Energy Market & Policy Analysis, Inc., Case No. VFA-0511, September 13, 1999

Case No. VFA-0511, 27 DOE ¶ 80,231

September 13, 1999

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Appellant: Energy Market & Policy Analysis, Inc.

Date of Filing: July 29, 1999

Case Number: VFA-0511

Energy Market & Policy Analysis, Inc., (EMPA) files this Appeal under the Freedom of Information Act (FOIA), 5 U.S.C. § 552. EMPA appeals from determination letters issued to it by the Department of Energy's (DOE) Office of Energy Efficiency and Renewable Energy (EERE) and Oak Ridge Operations Office (OROO). As explained below, we will deny the Appeal.

EMPA submitted a request for the following five categories of material.

1. All documents relating to the award of a subcontract or subcontracts by Lockheed Martin Energy Research Corporation to the firm of Bob Lawrence and Associates relating to the preparation of two reports ...

2. The subcontract or subcontracts and any related documents including but not necessarily limited to defining or modifying the subcontract or subcontracts, the scope of work, the funding, or dates for completion of work.

3. All documents ... reflecting a review of draft reports and/or providing comments on draft reports submitted pursuant to the subcontract or subcontracts, including comments by DOE employees, if any.

4. Correspondence or other documents relating to the subcontract or subcontracts not included above, including correspondence with members of Congress or Congressional Committees, Subcommittees or staff relating to the contract or subcontracts.

5. Documents showing the cost of the work to the U.S. Treasury of the work completed under the specified subcontract or subcontracts.

EMPA received a determination letter from OROO, providing all documents that "could be located ... in response to items 1 and 3 of [EMPA's] request. No information could be located in response to items 2, 4, and 5 of [EMPA's] request." OROO's determination letter also notified EMPA that its "search did not extend to the files which are the property of the contractor, Lockheed Martin Energy Research Corporation [LMERC]. Since procurement-related records, such as the records pertaining to these subcontracts, are the property of the contractor and not agency records pursuant to an ownership of records clause, they are not accessible under the FOIA."

EMPA also received a determination letter from EERE, stating that the office "has investigated this matter and has found that no requested documents exist here. The Lockheed Martin Energy Research Corporation executed the award and has all associated documentation.... We understand that this FOIA request has also been made to the Lockheed Martin Energy Research Corporation. They hold any existing subject documents and will provide all those pertinent to your request for which FOIA is applicable."

EMPA presents three requests for relief in its appeal. The first is a general request that we "direct the appropriate officials at DOE Headquarters, Oak Ridge Operations Office, and, if appropriate, Lockheed Martin Energy Research Corporation, to comply fully with [its] FOIA requests ... without further delay." EMPA adds that

at least one of the reports published as a result of the subcontract makes very clear that the work was done for and was funded by the Office of Energy Efficiency and Renewable Energy.... The obvious involvement of EERE casts doubt on [its] assertion that no documents covered by my request exist at DOE Headquarters.... Documents provided by [OROO] make clear that Dr. James Daley and Dr. Christine Platt of EERE participated in the review of draft reports and, apparently, attended one or more meetings where the subcontract work was discussed. These facts cast further doubt on the assertion that no documents covered by [the] request exist at DOE Headquarters.

We contacted Dr. James Daley, who works in EERE, about EMPA's request. Concerning the report referred to above, Dr. Daley explained that his office's involvement was limited to approving the funding and reviewing a draft. He said his office reviewed a draft and returned it to the author with some notes. He stated that EERE kept no copies of documents relating to either the subcontract or the reports produced by the subcontract. In addition, we contacted OROO and were informed that personnel there conducted a search for documents relating to the subcontract. Consequently, we are convinced that EREE and OROO complied fully with the FOIA in searching for documents responsive to EMPA's request.

In its second request, EMPA asks that we "resolve the apparent contradiction between the assertions in the letters from [EERE] and [OROO] concerning access to documents in the possession of Lockheed Martin Energy Research Corporation." EMPA characterizes the two determination letters as "contradictory and perhaps evasive," because EERE said that LMERC would provide responsive records, while OROO said that LMERC records are not accessible under the FOIA.

While the FOIA requires agencies to make certain records available to the public, it does not require agencies to respond to questions. Nevertheless, we asked Dr. Daley to clarify his office's response. Dr. Daley said that he drafted EERE's determination letter. He explained that he used the name "Lockheed Martin Energy Research Corporation" to refer generally to the Oak Ridge site, since LMERC is the management and operating contractor at the site. Thus, given Dr. Daley's explanation, there is no contradiction between EERE's and OROO's letters. EERE intended to inform EMPA that it would refer the request to OROO, but incorrectly used the name of the management and operating contractor at the Oak Ridge site.

EMPA's third request asks "if DOE's contract with Lockheed Martin does, in fact, place documents 'outside the reach' of a FOIA request, please provide a reference to DOE's legal authority for including such a provision in the contract. Nearly all the work performed by Oak Ridge National Laboratory is paid for by U.S. taxpayers. There appears to be no logical reason to keep taxpayers from seeing pertinent documents covering work paid with tax dollars."

We note again that the FOIA does not require agencies to respond to questions. Nevertheless, we have reviewed EMPA's request. In framing this request, EMPA assumes that materials paid for by tax revenues are thereby subject to the FOIA. This assumption is incorrect. International Brotherhood of Electrical Workers, 27 DOE ¶ 80,152 at 80,620 (1998). The FOIA applies only to records that are maintained by agencies within the executive branch of the federal government. 5 U.S.C. § 552(f). It does not apply to materials that are paid for by tax revenues, but that are outside the executive branch, such as materials held by federal courts and Congress. E.g., Dow Jones & Co. v. Department of Justice, 917 F.2d 571, 574 (D.C. Cir. 1990) (Congress); Warth v. Department of Justice, 595 F.2d 521, 523 (9th Cir. 1979) (federal courts).

Agency records are defined as those documents created or obtained by an agency, and under agency custody and control at the time of the request. Department of Justice v. Tax Analysts, 492 U.S. 136, 144-45 (1989) (Tax Analysts). Our first question, then, is whether the requested materials were created by an "agency."

In United States v. Orleans, 425 U.S. 807 (1976) (Orleans), a case that did not involve the FOIA, the Supreme Court defined the conditions under which a private organization is considered a federal agency. The Court determined that "the question here is not whether the . . . [organization] 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. Subsequently, the Supreme Court ruled that the Orleans standard provides the 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).

LMERC is a privately owned and operated company. While the DOE exercises general control over the contract work performed by LMERC, it does not supervise the company's day-to-day operations. See Contract No. DE-AC05-84OR21400. We therefore conclude that LMERC is not an "agency" subject to the FOIA. Gary S. Foster, 27 DOE ¶ 80,208 (1999).

Materials that were not created by an agency may nevertheless be subject to the FOIA under the Tax Analysts test if the agency obtained them and they were within the agency's control when the request was made. Tax Analysts, 492 U.S. at 144-46. In this case, we contacted representatives of both EERE and OROO and have determined that DOE did not have actual control of the requested materials.

Even if contractor records fail to qualify as "agency records," they may still be subject to release under DOE regulations if the contract between DOE and the contractor provides that the records in question are the property of the DOE. 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 examined the contract between DOE and LMERC. The contract, designated DE-AC05-84OR21400, provides in Section H.30 that:

(a) 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 ...

(b) Contractor's Own Records. The following records are considered the property of the Contractor and are not within the scope of paragraph (a) above....

(9) Records related to:

(i) Procurement actions by the Contractor.

Therefore, records of LMERC's procurement agreement with Bob Lawrence & Associates fall within the categories of records excluded from government property.

We conclude that materials responsive to Items 2, 4, and 5 of EMPA's request were neither created nor obtained by the DOE, nor under the custody and control of the DOE at the time of the request. Consequently, these documents are not subject to release under the FOIA. In addition, we have determined that these records are not subject to release under the provisions of 10 C.F.R § 1004.3(e). We will therefore deny EMPA's Appeal.

It Is Therefore Ordered That:

(1) The Appeal filed by Energy Market & Policy Analysis, Inc., Case No. VFA-0511, 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: September 13, 1999