Case No. VFA-0386, 27 DOE ¶ 80,123

April 2, 1998

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner:Dr. Nicolas Dominguez

Date of Filings:March 5, 1998

Case Numbers:VFA-0386

VFA-0387

VFA-0388

VFA-0389

On March 5, 1998, Dr. Nicolas Dominguez filed Appeals from four determinations the Authorizing Official of the Oak Ridge Operations Office (ORO) of the Department of Energy (DOE) issued to him on February 19, 1998. In those determinations, the Authorizing Official denied 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 four February 11, 1998 requests for information, Dr. Dominguez sought copies of the following documents:

(1) a January 20, 1996 memo from Dr. Robert I. Van Hook, president of LMERC, to Dr. Dominguez (Case No. VFA-0387);

(2) an October 30, 1995 memo from Dr. Van Hook to Dr. Dominguez (Case No. VFA-0389);

(3) the written description for Dr. Dominguez’ job as listed in a response to the Tennessee Human Rights Commission from Lockheed Martin Energy Research Corporation (LMERC), his employer (Case No. VFA-0386);

(4) documents concerning an LMERC “group of peers” to which Dr. Dominguez gave testimony on July 21, 1997.(1) The particular information sought regarding the “peers” was their full names, their titles and positions as of July 21, 1997, their current titles and positions, and their companies and divisions as of July 21, 1997 (Case No. VFA-0388).

The Authorizing Official stated that no agency records exist regarding any of these requests since LMERC owned each of the requested records and her search had not extended to the files of LMERC. Therefore, she denied the four requests. Dr. Dominguez responds that each of these LMERC documents was created using taxpayers’ funds, and thus should be releasable under the FOIA.

Analysis

Our threshold inquiry in this case is whether any of 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). Contrary to Dr. Dominguez’ unsupported assertion, not all taxpayer-funded records are subject to release under the FOIA. For the reasons set forth below, we conclude that responsive “agency records” exist at ORO and that other portions of the requested records may be 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 LMERC, 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- 96.

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) (Orleans), 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, LMERC is the contractor responsible for maintaining and operating the Oak Ridge Operations Office. While the DOE obtained LMERC’s services and exercises general control over the contract work, it does not supervise LMERC’s day-to-day operations. See Contract No. DE-AC05-960R22464. We therefore conclude that LMERC is not an "agency" subject to the FOIA. See Sheet Metal Workers’ International Association, 26 DOE ¶ 80,166 (1997).

Although LMERC is not an agency for the purposes of the FOIA, its records that are relevant to Dr. Dominguez’ request could be considered "agency records" if the DOE obtained them and they were within the DOE's control at the time Dr. Dominguez made his FOIA requests. Department of Justice v. Tax Analysts, 492 U.S. 136, 144-46 (1989) (Tax Analysts); 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, with one exception, none of the records Dr. Dominguez seeks was in the agency's control at the time of his requests.(2) See March 9, 1998 Record of Telephone Conversation between Amy Rothrock and Dawn L. Goldstein. 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 the DOE provides that any records acquired or generated by the contractor in its performance of the contract shall be the property of the Government, the 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).(3) We therefore next look to the contract between the DOE and LMERC 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). Therefore, unless each of the requested items reasonably falls within the excluded categories of documents described in Paragraph (b), they will be considered the property of the DOE and potentially releasable under 10 C.F.R. § 1004.3(e). We next examine those issues.

A. The Memos From Dr. Van Hook

Two of the requested items, the memos from Dr. Van Hook to Dr. Dominguez, fall within Paragraph (b)(4) of the ownership of records section of the contract. That provision excludes from government ownership the following items: “Employee relations records and files . . . pertaining to . . . [i]nternal complaints, grievance records, . . . [a]rbitration proceedings, . . . [a]llegations, investigations and resolution of employee misconduct, . . . [e]mployee discipline. . . [and] employee charges of discrimination . . . .” Since the memos are related to employment discrimination litigation between Dr. Dominguez and LMERC, Paragraph (b)(4) clearly applies. Moreover, these two memos are located only in LMERC’s employee relations files. See March 19, 1998 Record of Telephone Conversation between Amy Rothrock and Dawn L. Goldstein. Accordingly, because LMERC owns the two memos, we find that the two memos are neither "agency records" within the meaning of the FOIA nor subject to release under the DOE regulations. Accordingly, we must deny the two Appeals concerning those memos, Case Nos. VFA-0387 and VFA-0389.

B. Dr. Dominguez’ Job Description

According to LMERC, the job description falls within Paragraphs (b)(4)(i), (b)(4)(ii), (b)(4)(v) and (b)(5) of the contract. See March 12, 1998 Letter from Robert M. Stivers, Jr., Associate General Counsel, Lockheed Martin Energy Systems, Inc., to Amy Rothrock. Additionally, ORO believes that the job description falls within Paragraph (b)(6) of the contract. See March 10, 1998 Record of Telephone Conversation between Amy Rothrock and Dawn L. Goldstein. For the following reasons, we conclude that these records do not fall within any of the provisions of the contract delineating contractor-owned records.

First, Paragraph (b)(4)(i) refers to “[e]mployee relations records and files such as records and files pertaining to [q]ualifications or suitability for employment of any employee, applicant or former employee.” LMERC argues that the job description is used in evaluating an applicant’s suitability for a job or promotion as well as announcing job openings. However, we do not think it is reasonable to read the phrase “pertaining to” as broadly as LMERC does. Instead, we find that Paragraph (b)(4)(i) is referring to the unique qualifications of specific individuals, not the type of general information exemplified by a job description.

Second, Paragraph (b)(5) relates to “[r]ecords and files pertaining to wages, salaries and benefits and wage and salary benefit administration.” Although LMERC argues that it uses job descriptions to evaluate salaries and raises, we again believe this is not a reasonable reading and stretches Paragraph (b)(5) beyond its clear meaning. The paragraph is directed at financial data compiled on the amount of money and other benefits paid to each employee. To accept LMERC’s definition would mean that any project an employee worked on could “pertain” to salary if that project led to a raise or demotion. We therefore cannot find that the meaning of “wages, salaries and benefits” encompasses LMERC’s job descriptions.

Third, Paragraph (b)(6) covers “[p]rivileged or confidential Contractor financial information and correspondence between the Contractor, its financial institutions or other business segments of Contractor or its parent corporations . . . .” We believe that Paragraph (b)(6) does not apply to a job description. A job description is not related to financial information and correspondence.

Fourth, we acknowledge that LMERC has placed a copy of Dr. Dominguez’ job description in the internal complaints, grievance records and employee discipline records mentioned in Paragraphs (b)(4)(ii) and (b)(4)(v) of the contract. However, the job description sought by Dr. Dominguez (and all other LMERC job descriptions) are also kept on file in the Personnel Office of LMERC. This file contains general information about types of jobs, and as discussed above, we find that it is unreasonable to conclude that this job description falls within any of the categories listed in Paragraph H.22(b) as records belonging to the contractor.

Since we conclude that the job description falls within Paragraph H.22(a) as a record that was “acquired or generated by the Contractor in its performance of this contract,” we believe that it is the property of the Government.(4) Thus, according to the last part of 10 C.F.R. § 1004.3(e)(1), unless the records are exempt from disclosure under 5 U.S.C. § 552(b), ORO must release the job description. Accordingly, we must remand Case No. VFA-0386 in order that ORO may either release the job description or issue a new determination to Dr. Dominguez explaining which FOIA exemption or exemptions are applicable to the material.

C. The “Group of Peers” Information

Dr. Dominguez requested the following information regarding the “group of peers” which heard testimony concerning his termination from LMERC:

(1) the names of the company and division within the company for each group member as of July 21, 1997;

(2) their full names; (5)

(3) their titles and positions as of July 21, 1997; and

(4) their current titles and positions.

1. The Companies and Divisions of the “Group of Peers”

ORO initially asserted that all of the requested “group of peers” information was withholdable because this material belonged to the contractor under Paragraph (b)(4) of the LMERC contract (which relates to employee concerns records), as well as Paragraph (b)(1) (which covers personnel files maintained on individual employees). Upon our inquiry, however, we learned that Ms. Rothrock was unaware that Dr. Dominguez had supplied with his FOIA request the names of the peers included in the “group of peers.” See March 10 and 11, 1998 Records of Telephone Conversations between Amy Rothrock and Dawn L. Goldstein; March 11, 1998 electronic mail message from Amy Rothrock to Dawn L. Goldstein. The company and division of each LMERC employee is listed in the September 1997 phone book containing ORO and LMERC employees, which is located in the ORO reading room. Id.; March 24, 1998 Record of Telephone Conversation between Amy Rothrock and Dawn L. Goldstein. Ms. Rothrock explained that since she now knows the peers’ names, it is possible to release their companies and divisions. Therefore, she agreed to release copies of the relevant pages of the phone book showing the peers’ companies and divisions. March 11, 1998 electronic mail message from Amy Rothrock to Dawn L. Goldstein.(6)

2. The Titles and Positions of the “Group of Peers”

According to ORO, because the peers’ titles and positions are located within their personnel files, this information is not subject to release under DOE regulations. However, this argument fails to take account of the fact that other documents located at LMERC also contain the peers’ titles and positions. According to ORO, it is in fact likely that the positions and titles of these five people are located in substantive documents owned by the DOE but possessed by LMERC. ORO also informed us that this information should be readily accessible. See March 17, 1998 Record of Meeting between Amy Rothrock and Dawn L. Goldstein. We must therefore remand this aspect of Case No. VFA-0388 in order that ORO may conduct a search for responsive DOE-owned records that are in the possession of LMERC and therefore subject to 10 C.F.R. § 1004.3(e). Responsive records would contain the current positions and titles and the July 1997 position and titles of the five people Dr. Dominguez named. If ORO locates responsive documents, it should either release them or issue a new determination to Dr. Dominguez explaining which FOIA exemption or exemptions are applicable to the material.

Conclusion

Thus, we are remanding Case No. VFA-0386 in order that ORO may either release Dr. Dominguez’ job description or issue a new determination explaining which FOIA exemption or exemptions are applicable to the material. We are also remanding Case No. VFA-0388 in order that it may release the following items or issue a new determination explaining otherwise: the phone book pages containing the peers’ companies and divisions; the responsive DOE-owned records possessed by LMERC containing the peers’ titles and divisions both currently and as of July 1997; and the responsive agency records containing the full names of the “group of peers.”

It Is Therefore Ordered That:

(1) The Appeals filed by Dr. Nicolas Dominguez on March 5, 1998, Case Nos. VFA-0387 and VFA-0389, are hereby denied.

(2) The Appeals filed by Dr. Nicolas Dominguez on March 5, 1998, Case Nos. VFA-0386 and VFA- 0388, are hereby granted to the extent set forth in paragraph (3) below and are denied in all other respects.

(3) Case Nos. VFA-0386 and VFA-0388 are hereby remanded to the Oak Ridge Operations Office, which shall promptly issue new determinations in accordance with the guidance set forth in the above Decision.

(4) 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 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: April 2, 1998

(1)1/ The “group of peers” heard testimony from Dr. Dominguez and others regarding his termination from LMERC and the reasons for that termination.

(2)2/ ORO informed us that it possesses documents listing the full names of the “group of peers” in records such as health records and personnel security records. See Record of Telephone Conversation between Amy Rothrock, FOIA Officer, ORO, and Dawn L. Goldstein, Staff Attorney, OHA (March 24, 1998). These records are responsive to Dr. Dominguez’ request and therefore we must remand this aspect of Case No. VFA-0388 in order that ORO may either release the responsive records or issue a new determination to Dr. Dominguez explaining which FOIA exemption or exemptions are applicable to the material.

(3)3/ The regulation actually provides that the records must be exempt under 5 U.S.C. 552(b)(2). However, for several reasons, this Office has traditionally considered the restriction to Exemption 2 a typographical error and therefore read the provision as excluding all records covered by the FOIA exemptions. See, e.g., Los Alamos Study Group, 26 DOE ¶ 80,234 at 80,895 n. 3 (1997). First, it is our understanding that the DOE meant to exclude from this provision all records that are exempt under the FOIA, not just under Exemption 2. Second, Exemption 2 is little used, as compared with other FOIA exemptions, and it would be nonsensical to include this as the only exemption worth protecting in the DOE contractor records scheme. Last, our conclusion is further bolstered by the fact that 10 C.F.R. § 1004.3(e)(2) refers to 5 U.S.C. 552(b), as we believe Section 1004.3(e)(1) should have done. Accordingly, this Office reads 10 C.F.R. 1004.3(e)(1) as exempting all records covered by 5 U.S.C. 552(b).

(4)4/ Ms. Rothrock of ORO believes that the job description might have originated at Lockheed Martin Corporation’s headquarters. See March 10, 1998 Record of Telephone Conversation between Amy Rothrock and Dawn L. Goldstein. Even if this document did originate at the parent company of LMERC, Paragraph H.22(a) refers to all records LMERC acquired in its performance of this contract. Clearly, LMERC’s use of Dr. Dominguez’ job description in the course of its contract with the DOE would fall under H.22(a).

(5)5/ As explained above, because ORO possesses responsive agency records on this topic, we are remanding this aspect of Case No. VFA-0388.

(6)6/ We note that because this phone book is located in the ORO reading room as well as being placed online on the DOE web page, ORO would be entitled to direct Dr. Dominguez to locate this information in either of those places, rather than releasing this information to him in response to his FOIA request. See 5 U.S.C. § 552(a)(2). However, in the interests of being customer-friendly, ORO has chosen to release those pages to him.