Tri-Valley CAREs, Case No. VFA-0554, February 25, 2000

Case No. VFA-0554, 27 DOE ¶ 80,260

February 25, 2000

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner:Tri-Valley CAREs

Date of Filing:February 1, 2000

Case Number: VFA-0554

On February 1, 2000, Tri-Valley CAREs (Appellant) completed the filing of an Appeal from a determination issued by the Department of Energy's (DOE) Oakland Operations Office (Oakland). The Appellant challenges Oakland’s determination that certain documents sought by it are not agency records and therefore are not subject to mandatory disclosure under the Freedom of Information Act (FOIA). 5 U.S.C. § 552; 10 C.F.R. Part 1004. This Appeal, if granted, would require Oakland to consider whether the requested documents could be released under the FOIA.

I. Background

On September 1, 1999, the Appellant filed a Request for Information seeking documents relating to the Inertial Confinement Fusion Program (the Program). In response to this Request, Oakland issued a determination on December 22, 1999.(1) In that determination, Oakland stated that it was not

releasing personal notes made by participants on a conference call related to the Program because it found that these records are not agency records, and therefore not subject to the FOIA.(2) In its Appeal, the Appellant claims that these records should be considered agency records under the Federal Records Management Act and the related General Records Schedule 32. See Letter from the Appellant to Director, OHA (January 27, 2000). The Appellant has also noted its belief that the notes contain substantive material that it needs. See Letter from Appellant to Director, OHA (February 16, 2000).

II. Analysis

We have considered Oakland's determination that the notes are not agency records and find, for the reasons explained below, that more facts are needed before it can be determined whether this analysis is correct. Under the FOIA, an "agency record" is a document which is (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). Clear indications that a document is an "agency record" are when a document of this type is part of an agency file, and it was used for an agency purpose. Kissinger v. Committee for Freedom of the Press, 445 U.S. 136, 157 (1980); Bureau of Nat'l Affairs, Inc. v. Department of Justice, 742 F.2d 1484, 1489-90 (D.C. Cir. 1984) (BNA); Ben Franklin, 20 DOE ¶ 80,110 at 80,526 (1990).(3)

In making the "agency records" determination, we look at the totality of circumstances surrounding the creation, maintenance, and use of the document(s) in question. BNA, 742 F.2d at 1492-93. We contacted Oakland to inquire as to the use and nature of the notes, as well as Oakland’s search for the notes. Approximately twenty people participated in a conference call regarding the Program. Oakland sent a request to each of the participants requesting the following: (1) various responsive documents and (2) a description of any notes of the call in the participant’s possession. At least one participant sent a copy of his notes to Oakland and at least one sent a brief description but did not send the notes. See Record of Telephone Conversation between RoseAnn Pelzner and Dawn L. Goldstein (February 16, 2000). In the descriptions, Oakland learned that the notes were created for the participants’ personal convenience. At the time of the Appellant’s FOIA Request, none of these notes were maintained in any official DOE file. Oakland also noted that some participants were neither DOE contractors nor DOE employees. However, the participants had not specified in their descriptions whether they had shared their notes with others, such as those not participating, in order to inform them of what had been said during the conference call. Thus, it was unclear how these notes were handled or if they may have been dispersed. See Memoranda of Telephone Conversations between Andrea Keith, Office of General Counsel, Oakland, and Dawn L. Goldstein (February 9 and 14, 2000).

We are unable to make a final determination from these facts. We are remanding this case in order that Oakland may ascertain whether these notes were shown to, circulated to, or used by other individuals for any reason, including some business purpose, such as informing them what had taken place, decision-making or performing a task. Oakland should also determine how widely, if at all, the information was disseminated. Oakland may wish to consult the list of factors contained in Ethyl Corp. v. United States EPA, 25 F.3d 1241, 1247 n.3 (4th Cir. 1994). Oakland should then determine whether, under the totality of the circumstances, any of the notes have attained the status of agency records. Certainly, if these notes were used solely as memory aids or mere personal work aids by the notetakers individually, the notes would not be agency records. See Washington Post v. United States Dep’t of State, 632 F. Supp. 607 (D.D.C. 1986).(4) Consequently, we will remand this matter to Oakland, which should promptly issue a new determination to the Appellant.

It Is Therefore Ordered That:

(1) The Appeal filed by Tri-Valley CAREs on February 1, 2000, Case No. VFA-0554, is hereby granted as specified in Paragraph (2) below and denied in all other respects.

(2) This matter is hereby remanded to the DOE’s Oakland Operations Office, which shall promptly issue a new determination in accordance with the guidance set forth in the above Decision.

(3) This is a final Order of the Department of Energy of which any aggrieved party may seek judicial review pursuant to 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: February 25, 2000

(1)Oakland stated in that determination that it was continuing to look for documents responsive to the Appellant’s request. In a letter received by this Office on February 16, 2000, the Appellant noted the lack of a final response from Oakland to the remainder of its request. Section 1004.8(a) of the DOE Regulations states that the Office of Hearings and Appeals (OHA) has jurisdiction to consider Freedom of Information Act Appeals in the following circumstances:

When the Authorizing Officer has denied a request for records in whole or in part or has responded that there are no documents responsive to the request . . . or when the Freedom of Information Officer has denied a request for waiver of fees. . . .

10 C.F.R. § 1004.8(a).

Since no appealable determination has been issued on the remainder of the Appellant’s request, the circumstances for an administrative appeal on this issue do not exist. Under the circumstances, the Appellant does have the right to file a complaint with the appropriate federal district court. See 5 U.S.C. § 552(a)(4)(B), (6)(C). Accordingly, we will not consider this portion of the Appellant’s appeal. We have, however, reminded Oakland of the need to respond promptly to this request. See Record of Telephone Conversation between RoseAnn Pelzner, FOIA Officer, Oakland, and Dawn L. Goldstein, Staff Attorney, OHA (February 16, 2000).

(2)Oakland withheld other information in that December 22, 1999 determination. The Appellant is not appealing those withholdings. See Letter from Appellant to the Director, Office of Hearings and Appeals (January 27, 2000).

(3)We note that the definition of agency records contained in the Federal Records Management Act, 44 U.S.C. 3301, and the related General Schedule 32 is instructive in a FOIA case but not dispositive. Forsham v. Harris, 445 U.S. 169, 183-84 (1980); BNA, 742 F.2d at 1493. This Office chooses to rely on the definition of agency records as developed in the FOIA context by federal courts as explained above. We further note that under the federal courts’ definition of agency records, the substantive nature of the notes is also not dispositive. Nor does a requester’s need for documents affect our FOIA analysis.

(4)If any of the notes were not mere memory aids or personal work aids, and were either created by or given to DOE contractors, Oakland should consider whether they fall within the provision of 10 C.F.R. § 1004.3, a regulation rendering some contractor-possessed documents subject to release. Moreover, even notes created by personnel not employed by DOE or a DOE-contractor could be subject to release, if these notes were then shared with and used by DOE personnel or DOE contractor personnel.