Case No. VFA-0403, 27 DOE ¶ 80136

May 4, 1998

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner:Air-Con, Inc.

Date of Filing: April 7, 1998

Case Number: VFA-0403

On April 7, 1998, Air-Con, Inc., the Appellant, filed an Appeal from a final determination that the Idaho Operations Office (IO) of the Department of Energy (DOE) issued on March 17, 1998. In its determination, IO informed the Appellant that it could not locate documents responsive to a request for information that the Appellant 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.

BACKGROUND

Because this Appeal involves a FOIA request for documents regarding a contract dispute between contractors at the Idaho National Engineering and Environmental Laboratory (INEEL), a DOE facility, a brief description of the entities involved in the dispute is given below. DOE contracted with Lockheed Martin Idaho Technologies Companies (LMITCO) to be the management and operations contractor for the INEEL facility. LMITCO subsequently contracted with Lockheed Martin Advanced Environmental Systems (LMAES) to construct remediation facilities and to environmentally remediate the Pit 9 area at INEEL. LMAES subsequently contracted with Kiewit Construction Co. (Kiewit) for construction of remediation facilities for Pit 9. Appellant then became a sub-contractor for Kiewit for the Pit 9 remediation facilities. Subsequently, LMAES terminated the contract with Kiewit for the Pit 9 remediation facilities. Kiewit then terminated its contract with the Appellant. After negotiations, Kiewit entered into a global settlement with LMAES for its claims regarding the termination of the contract as well as the claims of all of Kiewit's subcontractors, including the Appellant.

In a letter dated February 18, 1998 (Request), the Appellant submitted a FOIA Request to IO for all documents containing information regarding the contract termination settlement between LMAES and Kiewit. IO informed the Appellant in its March 17, 1998 determination letter (Determination Letter) that neither it nor LMITCO possessed documents responsive to the Request. Enclosed with the Determination letter was a copy of a letter from LMITCO to LMAES informing LMAES that LMITCO would not attend meetings regarding the termination costs of various LMAES

subcontractors and suppliers. In its Appeal, the Appellant challenges the adequacy of IO's search for responsive documents.

ANALYSIS

The FOIA requires that federal agencies generally release documents to the public upon request. 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., Eugene Maples, 23 DOE ¶ 80,106 (1993). 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). Consequently, the determination of whether a search was reasonable is "dependent upon the circumstances of the case." Founding Church of Scientology v. NSA, 610 F.2d 824, 834 (D.C. Cir. 1979).

We contacted the FOIA Officer at IO to inquire as to the nature of its search for responsive documents. See Memorandum of telephone conversation between Carl Robertson, FOIA Officer, IO and Richard Cronin, OHA Staff Attorney (April 13, 1998). He informed us that IO contacted various IO contracting officials and none had any knowledge regarding the existence of responsive documents. He then contacted LMITCO which subsequently conducted a search of its offices. LMITCO informed the FOIA Officer that it had no responsive documents and that LMAES alone conducted the settlement negotiations with Kiewit. While the FOIA Officer believes that LMAES likely possesses responsive documents, he also believes that any documents LMAES possesses are not agency records subject to the FOIA.

In reviewing the adequacy of IO's search, we must now consider whether responsive documents which might be possessed by LMAES are "agency records," and thus subject to the FOIA, under the criteria set out by the federal courts. (1) In addition, 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 any responsive documents that LMAES possesses 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 the courts have fashioned for determining whether documents created by non-federal organizations, such as LMAES, are subject to the FOIA. See, e.g., Los Alamos Study Group, 26 DOE ¶ 80,212 (1997) (LASG). 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 LASG, 26 DOE at 80,841.

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). In making the determination whether an entity is an agency for purposes of the FOIA, the Supreme Court has held that an entity will not be considered a federal agency for purposes of the FOIA unless its operations are subject to "extensive, detailed, and virtually day-to-day supervision." Forsham v. Harris, 445 U.S. 169, 180 & n. 11 (1980) (citing United States v. Orleans, 425 U.S. 807 (1976)). In the present case, the DOE has no contractual relationship with LMAES. Further, the DOE does not supervise LMAES's day-to-day operations. We therefore conclude that LMAES is not an "agency" subject to the FOIA.

Although LMAES is not an agency for the purposes of the FOIA, its records relevant to the Appellant's request could become "agency records" if DOE obtained them and they were within the DOE's control at the time the Appellant made its FOIA request. Department of Justice v. Tax Analysts, 492 U.S. 136, 144-46 (1989). In this case, none of the potentially responsive documents was in the DOE's control or possession at the time of the Appellant's request. Based on these facts, the 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.

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). However, in the present case, the DOE does not have a contractual relationship with LMAES. Consequently, this regulatory provision would not apply to any responsive documents LMAES might possess.

Given the facts described above, we believe that IO's search was reasonably calculated to discover responsive documents. IO searched its offices and LMITCO's offices and did not locate responsive documents. While LMAES might possess responsive documents, such documents are not subject to the FOIA or to the DOE policy on contractor records described in 10 C.F.R. § 1004.3(e)(1). Because we find that IO's search was adequate, the Appellant's submission will be denied.

It Is Therefore Ordered That:

(1) The Appeal filed by Air-Con, Inc. on April 7, 1998, Case No. VFA-0403, is hereby denied.

(2) 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: May 4, 1998

(1)For the purposes of this analysis, we will assume that LMAES possesses settlement documents responsive to the Appellant's Request.