Case No. VFA-0474, 27 DOE ¶ 80,190

March 3, 1999

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Louthian & Louthian

Date of Filings: February 2, 1999

Case Numbers: VFA-0474

On February 2, 1999, the law firm of Louthian & Louthian (Louthian) 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 Savannah River Operations Office (SR) issued to Louthian on January 25, 1999. The determination concerned a request for information that Louthian submitted pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by DOE in 10 C.F.R. Part 1004. The Appeal, if granted, would result in the release of any existing responsive material to Louthian.

I. Background

On November 19, 1998, Louthian filed a FOIA request with DOE/SR, seeking: (1) copies of the computer-generated list of salaried professional employees used by management at SR prior to a 1997 layoff, (2) a list of employees being considered by management for the 1997 layoff in 1996, and (3) the list of employees being considered for layoff on January 10, 1997, and January 15-17, 1997. In a determination letter, SR responded that DOE did not possess or own responsive documents. Letter from SR to Louthian (January 25, 1999). Rather, the records requested were "employment- related records" of Westinghouse Savannah River Company (WSRC), the management and operating contractor of SR. Id. Louthian appealed this determination, asserting that the requested records should be considered agency records because the information is readily available to DOE from WSRC. Letter from Louthian to OHA (February 2, 1999) (Appeal).

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 WSRC, are subject to the FOIA. See, e.g., International Brotherhood of Electrical Workers, 27 DOE ¶ 80,152 (1998); 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. WSRC Is Not An Agency 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 DOE, WSRC is the contractor responsible for maintaining and operating SR. See Memorandum from Jim Durkis, SR, to Valerie Vance Adeyeye (February 2, 1999). While DOE obtained WSRC's services and exercises general control over the contract work, it does not supervise the day-to-day operations of WSRC. Electronic Mail Message from Pauline Conner, SR, to Valerie Vance Adeyeye, Staff Attorney, OHA (February 11, 1999). We therefore conclude that WSRC cannot be considered an “agency” subject to the FOIA.

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

Although WSRC is not an agency for the purpose of the FOIA, its records relevant to Louthian’s request could become “agency records” if DOE obtained them and they were within DOE’s control at the time Louthian made its 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, SR has informed us that the information that Louthian seeks was not in the agency’s control at the time of the appellant’s request. See Electronic Mail Message from Pauline Conner, SR to Valerie Vance Adeyeye, OHA (February 11, 1999). Based on these facts, the responsive 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 Contract Provides That Employment-Related 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 DOE and the 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 contract between DOE and WSRC to determine the status of the requested records. The contract provides that all records “acquired or generated” by the contractor in its performance of the contract shall be the property of DOE "[e]xcept as provided in paragraph b . . . . " Contract DE-AC09-96SR18500 (October 1, 1996), Section H.27, Paragraph (a). See also International Brotherhood of Electrical Workers, 27 DOE ¶ 80,152 (1998). Paragraph (b) of the DOE-SR contract states that employment-related records are considered the property of the Contractor, including personnel records and similar files. Because the documents at issue are related to employment issues at WSRC, 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 February 2, 1999 by Louthian & Louthian, OHA Case No. VFA-0474, 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: March 3, 1999