Case No. VFA-0559, 27 DOE ¶ 80,264
March 15, 2000
DECISION AND ORDER
OF THE DEPARTMENT OF ENERGY
Appeal
Name of Petitioner: PowerMax Inc.
Date of Filing: February 15, 2000
Case Number: VFA-0559
On February 15, 2000, PowerMax Inc. (PowerMax) filed an Appeal from a final determination that the Nevada Field Office (NV) of the Department of Energy (DOE) issued on January 6, 2000. In its determination, NV informed PowerMax that records responsive to the request for information it 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, were not agency records and thus were not subject to the FOIA. Consequently, NV did not provide a copy of the responsive documents to PowerMax. This Appeal, if granted, would require NV to release the information it withheld.
Background
This FOIA Appeal arises out of a contract dispute involving PowerMax and Pavel Enterprises, Inc. (PEI). Bechtel Nevada (BN) is the management and operating support contractor for the Washington Aerial Measurements Operations (WAMO) facility at Andrews Air Force Base in Camp Springs, Maryland.(1) BN employed PEI to be the general contractor at the WAMO project. PowerMax is a subcontractor to PEI at the WAMO project.
In a December 10, 1999 request for information (Request), PowerMax requested copies of 16 categories of documents relating to BN’s communications concerning the WAMO project and other WAMO project and contract documents concerning BN and PEI. The 16 categories of documents are listed below:
- Meeting minutes and notes from the time of the pre-construction meeting to the end of the WAMO project.
- Requisitions submitted by PEI to Bechtel as well as any related correspondence, checks, wire transfer information and other related documentation relating to payments requisitioned by PEI or payments made
by Bechtel to PEI for services rendered under the WAMO facility
contract.(2)
3. Change orders and any settlement negotiation meeting minutes, notes, correspondence, and other documentation relating to any change orders proposed, contemplated or issued under the WAMO contract.
4. Schedules prepared by Bechtel or its contractors.
5. Information submitted by PEI which concerns subcontractors to be used on the project.
6. Correspondence, memoranda, faxes, and other documentation between Mr. Dwight Burch, Bechtel on-site field representative, and BN.
7. Correspondence, memoranda, faxes, and other documentation between Mr. Dwight Burch, Bechtel on-site field representative, and PEI.
8. Payment history of the WAMO project reflecting the payment made by Bechtel to PEI for the approved mechanical scheduled line items on a month to month basis from the project start-up through the date of this request, including copies of PEI’s or Bechtel’s actual monthly approved payment breakdowns.
9. PEI’s initial job schedule submitted to Bechtel for approval, the approved schedule and any updated schedules.
10. A copy of PEI’s performance and payment bond with BN for the WAMO project.
11. Correspondence, memoranda and other documentation between PEI and Bechtel concerning subcontractors that performed work on the WAMO project.
12. Correspondence or documentation addressing liquidated damages or other damages applicable to the WAMO project.
13. A copy of PEI’s contract with BN.
14. Daily job reports, daily job information, field notes and similar documents from Mr. Dwight Burch of BN, the on-site representative.
15. Daily job reports, daily job information, field notes and similar documents submitted to BN from PEI.
16. Notices of delay from BN to PEI.
In its January 6, 2000 Determination Letter, NV stated that with regard to documents described in Request categories 1 through 9 and 11 through 16, all responsive documents to the Request are the property of BN. NV asserted that the DOE-BN contract provides that all procurement records are deemed by the contract to be the property of BN and not the DOE. Consequently, these records are not “agency records” and thus, not subject to the FOIA. With regard to Request category 10, BN released a copy of the Performance and Payment Bond to PowerMax. The Determination Letter states that while the Bond is a BN-owned document, BN has previously provided copies of that Bond to other parties.
PowerMax challenges NV’s failure to provide responsive documents to its Request. In the Appeal, PowerMax asserts that PEI is in violation of the Federal Prompt Pay Act and that PEI is wrongfully “passing through” delay charges to PowerMax.
Analysis
As an initial matter, we do not agree with PowerMax’s arguments regarding its need for the requested documents as justifying release of the documents under the FOIA. The FOIA applies to “records” that are maintained by “agencies” within the executive branch of government. 5 U.S.C. § 552(f). Consequently, the FOIA is applicable only where the requested documents may be considered an “agency record” or, pursuant to DOE regulation, is otherwise deemed to be the property of the DOE by contractual provision. Need is not relevant. Nevertheless, we have reviewed the facts of this case and find that NV was correct in its conclusion that the requested records would not be subject to release under 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 the courts have fashioned for determining whether documents created by non-federal organizations, such as BN, are subject to the FOIA. See, e.g., Los Alamos Study Group, 26 DOE ¶ 80,212 (1997) (LASG). 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 LASG, 26 DOE at 80,841.
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 Supreme Court has held that an entity will not be considered a federal agency for purposes of the FOIA unless its operations are subject to "extensive, detailed, and virtually day-to-day supervision." Forsham v. Harris, 445 U.S. 169, 180 & n. 11 (1980) (citing United States v. Orleans, 425 U.S. 807 (1976)). In the present case, although BN is the management and operating support contractor for WAMO, the DOE does not supervise BN's day-to-day operations. Memorandum of telephone conversation between Michael Brown, Office of Public Affairs and Information, NV, and Richard Cronin, Assistant Director, OHA (March 14, 2000). We therefore conclude that BN is not an "agency" subject to the FOIA.
Although BN is not an agency for the purposes of the FOIA, its records relevant to PowerMax’s request could become "agency records" if DOE obtained them and they were within the DOE's control at the time the Appellant made its FOIA request. Department of Justice v. Tax Analysts, 492 U.S. 136, 144-46 (1989) (Tax Analysts). In this case, none of the responsive documents at issue was in the DOE's control or possession at the time of the Appellant's request. At the time of the Request, all responsive records were in the possession of BN. See Memorandum of telephone conversation between Michael Brown, Office of Public Affairs and Information, NV, and Richard Cronin, Assistant Director, OHA (February 17, 2000). Based on these facts, the documents do not qualify as "agency records" under the test set forth by the federal courts. See Tax Analysts, 492 U.S. at 145- 46.
Even if contractor-acquired or contractor-generated records fail to qualify as "agency records," they may still be subject to release if the contract between the DOE and that contractor provides that the records in question are the property of the agency. The DOE regulations provide that "[w]hen a contract with DOE provides that any records acquired or generated by the contractor in its performance of the contract shall be the property of the Government, 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)(2)." 10 C.F.R. § 1004.3(e)(1).
The relevant contract provisions in the DOE-BN contract are provided below:
I. 117. 970.5204-79 - ACCESS TO AND OWNERSHIP OF RECORDS (JUNE 1997)
(a) Government-owned records. Except as 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 and shall be delivered to the Government or otherwise disposed of by the contractor either as the contracting officer may from time to time direct during the process of the work, or in any event, as the contracting officer shall direct upon completion or termination of the contract.
(b) Contractor-owned records. The following records are considered the property of the contractor and are not within the scope of paragraph (a) of this clause.
. . . .
(3) Records relating to any procurement action by the Contractor, except for records that under 48 C.F.R. (DEAR) 970.5204-9 Accounts, Records, and Inspection, are described as the property of the Government . . . . (3)
Contract No. DE-AC08-96PO11718, Modification A061.
The requested documents all pertain to BN's procurement of services and material for the WAMO project. Thus, the provisions of section I.117 quoted above indicate that such records would be contractor-owned records and not government records.
Because we find that the responsive documents are not agency records for the purposes of the FOIA and are not deemed to be DOE property by the DOE-BN contract, we find that the BN documents are not subject to release pursuant to the FOIA or DOE regulations. Consequently, PowerMax’s Appeal should be denied.
It Is Therefore Ordered That:
(1) The Appeal filed by PowerMax Inc., on February 15, 2000, Case No. VFA-0559, 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 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: March 15, 2000
(1)DOE is the agency that supervises the WAMO project.
(2) Bechtel is the parent corporation of BN.
(3)Section 970.5204-9 of the DEAR referenced in paragraph (b)(3) of the DOE-BN contract refers to government ownership of records relating to "financial and cost reports, books of account and supporting documents and other data evidencing costs allowable, revenues, and other applicable credits" pertaining to a contract. See DEAR Section 970.5204-9(d). None of the categories of requested documents relates to DOE-BN contract accounts.