Case No. VFA-0505, 27 DOE ¶ 80,219

July 27, 1999

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Appellant:Edwin P. Harrison

Date of Filing:June 23, 1999

Case Number: VFA-0505

Edwin P. Harrison files this Appeal under the Freedom of Information Act (FOIA), 5 U.S.C. § 552. Harrison appeals from a determination letter issued to him by the Department of Energy's (DOE) Savannah River Operations Office (SROO). As explained below, we will grant the appeal and remand Harrison's request to SROO for a further search for responsive materials.

I. Background

The FOIA generally requires that all federal agency records be made available to the public, subject to certain specified exemptions. On June 2, 1999, Harrison submitted a request to the DOE under the FOIA. Harrison requested "the name and dollar amount of all subcontracts awarded by Westinghouse Savannah River Company [WSRC] ... from 1989 to the present." He added that he "would also like the dollar amounts and approval dates for any extensions or change orders" on the subcontracts, and explained that he was "primarily interested in knowing the awarded dollar amount and ultimate (final) cost of all awarded subcontracts."

The DOE's Savannah River Office responded with a determination letter dated June 17, 1999. The determination letter stated:

The documents responsive to your request are neither owned nor possessed by [the DOE]. Specifically, DOE's contract with [Westinghouse Savannah River], DE-AC09-96SR18500, Clause H-27, provides:

The following records are considered the property of the contractor and are not Government documents: non-

accounting records relating to any procurement action by the Contractor.

The records you have requested are procurement-related records of WSRC. Therefore, they are not Government records and not covered under the FOIA. Further, DOE performed a search, and we have no documents responsive to your request.

II. Analysis

Our threshold inquiry in this case is whether the records that Harrison requested can be considered "agency records," and thus subject to the FOIA. The language of the FOIA does not define what constitutes an "agency record." However, courts have established that a record is an agency record for purposes of the FOIA if it meets a two-part test: it must be (1) either created or obtained by an agency, and (2) under agency control at the time of the FOIA request. Department of Justice v. Tax Analysts, 492 U.S. 136, 144-45 (1989) (Tax Analysts).

A. WSRC is not an agency within the terms of the FOIA.

In general, entities are not considered government agencies for FOIA purposes, if they "are neither chartered by the federal government nor controlled by it." H.R. Rep. No. 93-1380, at 14 (1974)); Forsham v. Harris, 445 U.S. 169, 179-80 (1980) (a privately controlled organization, though financed entirely by grants from a federal agency, is not subject to the FOIA). An entity is not considered to be controlled by the federal government if it is not subject to day-to-day supervision by federal government and its employees or management are not considered government employees. Gilmore v. Department of Energy, 4 F. Supp. 2d 912, 919-20 (N.D. Cal. 1998).

Under its contractual relationship with DOE, WSRC is the contractor responsible for maintaining and operating the Savannah River site. While DOE exercises general control over contractual work, it does not supervise the day-to-day operations of WSRC. We have therefore found that WSRC is not an agency subject to the FOIA. Louthian & Louthian, 27 DOE ¶ 80,190 (1999).

B. WSRC's records were not in DOE's possession at the time of Harrison's request.

Although WSRC is not an agency for purposes of the FOIA, its records responsive to Harrison's request could be deemed agency records if DOE obtained them and they were under DOE's control at the time of the request. Tax Analysts, 492 U.S. at 144-46; Forsham, 445 U.S. at 182. However, SROO stated in its determination letter that it had performed a search and found no responsive records. In addition, we contacted Thomas Reynolds, Deputy Director of the Contracts Management Division at SROO. He confirmed that the records sought by Harrison are not maintained in the possession or control of the DOE.

Based on our finding that WSRC is not an agency for purposes of the FOIA, and on statements by personnel at SROO that no responsive records were located, we conclude that the requested records do not qualify as agency records under the Tax Analysts test.

C. The contract provides that certain records are DOE property.

DOE regulations state that "when 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). Thus, even if records are not agency records, they still may be subject to release under this regulation if the contract between DOE and the contractor provides that they are the property of DOE.

We examined the contract between DOE and WSRC to determine the status of the requested records. As stated in the determination letter, the contract provides that all records generated by WSRC in its performance of the contract shall be the property of the DOE, except for certain specified excluded items. Among the excluded items are "non-accounting records relating to any procurement action" by WSRC. Contract DE-AC09-96SR18500 (October 1, 1996), Section H.27, Paragraphs (a) and (b)(3). Thus, the contract implies that accounting records relating to procurement actions by WSRC are the property of DOE.

We believe it possible that the information sought by Harrison - name and dollar amounts of subcontracts, subcontract extensions, and subcontract change orders - could be wholly or partially contained in accounting records relating to procurement by WSRC. We asked SROO about the accounting records, and received the response that "the accounting records may be difficult to understand if the records show company names and contract numbers in one file and contract numbers with payment amounts in another file. We will not know what is available until a search is performed."

III. Conclusion

Notwithstanding difficulties in understanding the records, since WSRC accounting records are apparently the property of the DOE, and possibly contain material responsive to Harrison's request, they must be searched. We will therefore remand this matter to SROO to issue a new determination. That determination shall either release the material responsive to the request, or provide a justification for withholding.

It Is Therefore Ordered That:

(1) The Freedom of Information Act Appeal filed by Edwin P. Harrison, Case Number VFA-0505, is hereby granted as specified in Paragraph (2) below.

(2) This matter is hereby remanded to the Savannah River Operations Office to issue a new determination in accordance with the instructions set forth in the above Decision and Order.

(3) 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: July 27, 1999