Patricia C. McCracken, Case No. VFA-0337, October 1, 1997

Case No. VFA-0337, 26 DOE ¶ 80,227

October 30, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Patricia C. McCracken

Date of Filing: October 1, 1997

Case Number: VFA-0337

On October 1, 1997, the Office of Hearings and Appeals (OHA) received an Appeal filed by Patricia C. McCracken from a determination that the Manager of the Department of Energy’s (DOE) Savannah River Operations Office issued to her. The Manager issued this determination in response to a request for information that Ms. McCracken submitted in accordance with the provisions of 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 Manager to release certain documents and to conduct a further search for responsive materials.

The FOIA generally requires that documents held by the federal government be released to the public upon request. However, Congress has provided nine exemptions to the FOIA which set forth the types of information agencies are not required to release. Under the DOE’s regulations, a document which is exempted from disclosure under the FOIA shall nonetheless be released to the public whenever the DOE determines that disclosure is not contrary to federal law and is in the public interest. 10 C.F.R. § 1004.1.

I. Background

In her FOIA request, Ms. McCracken sought access to a copy of the contract between Westinghouse Savannah River Company (WSRC), the Management and Operations contractor at the DOE’s Savannah River facility, and BNFL Savannah River Corporation (BNFL), and any documents concerning BNFL’s qualifications or setting forth BNFL’s current duties at the site. In his response, the Manager provided Ms. McCracken with a copy of BNFL’s contract with WSRC and a copy of WSRC’s contract with the DOE.

The Manager also identified as responsive to Ms. McCracken’s request a combined proposal that WSRC, BNFL, and two other subcontractors submitted to the DOE in response to a solicitation for proposals. This proposal led to the awarding in 1996 of the current Management and Operations contract to WSRC. The Manager withheld the proposal in its entirety under Exemption 3 of the FOIA. 5 U.S.C. § 552(b)(3). In so doing, he found that release of the proposal would violate Section 821 of the National Defense Authorization Act of 1997, P.L. 104-201 (NDAA).

In her Appeal, Ms. McCracken contends that the Manager improperly applied Exemption 3 in withholding the proposal. She also contests the adequacy of the search for responsive documents.

II. Analysis

A. Exemption 3

Exemption 3 of the FOIA allows agencies to withhold information if specifically authorized by another federal statute. However, the authorizing statute must satisfy one of two criteria. It must either (i) require that the information be withheld from the public in such a manner as to leave no discretion on the issue, or (ii) establish particular criteria for withholding or refer to particular types of information to be withheld. 5 U.S.C. § 552(b)(3). The Supreme Court has established a two-prong standard of review for Exemption 3 cases. See CIA v. Sims, 471 U.S. 159, 167 (1985). First, the agency must determine whether the statute in question is a statute of exemption as contemplated by Exemption 3. Id. at 167. Second, the agency must determine whether the withheld material satisfies the criteria of the exemption statute.

We have previously found that the recently enacted NDAA is a statute of exemption for purposes of 5 U.S.C § 552(b)(3). In Chemical Weapons Working Group Inc., 26 DOE ¶ 80,170 (1997) (Chemical Weapons), we stated that the NDAA is a federal statute that contains language specifically prohibiting agencies from releasing contractor proposals under the FOIA. Id. at 80,730. That statute states, in pertinent part, that “a proposal in the possession or control of an executive agency may not be made available to any person under section 552 of title 5, United States Code.” NDAA, § 821(b). We therefore stated in Chemical Weapons that since the NDAA allows agencies no discretion in withholding certain types of information, it satisfies the first criterion of Exemption 3. Ms. McCracken has presented no arguments that convince us that this holding is incorrect. We therefore conclude that the NDAA is a statute of exemption for purposes of the FOIA.

We must next determine if the proposal that was withheld by the Manager is included within the coverage of section 821(b) of the NDAA. By its terms, this provision applies to “any proposal, including a technical, management, or cost proposal, submitted by a contractor in response to the requirements of a solicitation for a competitive proposal.” Id. (1) We find that section 821(b) is applicable to the proposal in question, and that the Manager properly withheld that document under Exemption 3. In its solicitation for proposals for the Savannah River Management and Operations contract, the DOE sought submissions from integrated teams of companies that could perform the various functions associated with operating that facility. In response to this solicitation, WSRC, BNFL and two other companies submitted a joint proposal that was reviewed and accepted by the DOE Source Evaluation Board (SEB). (2) Although technically BNFL is a subcontractor to WSRC, BNFL was named as part of the performing entity in the joint proposal. BNFL’s qualifications were reviewed by the SEB and were a factor in the SEB’s acceptance of the joint proposal. Moreover, BNFL cannot be replaced as a member of the performing entity without the DOE’s approval. See memorandum of October 27, 1997 telephone conversation between Robert Palmer, OHA Staff Attorney, and Tom Reynolds, Director, Department of Contracts, Savannah River Operations Office. Therefore, we conclude that BNFL is a contractor for purposes of section 821(b) of the NDAA, and that the joint proposal was properly withheld under Exemption 3.

B. Adequacy of the Search

In responding to a request for information under the FOIA, it is well established that an agency must “conduct a search reasonably calculated to uncover all relevant documents.” Truitt v. Department of State, 897 F.2d 540, 542 (D.C. Cir. 1990) (Truitt). “The standard of reasonableness which we apply to agency search procedures does not require absolute exhaustion of files; instead it requires a search reasonably calculated to uncover sought materials.” Miller v. Department of State, 779 F.2d 1378, 1384-85 (8th Cir. 1985); accord Truitt, 897 F.2d at 542. The fact that the results of a search may not meet with the requester’s expectations does not necessarily mean that the search was inadequate. Robert Hale, 25 DOE ¶ 80,101 at 80,501 (1995). Instead, in evaluating the adequacy of a search, our inquiry generally focuses on the scope of the search that was performed. See, e.g., Richard J. Levernier, 25 DOE ¶ 80,102 (1995).

In order to determine the scope of the search, we contacted the Savannah River Office. We were informed that the request was referred to WSRC, and that the DOE Offices of Contract Management, Environmental Quality, and Materials and Facilities were also searched. See memorandum of October 23, 1997 telephone conversation between Mr. Palmer and Pauline Connor, Savannah River Operations Office. In addition, at Ms. McCracken’s request, her inquiry was forwarded to the DOE’s Richland, Washington Operations Office for information concerning BNFL’s activities at other DOE sites. Based on the information before us, we conclude that the search was reasonably calculated to uncover the materials sought, and was therefore adequate.

C. Conclusion

We have found that the Manager properly withheld the joint proposal under Exemption 3, and that the search for responsive documents was adequate. We will therefore deny Ms. McCracken’s Appeal.

It Is Therefore Ordered That:

(1) The Appeal filed by Patricia C. McCracken on October 1, 1997 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 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 located, or in the District of Columbia.

George B. Breznay

Director

Office of Hearings and Appeals

Date: October 30, 1997

(1)1/ Section 821(b) does not, however, “apply to any proposal that is set forth or incorporated by reference in a contract entered into between the agency and the contractor that submitted the proposal.” Id. We have examined the contract between BNFL and WSRC, and we find that the joint proposal is not set forth or incorporated by reference in that contract. Moreover, we have been informed by the Savannah River Operations Office that the proposal is not set forth or incorporated by reference in the contract between WSRC and the DOE. See memorandum of October 27, 1997 telephone conversation between Robert Palmer, OHA Staff Attorney, and Tom Reynolds, Director, Department of Contracts, Savannah River Operations Office.

(2)2/ There was no separate proposal submitted by BNFL to WSRC. See memorandum of October 27, 1997 telephone conversation between Robert Palmer, OHA Staff Attorney, and Tom Reynolds, Director, Department of Contracts, Savannah River Operations Office.