Case No. VFA-0436, 27 DOE ¶ 80,161

September 3, 1998

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: William Payne

Date of Filings: August 6, 1998

Case Numbers: VFA-0436

On August 6, 1998, William Payne (Payne) filed an Appeal with the Office of Hearings and Appeals (OHA) of the Department of Energy (DOE) in response to a determination that DOE’s Albuquerque Operations Office (DOE/AL) issued to him on March 30, 1998. The determination concerned a request for information that Payne submitted pursuant to 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 result in the release of any existing responsive material to Payne.

I. Background

On February 17, 1998, Payne filed a FOIA request with DOE/AL requesting access to:

1. All purchase requisitions, including any attached statement of work, issued by Sandia National Laboratories, Los Alamos National Laboratories, or DOE/AL between January 1, 1991 and February 17, 1998 to RSA Inc.
2. Copies of all invoices from RSA Inc. received by Sandia National Laboratories, Los Alamos National Laboratories, or DOE/AL between January 1, 1991 and February 17, 1998.

Letter from Payne to Elva Barfield, DOE/AL (February 17, 1998). DOE/AL, the Kirtland Area Office (oversight for Sandia National Laboratories (SNL)), and the Los Alamos Area Office (oversight for Los Alamos National Laboratories (LANL)) each conducted a search, but found no DOE records that were responsive to Payne’s request. DOE/AL then supplied Payne with the names and addresses of individuals at SNL and LANL to contact regarding the existence of information responsive to his request. Letter from Elva Barfield, DOE/AL to Payne (March 30, 1998). On May

15, 1998, Payne sent an electronic mail message to the Secretary of Energy appealing AL’s determination. Payne filed the present Appeal with OHA on August 6, 1998. In this Appeal, Payne asserts that the requested information should be considered agency records if DOE is properly managing its contractor relationships.

II. Analysis

Our threshold inquiry in this case is whether the material requested can be considered “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 SNL and LANL, 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.

A. SNL and LANL Are Not Agencies Under the FOIA

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 Corporation, through its wholly- owned subsidiary the Sandia Corporation, is the contractor responsible for maintaining and operating SNL. See Hellen Ruth Sutton-Pank, 25 DOE ¶ 80,178 (1996) (Sutton-Pank); William Kuntz, III, 25 DOE ¶ 80,157 (1995). Under a similar contractual relationship with the DOE, the University of California (UC) is the contractor responsible for maintaining and operating LANL. See Los Alamos Study Group, 26 DOE ¶ 80,212 (1997) (LASG). While the DOE obtained both organizations’ services and exercises general control over the contract work, it does not supervise the day-to-day operations of either UC or Lockheed Martin Corporation. We therefore conclude that neither SNL or LANL can be considered an “agency” subject to the FOIA.

B. The Records Were Not Within DOE’s Control At The Time Of Request

Although SNL and LANL are not agencies for the purposes of the FOIA, their records relevant to Payne’s request could become “agency records” if DOE obtained them and they were within the DOE’s control at the time Payne made his FOIA request. Department of Justice v. Tax Analysts, 492 U.S. 136, 144-46 (1989); see Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136 (1980); Forsham, 445 U.S. at 182. In this case, DOE/AL has informed us that the information that Payne seeks was not in the agency’s control at the time of the appellant’s request. See Electronic Mail Message from E. Barfield, DOE/AL to W. Schwartz, OHA (August 12, 1998). 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.

C. The Contracts Provide That Procurement Records Are Contractor Property

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 they are 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 next look to the contracts between DOE and the two laboratories to determine the status of the requested records. Both contracts provide that all records “acquired or generated” by the contractor in its performance of the contract shall be the property of DOE except “records related to any procurement action by the [contractor].” Contract DE-AC04-94AL85000, Modification No. M009, Clause 10(a) (SNL); Contract No. W-7405-ENG-36, Paragraph b(8) (LANL). See also LASG, 26 DOE at 80,842; Sutton-Pank, 25 DOE at 80,694. Because the documents at issue are related to procurement actions of SNL and LANL, we find that the requested records are not agency records and thus not subject to release under DOE regulations.

It Is Therefore Ordered That:

(1) The Appeal filed on August 6, 1998 by William Payne, OHA Case No. VFA-0436, 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 the provisions of 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 situated, or in the District of Columbia.

George B. Breznay

Director

Office of Hearings and Appeals

Date: September 3, 1998