Case No. VFA-0530, 27 DOE ¶ 80,238

October 14, 1999

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner:Lewis R. Ireland, Ph.D.

Date of Filing:September 28, 1999

Case Number: VFA-0530

On September 28, 1999, Lewis R. Ireland, Ph.D., (the Appellant) filed an Appeal from a determination issued to him by the Authorizing Official of the Department of Energy’s Savannah River Operations Office (DOE/SR). 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 company called Project Management Institute (not a DOE contractor or subcontractor). In his Appeal, the Appellant asserted that DOE possesses responsive records. Further, he stated that even if the requested records were owned by PMI, they should be subject to release under the FOIA.

Background

In his August 30, 1999 request for information, the Appellant sought records referencing himself that were generated on October 1, 1998 or later. He stated that he believed these files to be in the possession of Westinghouse Savannah River Corporation (WSRC) employee Harold Reeve.(1) In his determination, the Authorizing Official stated that no agency records exist regarding this request since any responsive records are solely owned by PMI. Therefore, he denied the request. The Appellant responded that he believes DOE possesses copies of responsive records and that its search was inadequate. In addition, he argued that these records were created using taxpayers’ funds, and thus should be subject to release under the FOIA. Finally, he raised new questions about the relationship between PMI and DOE/SR and also alleged that the documents contain evidence of a federal crime.

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/SR to determine how it conducted the search. We learned that DOE/SR conducted a search of WSRC, which uncovered responsive email from Mr. Reeve’s WSRC account referencing the Appellant. WSRC did not find any other responsive documents in its files. However, it explained that Mr. Reeve is working under the auspices of a “shared executive program” between WSRC and PMI. Under this program, Mr. Reeve spends equal amounts of time working for WSRC and PMI, although PMI is not a contractor for WSRC or DOE. Under this program, Mr. Reeve conducts PMI business from his WSRC location and computer, and he is permitted to keep PMI records at his WSRC location. See Record of Telephone Conversation between Dawn Goldstein, Staff Attorney, Office of Hearings and Appeals, and Pauline Conner and Jim Durkis, Office of Chief Counsel, DOE/SR (September 28, 1999). DOE/SR did not request that Mr. Reeve turn over any of his PMI records. We believe that Mr. Reeve was the logical focal point for DOE/SR’s search, since the Appellant had stated that all responsive records were in his possession. We therefore find that DOE/SR conducted an adequate search of records in its possession and WSRC’s possession.

We then inquired whether any responsive PMI records held in WSRC offices or the responsive email 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 no responsive record ever became an “agency record” of DOE’s, or a record acquired or generated by WSRC in its performance of its DOE contract. Therefore, the responsive records 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 WSRC, 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).

WSRC is a privately owned and operated company. While the DOE exercises general control over the contract work performed by WSRC, it does not supervise the company's day-to-day operations. We therefore conclude that WSRC is not an "agency" subject to the FOIA. In addition, since PMI is also a privately owned and operated company, and has no contractual connection to DOE, it also is not an “agency” subject to the FOIA.

Although neither WSRC nor PMI is an agency for the purposes of the FOIA, the requested records 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 records the Appellant seeks was in the agency's control at the time of his request. See Record of Telephone Conversation of Dawn Goldstein, Pauline Conner and Jim Durkis. 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.

Moreover, because any responsive records were generated as a result of the business of PMI, with no relationship to WSRC or DOE, we do not believe they would be encompassed by the DOE contractor record regulation. This regulation provides that some contractor-owned records may be subject to release under certain conditions. One of those conditions is that the responsive items are “records acquired or generated by the contractor in its performance of the contract. . . .” See 10 C.F.R. 1004.3(e)(1). The responsive records in this case were not acquired or generated by WSRC in its performance of its contract with DOE. Although we believe the email to be WSRC property, since it utilized the WSRC server and a WSRC email account, it was not acquired or generated in WSRC’s performance of its contract with DOE, because it exclusively relates to PMI business. Accordingly, we find that any responsive records that exist are not subject to release under the DOE regulations. Thus, since DOE/SR conducted an adequate search, and the requested records are neither “agency records” nor subject to release under 10 C.F.R. § 1004.3, we must deny the Appeal at issue.(2)

It Is Therefore Ordered That:

(1) The Appeal filed by Lewis R. Ireland, Ph.D., on September 28, 1999, Case No. VFA-0530, 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: October 14, 1999

(1)1/ WSRC is the management and operating contractor at DOE’s Savannah River site.

(2)2/ With regard to the new questions that the Appellant raises regarding the relationship between DOE/SR and PMI, these should be the subject of a new FOIA request that he may file with DOE/SR.

We also note that the allegation that responsive documents may contain evidence of a federal crime has no relevance to the FOIA analysis described above.