Case No. VFA-0348, 27 DOE ¶ 80,103

January 9, 1998

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Patricia C. McCracken

Date of Filing: December 9, 1997

Case Number: VFA-0348

This Decision and Order concerns an Appeal that Patricia C. McCracken filed from a determination issued by the Department of Energy’s (DOE) Richland Operations Office (Richland). The Richland issued this determination in response to a request for information that 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 Richland to release certain documents to McCracken.

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 awarded by the DOE to BNFL, Inc. for the Tank Waste Remediation Systems Project, and a copy of BNFL’s winning proposal. In her response, the Director stated that the contract was available for public viewing and reproduction at the Richland Public Reading Room and on the Internet at the following website: http://twins.pnl.gov:8001twrs_rfp/contract.htm. However, Richland withheld BNFL’s proposal in its entirety under Exemption 3 of the FOIA. 5 U.S.C. § 552(b)(3). In so doing, it 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, McCracken contends that the Director improperly applied Exemption 3 in withholding the proposal. In addition, she requests access to additional information under the FOIA. Specifically, she requests documents setting forth the job descriptions or qualifications of the “person ... or persons who have made the determination” in this Appeal. She also seeks copies of all checks issued by the DOE to BNFL, a “running total” of the funds disbursed, and the numbers of the contracts under which each of the checks was issued.

II. Analysis

Exemption 3 of the FOIA allows agencies to withhold requested 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.

In a Decision and Order previously issued to McCracken, we found that the recently enacted NDAA is a statute of exemption for purposes of 5 U.S.C § 552(b)(3). Patricia C. McCracken, 26 DOE ¶ _____ (Case No. VFA-0337, October 30, 1997). Citing Chemical Weapons Working Group Inc., 26 DOE ¶ 80,170 at 80,730 (1997), we stated that the NDAA is a federal statute that contains language specifically prohibiting agencies from releasing contractor proposals under the FOIA. 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 found that since the NDAA allows agencies no discretion in withholding certain types of information, it satisfies the first criterion of Exemption 3. 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 Director 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 BNFL’s proposal was submitted in response to a solicitation for a competitive proposal, and that section 821(b) is therefore applicable. Accordingly, the Manager properly withheld that document under Exemption 3.

In her Appeal, Ms. McCracken contends that segregable portions of the proposal exist that could be released without compromising any significant national interests. Indeed, the FOIA requires that “[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection.” 5 U.S.C. § 552(b). See, e.g., Greenpeace, 26 DOE ¶ 80,106 (1996). However, this provision is inapplicable here, since the proposal is exempt in its entirety from mandatory release under the FOIA. In enacting section 821(b) of the NDAA, Congress clearly intended to prohibit release under the FOIA of any part of proposals submitted in response to solicitations for competitive proposals. We therefore reject Ms. McCracken’s claim that segregable portions of the proposal exist that should be released.

Finally, we note that Ms. McCracken's Appeal includes a request for information that she did not seek in her original FOIA request. We have consistently held that FOIA appellants may not broaden the scope of their requests for information on appeal. See, e.g., Energy Research Foundation, 22 DOE ¶ 80,114 at 80,529-30 (1992); Cox Newspapers, 22 DOE ¶ 80,106 at 80,512 (1992). Consequently, Ms. McCracken's request for information concerning the qualifications of DOE personnel and any disbursements of funds to BNFL is dismissed. Ms. McCracken may refile this request with the Acting Director, FOI and Privacy Acts Division, Office of the Executive Secretariat. For the reasons set forth above, Ms. McCracken’s Appeal should be denied.

It Is Therefore Ordered That:

(1) The Appeal filed by Patricia C. McCracken on December 9, 1997, Case No. VFA-0348, 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: January 9, 1998

(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 the DOE, and we find that the proposal is not set forth or incorporated by reference in that contract.