Case No. VFA-0535, 27 DOE ¶ 80,244

December 1, 1999

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Motion for Reconsideration

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

Date of Filing:November 2, 1999

Case Number: VFA-0535

On November 2, 1999, Lewis R. Ireland, Ph.D. (Appellant) filed a Motion for Reconsideration (Motion) of a Decision and Order issued to him by the Office of Hearings and Appeals (OHA) of the Department of Energy (DOE). Lewis R. Ireland, Ph.D., 27 DOE ¶ 80,238 (1999). In that Decision, we denied Dr. Ireland’s Appeal regarding his Freedom of Information Act (FOIA) request to the DOE’s Savannah River Operations Office (DOE/SR). In his current Motion, the Appellant requests reconsideration based on one additional material fact he is presenting to this Office for the first time.

Background

On August 30, 1999, the Appellant submitted a FOIA request to DOE/SR seeking 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 Project Management Institute (PMI), a private entity. (2) Therefore, he denied the request. The Appellant responded, in relevant part, that these records were created using taxpayers’ funds, and thus should be subject to release under the FOIA. He also alleged that the documents contain evidence of a federal crime. In the OHA’s October 14 Decision, we upheld the determination of DOE/SR. Specifically, the OHA found that the records, composed solely of emails, dealt solely with PMI business. Because the responsive emails had not been obtained or controlled by DOE at the time of the request, they were not agency records. Further, since the responsive emails were not acquired or generated by WSRC in its

performance of its contract with DOE, they were not subject to the DOE contractor records regulation, 10 C.F.R. § 1004.3. Therefore, the OHA upheld the DOE/SR determination. On November 2, 1999, the Appellant filed the present Motion challenging our Decision.

Analysis

The DOE FOIA regulations do not explicitly provide for reconsideration of a final Decision and Order. See 10 C.F.R. § 1004.8. However, in prior cases, we have used our discretion to consider Motions for Reconsideration where circumstances warrant. Nathaniel Hendricks, 25 DOE ¶ 80,173 (1996). In the past, we have looked to the standards contained in OHA’s procedural regulations for guidance as to the appropriate substantive standards for use in this type of case. See Ron Vader, 23 DOE ¶ 80,183 at 80,704 (1993).(3)Those provisions require a showing of “significantly changed circumstances” be made before such motions are considered. 10 C.F.R. §1003.35. According to this regulation, “significantly changed circumstances” include the discovery of material facts which were not known at the time of the initial proceeding. 10 C.F.R. § 1003.35(a)(1). The Appellant’s Motion provides one material fact which the Appellant has not previously brought to the DOE’s attention. Therefore, we have decided to consider this material fact noted by the Appellant in his Motion for Reconsideration.(4)

The Appellant informed us for the first time of his belief that the responsive emails were addressed either from or to a “srs [Savannah River Site].gov” email address. He contends that a “.gov” address means that the email server utilized belongs to a government entity, in this case, the DOE, and any email on that server must therefore be an agency record. The Appellant is incorrect. The server utilized for “srs.gov” emails belongs to WSRC. See Record of Telephone Conversation between Dawn L. Goldstein and James Durkis, Office of Chief Counsel, DOE/SR (November 8, 1999). These emails could therefore not be agency records under the FOIA since they were not created or obtained by an agency at the time of the initial request. Further, we also find that the DOE contractor records regulation does not apply. Emails on this WSRC-owned server are governed by the WSRC/DOE contract. Because that contract gives ownership to DOE only of “records acquired or generated by the contractor in its performance of the contract,” these exclusively PMI-related emails are not subject to our contractor records regulation.(5) Consequently, the responsive emails to which the Appellant refers are not subject to mandatory release under either the FOIA or the DOE contractor records regulation. We shall deny the Appellant’s Motion for Reconsideration.

It Is Therefore Ordered That:

(1) The Motion for Reconsideration filed by Lewis R. Ireland, Ph.D., on November 2, 1999, Case Number VFA-0535, is hereby denied.

(2) This is a final order of the Department of Energy of 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: December 1, 1999

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

(2)PMI’s only connection to DOE is a 1995 partnership agreement, which is not the type of agreement which would bring PMI under DOE contractor records regulation, 10 C.F.R. §1004.3. PMI has no contractual connection to WSRC.

(3)Counsel for PMI submitted a letter opposing the Appellant’s Motion for Reconsideration. See Letter from Richard A. Goldberg, PMI General Counsel, to Dawn L. Goldstein, Staff Attorney, OHA, and George B. Breznay, Director, OHA (November 17, 1999). In that letter, PMI Counsel noted that the Appellant had not complied with the procedural requirements of 10 C.F.R. § 1003.53 regarding notice to aggrieved parties. It is unnecessary to decide whether that provision applies in this context of a Motion for Reconsideration of a FOIA Decision, because any notice deficiency was cured when PMI received notice of this Motion for Reconsideration from WSRC and DOE and was given an opportunity to respond.

(4)In the Motion, the Appellant also noted other facts which we do not find to be material. He again argued that the responsive emails may contain evidence of a federal crime. As we stated in our prior Decision of this matter, this possibility has no bearing on our FOIA analysis. Second, the Appellant also noted his belief that at the time of the creation of the responsive emails, there was not a formal “shared executive program” between PMI and DOE, contrary to our statement otherwise in the original Decision. But regardless of whether Mr. Reeve was authorized to be conducting PMI business at the time of the responsive emails, the emails were not, in the words of Section 1004.3, “acquired or generated by the contractor in its performance of the contract,” but instead dealt solely with PMI concerns. Therefore, neither fact would have changed our initial Decision.

(5)However, this server was searched and no responsive records were found. See Record of Telephone Conversation between Dawn L. Goldstein, and James Durkis (November 10, 1999).

In addition, we note that in researching the issues raised by this Appeal, we again confirmed that the emails do not relate to DOE or WSRC in any way. See Record of Telephone Conversation between Dawn L. Goldstein and Daniel Pushkin, Counsel, PMI (November 30, 1999).