Case No. VFA-0534, 27 DOE ¶ 80,246

December 13, 1999

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Wayne L. Pretti

Date of Filing: November 12, 1999

Case Number: VFA-0534

On November 12, 1999, Wayne L. Pretti filed an Appeal from a final determination that the Rocky Flats Field Office (Rocky Flats) of the Department of Energy (DOE) issued on September 30, 1999. In its determination, Rocky Flats denied Mr. Pretti’s request for information submitted under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004. This Appeal, if granted, would require Rocky Flats to release the information it withheld.

Background

In a letter dated June 16, 1999, Mr. Pretti submitted a FOIA request to Rocky Flats for a copy of a report issued after an investigation of the billing practices of Systems Engineering and Management Associates, Inc. (SEMA). SEMA was a third tier contractor to Dyncorp Colorado, Inc. (DCI), a subcontractor at Rocky Flats. Allegedly, SEMA billed DCI for all hours SEMA’s employees worked on the contract, including overtime. The investigation concerned whether SEMA paid overtime to its employees. Request Letter dated June 16, 1999, from Wayne L. Pretti to Mary Hammack, FOIA/PA Officer, Rocky Flats. Mr. Pretti also requested any documents prepared by DOE, Kaiser-Hill (KH), DCI, or SEMA(1) in response to the report. On September 30, 1999, Rocky Flats denied his request, stating that it did not have a copy of the report. Further, Rocky Flats claimed that, under the contract between Rocky Flats and KH, the report is not defined as an “agency record” because the contract “clearly defines internal complaint records, procurement records, and records pertaining to wages, salaries and benefits . . . as being the property of the contractor.” Determination Letter dated September 30, 1999, from Mary Hammack, FOIA/PA Officer, Rocky Flats, to Wayne L. Pretti.

In response, Mr. Pretti filed this Appeal. He argues that the information cannot be an internal complaint record, because it is a report by a federal government agency independent of the DOE, KH, DCI, and SEMA. He alleges that the report deals with a

violation of public law, not an internal complaint. He also argues that Rocky Flats has made an extremely broad interpretation of the contract language in order to reach its determination that the report is a record “related to any procurement action by the Contractor” and “pertaining to wages, salaries, and benefits.” Appeal Letter dated October 25, 1999, from Wayne L. Pretti to Director, Office of Hearings and Appeals (OHA), DOE.

Analysis

In responding to a request for information filed under the FOIA, it is well established that an agency must "conduct a search reasonably calculated to uncover all relevant documents." Truitt v. Department of State, 897 F.2d 540, 542 (D.C. Cir. 1990). "The standard of reasonableness which we apply to agency search procedures does not require absolute exhaustion of the 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);accord Truitt, 897 F.2d at 542. We have not hesitated to remand a case where it is evident that the search conducted was in fact inadequate. See, e.g., Glen Milner, 17 DOE ¶ 80,132 (1988).

The initial information Mr. Pretti requested is a report of an investigation into SEMA’s billing practices. Mr. Pretti asserts that the investigation was conducted by a “federal government agency independent of the DOE, Rocky Flats, KH, DCI, and SEMA.” Appeal Letter at 2. In fact, Rocky Flats has informed us that the investigation and subsequent report was completed by a contractor, but not KH. Memorandum of Telephone Conversation on December 1, 1999, between Janet R. H. Fishman, Attorney-Examiner, OHA, and Mary Hammack, FOIA/PA Officer, Rocky Flats (December 1, 1999 Telephone Memorandum). Rocky Flats has stated that neither it nor KH possesses a copy of the report. Determination Letter dated September 30, 1999, from Mary Hammack, FOIA/PA Officer, Rocky Flats, to Wayne L. Pretti; December 1, 1999 Telephone Memorandum. Rocky Flats stated that both the DOE and KH parts of the facility were searched. The FOIA/PA Officer at Rocky Flats questioned DOE contracting officials, who would be most likely to possess knowledge about the report and the contractor. They were asked if any relevant information existed. The answer was negative. DOE personnel also checked the computer system that tracks all records maintained by Rocky Flats to confirm that no reference to SEMA or the report existed. It did not. See Memorandum of Telephone Conversation on November 29, 1999, between Janet R. H. Fishman, Attorney-Examiner, OHA, and Mary Hammack, FOIA/PA Officer, Rocky Flats; Memorandum of Telephone Conversation on December 2, 1999, between Janet R. H. Fishman, Attorney-Examiner, OHA, and Mary Hammack, FOIA/PA Officer, Rocky Flats. In addition, the FOIA/PA Officer contacted KH personnel who are responsible for maintaining the contract records. Likewise, KH reported that it did not have a copy of the report. Id.

However, we do not believe the search can stop with KH. Relevant records could exist at DCI and SEMA. The contract between the DOE and KH contains a clause regarding the ownership of records acquired or generated in the performance of the contract. Contract No. DE-AC34-95RF00825, Section H.4. For the most part, records acquired or generated in the performance of the contract are considered government records. Id. In addition, section H.4 contains a provision stating that KH shall include a similar record-ownership provision in all subcontracts that are of a cost-reimbursement type. Id. The contract between KH and DCI contains the ownership-of-records clause. See Memorandum of Telephone Conversation December 6, 1999, between Janet R. H. Fishman, Attorney- Examiner, OHA, and Ken Leonardi, Attorney, KH. Therefore, DCI’s records must be searched to ascertain if it possesses a copy of the report. If DCI has the report, Rocky Flats must then determine whether it is subject to disclosure under the FOIA or applicable regulation. In addition, if the contract between DCI and SEMA contains the ownership-of- records section, SEMA’s records must also be searched. Therefore, we will remand the matter so a search of DCI’s records can be performed and so Rocky Flats can ascertain whether the SEMA records must also be searched.

In his original request, Mr. Pretti also requested any documents prepared by DOE, KH, DCI, or SEMA in response to the report in addition to a copy of the report. In a letter dated September 27, 1999, to Rocky Flats, Mr. Pretti indicated that his request could be fulfilled in two parts by sending him a copy of the report first followed by the other documents. See Letter dated September 27, 1999, from Wayne L. Pretti to Mary Hammack, FOIA/PA Officer, Rocky Flats. It is our understanding that Rocky Flats believes its determination of September 30, 1999, to be a final determination and to answer all Mr. Pretti’s requests. Since Rocky Flats referred only to the report and not to the other requested documents, the determination is incomplete. Therefore, we will also remand the Appeal on this matter for a determination regarding the other requested information.

It Is Therefore Ordered That:

(1) The Appeal filed by Wayne L. Pretti, on November 12, 1999, Case No. VFA-0534, is hereby granted as set forth in Paragraph (2) below.

(2) This matter is hereby remanded to the Rocky Flats Field Office of the Department of Energy, which shall issue a new determination in accordance with the instructions set forth above.

(3) This is a final Order of the Department of Energy from which any aggrieved party may seek judicial review pursuant to the provision 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: December 13, 1999

(1)KH is the Integrating or Prime Contractor at Rocky Flats. DCI is a subcontractor of KH. SEMA was a subcontractor of DCI.