Case No. VFA-0450, 27 DOE ¶ 80,169

November 10, 1998

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner:Frank E. Isbill

Date of Filing: October 14, 1998

Case Number: VFA-0450

On October 14, 1998, Frank E. Isbill, the Appellant, filed an Appeal from a final determination that the Oak Ridge Operations Office (OR) of the Department of Energy (DOE) issued on September 11, 1998. In its determination, OR granted in part 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

In a letter dated June 9, 1998 (Request), the Appellant submitted a FOIA Request to DOE Headquarters (DOE/HQ) in Washington, D.C., for the following five categories of documents:

1. Records pertaining to the Appellant’s complaint to the DOE’s Office of Inspector General (OIG) about fraud and mismanagement at the DOE’s Office of Scientific and Technical Information (OSTI) at Oak Ridge, Tennessee, including all information located at Oak Ridge and Washington, D.C. Also requested was information located at the DOE’s Office of Employee Concerns at both locations and documents in the files of NCI Information Systems (NCI) at its Oak Ridge and Washington, DC, offices. The Appellant specifically named eight DOE employees and two NCI employees as individuals who might possess responsive documents.
2. Records pertaining to the handling of complaints of fraud, mismanagement and reprisals at OSTI from the Office of the Director of OSTI and the Office of the Secretary of Energy.
3. Copies of memoranda, directives, electronic messages (e-mail) and all other records with regard to the Appellant’s performance, veteran status, promotions or salary from the files of DOE, NCI or Labat Incorporated (Labat).(1)
4. Copies of memoranda, directives, electronic messages (e-mail) and all other records from the files of OSTI or the Office of Personnel at OR with regard to the Appellant’s application for employment by the DOE.
5. Copies of memoranda, directives, electronic messages (e-mail) and all other records from the files of OSTI or the Office of Personnel at OR with regard to any applications for employment by Labat or NCI personnel for employment by the DOE.

DOE/HQ forwarded the Appellant’s request to OR for a determination regarding documents held at OR. (2) OR, in a September 11, 1998 determination letter, released a number of documents to the Appellant. (3)

In his Appeal, the Appellant challenges the extent of the search which was conducted for responsive documents. Specifically, the Appellant claims that, based upon the documents provided to him, OR failed to search records at OSTI and that OR did not provide any documents responsive to categories 1 and 2 of his Request.

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). In the present case, to evaluate the adequacy of OR’s search, we must review two issues: the reasonableness of OR’s search and the correctness of OR’s determination that responsive records, if any, possessed by Labat and NCI are not agency records.

We contacted the officials at OR and OSTI to inquire as to the nature of their search for responsive documents at OR and at OSTI. See Memorandum of telephone conversation between Linda Chapman, OR and Richard Cronin, OHA Staff Attorney (October 21, 1998); Memorandum of telephone conversation between Lowell Langford, OSTI, and Richard Cronin, OHA Staff Attorney (October 21, 1998). The OR official informed us that OR searched in the offices most likely to contain responsive documents, specifically OR’s personnel office, Personnel Clearance and Assurance Branch offices, the Office of Diversity Programs and Employee Concerns and the office of OR’s Evaluation and Control Division. All responsive documents that were located were provided to the Appellant.

OSTI conducted a search of the files at its Resource Management Office, which is the personnel office at OSTI. Additionally, a search was made for responsive documents by searching for documents in the Office of the Director of OSTI, Walter Warnick, as well as in the offices of Chuck Morgan, Ken Williams and Brian Hitson, all of whom were named in the Appellant’s Request. Mr. Hitson then inquired of the remaining DOE employees named in the Appellant’s Request to determine if they were in possession of responsive documents. All responsive documents that were located were then provided to the Appellant.

From the above facts, it appears that OR conducted a search reasonably calculated to find responsive documents in its possession. All the OR and OSTI offices that were thought to possess responsive documents were searched and officials at OR and OSTI made inquires to each of the DOE personnel named in the Appellant’s Request.

To complete our review of the adequacy of the search made for responsive documents, we must now consider whether responsive documents that might be possessed by NCI or Labat are "agency records" under the criteria set out by the federal courts and whether records that do not meet these criteria are nonetheless subject to release under the DOE regulations. (4)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 NCI and Labat possess 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 NCI or Labat, are subject to the FOIA. See, e.g., Air-Con, Inc., 27 DOE ¶ 80,136 (1998) (Air-Con). 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 Air-Con, 27 DOE at 80,582.

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 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, DOE did not supervise Labat’s day-to-day operations during its contractual relationship with Labat. We therefore conclude that Labat is not an "agency" subject to the FOIA. With regard to NCI, DOE does not supervise NCI’s day-to-day operations. Consequently, we find that NCI is not an “agency” subject to the FOIA.

Although neither NCI or Labat is an agency for the purposes of the FOIA, their 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, any responsive documents possessed by NCI or Labat 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. 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). There was no DOE records ownership provision in the DOE-Labat contract. However, the DOE-NCI contract contains the following provisions regarding record ownership:

H 19. Ownership of Records

(a) Government Records. Except as provided in (b) below, all records generated under this contract shall be the property of the Government . . .

(b) Contractor’s Records. The following records are the property of the Contractor and not within the scope of Paragraph (a) above:

(1) Personnel records and files maintained on individual employees and applicants;

. . . .

(4) Employee relations records and files such as records and files pertaining to:

(i) Qualifications or suitability for employment of any employee, applicant or former employee;

(ii) Allegations, investigation, and resolution of employee misconduct;

(iii) Employee discipline;

(iv) Employee charges of discrimination;

. . . .

(5) Records and files pertaining to wages, salaries, and benefits and wage, salary, and benefit administration. . . .

Section H 19, DOE Contract No. DE-AC05-95MA40110. The types of records requested by the Appellant in his Request are defined by Section H 19 of the DOE-NCI contract as belonging to NCI. Consequently, the DOE policy on contractor records described by 10 C.F.R. § 1004.3(e)(1) does not mandate release of such documents to the public.

To summarize, we believe that OR’s search was reasonably calculated to discover responsive documents. OSTI and OR searched the offices that were believed most likely to possess responsive documents. Additionally, each of the DOE employees named in the Request were contacted to discover if they had responsive documents. All discovered responsive documents were disclosed to the Appellant. While NCI or Labat (or the two named NCI employees) 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 OR's search was adequate, the Appellant's submission will be denied.

It Is Therefore Ordered That:

(1) The Appeal filed by Frank E. Isbill on October 14, 1998, Case No. VFA-0450, 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: November 10, 1998

(1)NCI is the contractor which provides support services for OSTI. Labat was the predecessor contractor to NCI. The Appellant was employed by both firms at OSTI.

(2)We have been informed that DOE/HQ and OIG will issue a separate determinations regarding whether they possess any responsive documents, including any documents discovered in OIG offices at Oak Ridge. See Memorandum of telephone conversation between Tanya Woods, HQ, and Richard Cronin, OHA Staff Attorney (October 26, 1998).

(3)Portions of some documents were withheld pursuant to Exemption 6 of the FOIA. Exemption 6 protects contents of personnel, medical and similar files. See 5 U.S.C. § 552(b)(6); 10 C.F.R. § 1004.10(b)(6). The Appellant does not challenge OR’s determination regarding the material withheld pursuant to Exemption 6.

(4)For the purposes of this analysis, we will assume that NCI and Labat possess documents responsive to the Appellant's Request.