Case No. VFA-0497, 27 DOE ¶ 80,208

May 26, 1999

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner:Gary S. Foster

Date of Filing:May 10, 1999

Case Number: VFA-0497

On May 10, 1999, Gary S. Foster (the Appellant) filed an Appeal from a determination the Authorizing Official of the Department of Energy’s Oak Ridge Operations Office (DOE/OR) issued to him on April 22, 1999. In that determination, the Authorizing Official stated that DOE did not possess records responsive to the request for information that the Appellant filed under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by DOE in 10 C.F.R. Part 1004. The Authorizing Official further stated that the records were owned by a DOE contractor. In his Appeal, the Appellant asserts that DOE/OR’s search for records was inadequate. Further, he stated that even if the requested records were owned by a DOE contractor, they should be subject to release under the FOIA.

Background

In his April 13, 1999 request for information, the Appellant sought photographs that were taken as a result of a concern regarding health and safety practices (known as an employee concern) that he had filed with a DOE office, the Employee Concerns office (EC). The photos were of locations the Appellant identified in his employee concern as possibly containing beryllium. With his request, he included the employee concern report issued by EC which noted that these photos were taken by a photographer with the Lockheed Martin Energy Systems, Inc. (LMES) General Counsel. In her determination, the Authorizing Official stated that no agency records exist regarding this request since the photos were solely owned by either Lockheed Martin Energy Research Corporation or LMES. She further stated that DOE did not possess copies of the photos and her search had not extended to the files of the contractor. Therefore, she denied the request. The Appellant responded that he believes copies of the photos exist at EC and therefore DOE/OR’s search was inadequate. In addition, he argued that these photos were created using taxpayers’ funds, and thus should be subject to release under the FOIA. Finally, he noted that since DOE should be able to get access to the contractor’s records, the records should be considered to be agency records. In addition, he wanted to know why DOE/OR searches contractor-possessed records for some FOIA requests but did not in his case.

Analysis

We have held that a FOIA request deserves a thorough and conscientious search for responsive documents. When we have found that a search was inadequate, we have consistently remanded the case and ordered a further search for responsive documents. E.g., Native Americans for a Clean Environment, 23 DOE ¶ 80,149 (1993); Marlene R. Flor, 23 DOE ¶ 80,130 (1993); Eugene Maples, 23 DOE ¶ 80,106 (1993). However, the FOIA requires that a search be reasonable, not exhaustive. "The standard of reasonableness that we apply to the agency search procedures does not require absolute exhaustion of 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).

We contacted DOE/OR to determine how it conducted the search. We learned that DOE/OR began its search with the LMES photographer who took the requested photos. The photographer informed DOE/OR that the photos were taken at the direction of the LMES General Counsel. The General Counsel had requested that these photos be taken for use in defending LMES against potential charges of evidence destruction in workers’ compensation litigation concerning alleged beryllium exposure. The photos have at all times remained in LMES’ sole possession. Records of Telephone Conversations between Amy Rothrock, Authorizing Official, DOE/OR, and Dawn L. Goldstein, Staff Attorney, Office of Hearings and Appeals (May 12 and 24, 1999). We believe that LMES was the logical starting place for DOE/OR’s search, since the Appellant had included the Employee Concerns report which stated that the photos were taken by an LMES photographer. When Ms. Rothrock found out from LMES that the contractor had never circulated its files to any DOE office, it was reasonable for her to stop her search. We therefore find that DOE/OR conducted an adequate search of records in its possession.

We then inquired whether documents in the possession of LMES might be subject to mandatory release under the FOIA or DOE regulations. The Appellant asserted in his Appeal that all taxpayer- funded records are subject to release under the FOIA. This assertion is incorrect. See International Brotherhood of Electrical Workers, 27 DOE ¶ 80,152 at 80,620 (1998). 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). For the reasons set forth below, we conclude that these LMES-possessed photos never became “agency records” of DOE’s, and are instead the exclusive property of the contractor. Therefore, they are not subject to release under either the FOIA or 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 LMES, 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).

LMES is a privately owned and operated company. While the DOE exercises general control over the contract work performed by LMES, it does not supervise the company's day-to-day operations. See Contract No. DE-AC05-84OR21400. We therefore conclude that LMES is not an "agency" subject to the FOIA. Radian International, 26 DOE ¶ 80,126 (1996).

Although LMES is not an agency for the purposes of the FOIA, the requested photos could be considered "agency records" if the DOE obtained them and they were within the DOE's control at the time the Appellant made his FOIA request. 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 none of the photos the Appellant seeks was in the agency's control at the time of his request. See May 12, 1999 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.

Nevertheless, the Appellant also argues that because he believes that DOE/OR could get access to the photos, this should suffice to make them “agency records.” However, access alone is not enough to make a record an “agency record” for FOIA purposes. As stated in Tax Analysts, it is the agency’s assertion of control over a record that could potentially convert a record in a private contractor’s possession into an “agency record.” The Circuit Court of Appeals for the District of Columbia has enumerated the factors used to determine when this situation has occurred: (1) the intent of the document’s creator to retain or relinquish control over the records; (2) the ability of the agency to use and dispose of the record as it sees fit; (3) the extent to which agency personnel have read or relied upon the document; and (4) the degree to which the document was integrated into the agency’s record system or files. Burka v. Department of Health & Human Serv., 87 F.3d 508, 515 (D.C. Cir. 1996). None of these control-indicating facts has been shown to be present in the case at issue. As explained above, the photos relevant to this case were excluded from DOE’s ownership and ability to dispose of such records, and have remained exclusively in the contractor’s control. Accordingly, the requested photos 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. See also The Cincinnati Enquirer, 26 DOE ¶ 80,205 (1997).

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 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). We therefore next look to the contract between DOE and LMES 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-AC05-84OR21400, Section H.30 (a). Therefore, unless the photos reasonably fall within the excluded categories of documents described in Paragraph (b), they will be considered the property of DOE and potentially releasable under 10 C.F.R. § 1004.3(e).

We conclude that the photos fall within Paragraphs (b)(7) and (b)(8) of the ownership of records section of the contract. Paragraph (b)(7) excludes “internal legal files” from government ownership. Paragraph (b)(8) states that “files involving litigation by or against the Contractor with respect to which the costs are unallowable” are owned by the contractor. Ms. Rothrock has informed us that LMES’ litigation costs for the workers’ compensation claims are not reimbursed by DOE. Record of Telephone Conversation between Amy Rothrock and Dawn L. Goldstein (May 12, 1999). Accordingly, because LMES owns the photos, we find that they are not subject to release under the DOE regulations.

Finally, it is clear that DOE/OR could not search LMES’ files for the requested records, as it has done in other cases. In the case cited by the Appellant in his Appeal, Burlin McKinney, 26 DOE ¶ 80,215 (1997), the requester sought records relating to beryllium. Such records would not, on their face, appear to fall within one of the categories of contractor-owned records laid out in the DOE/LMES contract. Therefore, in that case, DOE/OR was obligated to conduct a search of those LMES records which were DOE-owned. In the instant case, DOE/OR was able to determine based on its conversations with LMES that the photos are in fact contractor-owned and not subject to release under the FOIA or DOE regulations. Thus, no search of LMES’ records was necessary.

Accordingly, since DOE/OR conducted an adequate search, and the requested photos are neither “agency records” nor subject to release under 10 C.F.R. § 1004.3, we must deny the Appeal at issue.

It Is Therefore Ordered That:

(1) The Appeal filed by Gary S. Foster on May 10, 1999, Case No. VFA-0497, 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 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 26, 1999