Case No. VFA-0377, 27 DOE ¶ 80,117

March 10, 1998

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner:Dr. Nicolas Dominguez

Date of Filings:February 10, 1998

Case Numbers:VFA-0377

VFA-0378

VFA-0379

On February 10, 1998, Dr. Nicolas Dominguez filed Appeals from three determinations the Authorizing Official of the Oak Ridge Operations Office of the Department of Energy (DOE) issued to him on January 6, 1998. In those determinations, the Authorizing Official partially granted requests for information that Dr. Dominguez filed 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 FOIA requires that a federal agency generally release documents to the public upon request. The FOIA, however, lists nine exemptions that set forth the types of information that a federal agency may withhold at its discretion. 5 U.S.C. § 552(b); 10 C.F.R. § 1004.10(b).

In his October 21, 1997, November 2, 1997 and November 30, 1997 requests for information, Dr. Dominguez sought copies of the following documents:

(1) the monthly reports entitled “CONTRACTOR EMPLOYEE COMPLAINT TRACKING SYSTEM” from January 1995 to October 1997 and for “upcoming” months;

(2) documents concerning interviews Peter Johnson conducted;

(3) documents concerning interviews Patricia Howse-Smith conducted;

(4) a document entitled “Employee Concerns Management System”;

(5) a notebook Lockheed Martin management allegedly prepared and used in a meeting with Dr. Dominguez on July 21, 1997; and

(6) a document with the names of the witnesses from which a “group of peers” of Dr. Dominguez heard testimony on July 21, 1997.

In her determinations, the Authorizing Official released copies of the following documents:

(1) the “CONTRACTOR EMPLOYEE COMPLAINT TRACKING SYSTEM” reports from January 1997 through October 1997;

(2) all records contained in the “Employee Concerns Management System” pertaining to Employee Concern 97-10, including interview notes; and

(3) the DOE Order 5480.29 Employee Concerns Management System and an explanation of the program found in the DOE Oak Ridge Employee Handbook.

The Authorizing Official stated that the “CONTRACTOR EMPLOYEE COMPLAINT TRACKING SYSTEM” reports generated prior to January 1997 no longer exist. Specifically, she stated that the DOE destroys these reports after 18 months, and since the DOE revised the database used to create these reports, she can no longer retrieve reports created prior to January 1997. With regard to the reports for “upcoming” months, the Authorizing Official stated that the DOE cannot provide information that it has not yet generated. Finally, the Authorizing Official stated that no agency records exist regarding the Lockheed Martin notebook or the document alleged to contain names of witnesses.

Dr. Dominguez makes the following arguments in his Appeals:

(1) The Authorizing Official did not provide all of the “CONTRACTOR EMPLOYEE COMPLAINT TRACKING SYSTEM” reports that exist. Specifically, he states that the DOE did not provide reports from March, May and August 1997 and June through December 1996.

(2) Dr. Dominguez reiterates his request for more information from interviews Peter Johnson and Patricia Howes-Smith conducted.

(3) Dr. Dominguez states that David Rupert, the Director of Lockheed Martin’s Oak Ridge Office of Workforce Diversity, informed him that the notebook Lockheed Martin prepared with taxpayer money would be kept permanently in Mr. Rupert’s office.

Analysis

A. Adequacy of the Search

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). In cases such as these, "[t]he issue is not whether any further documents might conceivably exist but rather whether the government's search for responsive documents was adequate." Perry v. Block, 684 F.2d 121, 128 (D.C. Cir. 1982) (emphasis in original).

To determine whether an agency's search was adequate, we must examine its actions 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). Furthermore, the determination of whether a search was reasonable is "dependent upon the circumstances of the case." Founding Church of Scientology v. National Security Agency, 610 F.2d 824, 834 (D.C. Cir. 1979).

In reviewing the Appeal, we contacted the Authorizing Official to ascertain the validity of Dr. Dominguez’s contention that the Authorizing Official did not send him all of the available “CONTRACTOR EMPLOYEE COMPLAINT TRACKING SYSTEM” reports. The Authorizing Official informed us that the DOE generated these reports monthly beginning in June 1997. However, prior to June 1997, the DOE did not issue these reports in every month. For one month, March 1997, a report does not exist because the DOE never generated a report in that particular month. In another report, the DOE combined two months, May and June 1997, into a single report. Furthermore, the Authorizing Official confirmed that the DOE sent to Dr. Dominguez all of the reports in existence at the time of his request. Additionally, the Authorizing Official stated that the data in the reports the DOE provided to Dr. Dominguez include data for the time beginning January 4, 1996 to the date of each particular report. However, as stated above, reports created prior to January 1997 no longer exist. Thus, the Authorizing Official stated that the DOE provided to Dr. Dominguez a complete set of data from the “CONTRACTOR EMPLOYEE COMPLAINT TRACKING SYSTEM.” Since Dr. Dominguez states that he did not receive reports for May 1997 and August 1997, we will require the DOE to provide Dr. Dominguez with new copies of the May/June 1997 and August 1997 “CONTRACTOR EMPLOYEE COMPLAINT TRACKING SYSTEM” reports.

With regard to the documents concerning interviews Peter Johnson and Patricia Howse-Smith conducted, the Authorizing Official stated that she inspected every document in the employee concerns investigation file. This employee concerns investigation file duplicates files located in the offices of Rufus Smith, Patricia Howse-Smith, and Patricia Taylor (the FOIA contact who gathered information from Peter Johnson), and she confirmed from this search that the DOE does not have any additional responsive documents. However, the Authorizing Official stated that due to an oversight, the DOE did not release a document responsive to Dr. Dominguez’s request. The DOE has agreed to provide Dr. Dominguez a copy of the “Employee Concerns Management System” guide.

B. Agency Records

Dr. Dominguez contends that the notebook Lockheed Martin prepared is an “agency record” because the Director of the Oak Ridge Office of the Workforce Diversity, David R. Rupert, told him that the notebook would be kept permanently at Oak Ridge. The Authorizing Official has confirmed that Mr. Rupert is an employee of the DOE contractor, Lockheed Martin Energy Research Corporation, and that Mr. Rupert compiled the notebook for use in an internal employee matter between Lockheed Martin and its employee, Dr. Dominguez.

Our threshold inquiry in this case is whether the notebook and witness list 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 Lockheed Martin, 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, Lockheed Martin is the contractor responsible for maintaining and operating the Oak Ridge Operations Office. While the DOE obtained Lockheed Martin’s services and exercises general control over the contract work, it does not supervise Lockheed Martin’s day-to-day operations. See Contract No. DE-AC05-960R22464. We therefore conclude that Lockheed Martin is not an "agency" subject to the FOIA.

Although Lockheed Martin is not an agency for the purposes of the FOIA, its records relevant to Mr. Dominguez’s request could become "agency records" if DOE obtained them and they were within the DOE's control at the time Dr. Dominguez made his 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 the notebook and list of witnesses Dr. Dominguez seeks were not in the agency's control at the time of the appellant's request.(1) Based on these facts, these 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 Lockheed Martin to determine the status of the requested records. That contract generally states,

Except as is provided in paragraph (b) of this clause, all records acquired or generated by the Contractor in its performance of this contract shall be the property of the Government . . .

Contract No. DE-AC05-960R22464, Section H.22 (a). Paragraph (b)(4) of the ownership of records section of the contract states that the excluded category of Contractor's records includes “Employee relations records and files . . . pertaining to . . . [i]nternal complaints, grievance records, . . . [a]rbitration proceedings, . . . [a]llegations, investigations and resolution of employee misconduct . . . .” Since the notebook and document alleged to contain names of witnesses that Dr. Dominguez requests are records the contract states are Contractor records, 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 this portion of Dr. Dominguez’s Appeal.

It Is Therefore Ordered That:

(1) The Appeal Dr. Nicolas Dominguez filed on February 10, 1998, Case No. VFA-0377, is hereby granted as set forth in paragraph (2) below, and is denied in all other respects.

(2) This matter is hereby remanded to the Authorizing Official of the Oak Ridge Operations Office of the Department of Energy, who will release copies of the May/June 1997 and August 1997 “CONTRACTOR EMPLOYEE COMPLAINT TRACKING SYSTEM” reports or provide a detailed explanation for withholding.

(3) The Appeals Dr. Nicolas Dominguez filed on February 10, 1998, Case Nos. VFA-0378 and VFA- 0379, are hereby denied.

(4) This is a final Order of the Department of Energy of 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 either in the district where 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 10, 1998

(1)See March 4, 1998 Record of Telephone Conversation between Amy Rothrock, DOE Oak Ridge, and Leonard M. Tao, OHA Staff Attorney.