon, the prior released information must meet three criteria to be considered to have waived Exemption 3 applicability: (1) the information requested must be as specific as the information previously released; (2) the information must match the information previously disclosed; and (3) and the information requested must already

have been made public through an official and documented disclosure. 911 F.2d at 765 (citing Afshar v. Department of State, 702 F.2d 1125, 1133 (D.C. Cir. 1983) (Afshar)). In this case, we find that the publicly released statements by the DOE meet the Afshar criteria and are sufficient to waive the applicability of Exemption 3. Since even "off-the-record" disclosures to the press have been found to create a waiver, Lawyers Comm. for Human Rights v. INS, 721 F. Supp. 552, 569 (S.D.N.Y. 1989), a major national announcement by the DOE must do the same. However, the waiver of information in the proposal only extends to the precise facts that the DOE released publicly and that are duplicative of facts contained in the proposal. Therefore, we are remanding this case to ROO to determine which precise facts the DOE released are contained in the proposal and responsive to the Appellant's request. ROO should then release these portions, unless they are subject to an exemption,(3) in which case ROO should provide adequate justification for withholding any portion of them.

It Is Therefore Ordered That:

(1) The Appeal filed by the Hanford Advisory Board on August 7, 1997, Case No. VFA-0323, is granted to the extent set forth in paragraph (2) below and is denied in all other respects.

(2) This case is hereby remanded to the Richland Operations Office, which shall promptly issue a new determination in accordance with the guidance set forth in the above Decision.

(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: September 2, 1997

(1)1/ The NDAA provision likely also meets the requirements of subpart (B) of Exemption 3 since it refers to a particular type of matter to be withheld, i.e., proposals.

(2)We note however that we are not deciding whether waiver principles apply to information covered by other statutes, such as information classified as Restricted Data pursuant to the Atomic Energy Act of 1954, 42 U.S.C. §§ 2011-2296, or information covered by the Trade Secrets Act, 18 U.S.C. § 1905.

(3)ROO should consider whether Exemption 4 or the Trade Secrets Act applies to any material for which it determines waiver has occurred.