Case No. VFA-0583, 28 DOE ¶ 80,106

August 1, 2000

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Mark Donham

Date of Filing: July 6, 2000

Case Number: VFA-0583

On July 6, 2000, Mark Donham filed an Appeal from a final determination that the Oak Ridge Operations Office (Oak Ridge) of the Department of Energy (DOE) issued on May 5, 2000. In its determination, Oak Ridge denied Mr. Donham’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 Oak Ridge to release the information it withheld.

Background

In an email dated April 11, 2000, Mr. Donham submitted a FOIA request to Oak Ridge for “a copy of the contracts between Steve Kay and the SSAB and Design Integration Group and the SSAB.” Email Request dated April 11, 2000, from Mark Donham to John Sheppard, Paducah Site Office, DOE. SSAB is the Paducah Site Specific Advisory Board, a local board of the DOE Environmental Management Site Specific Advisory Board. Email from Amy Rothrock, Oak Ridge, to Janet R. H. Fishman, Attorney-Examiner, Office of Hearings and Appeals (OHA) dated July 17, 2000, at 2 (July 17, 2000). The SSAB is a federally chartered advisory board under the Federal Advisory Committee Act. The Design Integration Group (DIG) is a subcontractor to Bechtel Jacobs Company, LLC (BJC), the prime contractor at the Paducah Site Office. Id. Finally, Steve Kay, also a subcontractor to BJC, is employed as the facilitator for the Paducah SSAB. Id. On May 5, 2000, Oak Ridge denied Mr. Donham’s request, stating that the contracts were not agency records and were in the possession of BJC. Determination Letter dated May 5, 2000, from Amy L. Rothrock, Authorizing Official, Oak Ridge, to Mark Donham.

In response, Mr. Donham filed this Appeal.(1) He argues that the SSAB is solely funded by the DOE and is federally chartered. Appeal Letter dated June 4, 2000, from Mark Donham to OHA, DOE. He believes that since the SSAB contracts he is requesting are solely funded by the DOE, he should be able to obtain copies of them. Id.

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 information Mr. Donham requested is copies of the contracts between Steve Kay and the SSAB and between DIG and the SSAB. Request Email. Mr. Donham asserts that the SSAB is solely funded by the DOE, and he believes that, therefore, DOE should disclose copies of the contracts to him. Appeal Letter. Oak Ridge has informed us that the SSAB does not have procurement ability. Memorandum of Telephone Conversation dated July 19, 2000, between Janet R. H. Fishman, Attorney-Examiner, OHA, DOE, and John Sheppard, Paducah Site Office, Oak Ridge, DOE (July 19, 2000 Telephone Conversation). Procurement for the SSAB support requirements are handled by the prime contractor, BJC, after consultation with DOE and the SSAB. Id. Oak Ridge has searched for copies of the contracts and not found them. Indeed, Oak Ridge is certain that it does not possess the contracts. Id. Therefore, we must address whether procurement records between BJC and a sub-contractor are subject to the FOIA.

To make this determination, we must first assess whether any such records are “agency records” for purposes of the FOIA. We have frequently held that prime contractors such as BJC are not government agencies. ChemData, Inc., 26 DOE ¶ 80,228 (1997) (outlining complete argument why the contractor’s procurement records are not subject to the FOIA). We find that the analysis we applied to Rocky Flats in the ChemData case is equally applicable here. Therefore, its procurement records are not “agency records.” Id. Next, we must determine whether the requested records are nevertheless subject to disclosure under section 1004.3(e) of our regulations. The DOE regulations state 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).

10 C.F.R. 1004.3(e)(1).

We therefore next look to the contract between DOE and BJC to determine the status of the withheld records. According to the contract, all “records relating to any procurement action by [BJC]” are contractor-owned records. Contract No. DE-AC05-98OR22700, Section 1-100.970.5204-79(b)(3). Under the FOIA, the record is therefore a contractor record, not an agency record, and it is not subject to the FOIA. We shall completely deny Mr. Donham’s appeal.

It Is Therefore Ordered That:

(1) The Appeal filed by Mark Donham, on July 6, 2000, Case No. VFA-0583, 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 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: August 1, 2000

(1)Mr. Donham’s Appeal was originally received on June 8, 2000 however, it did not contain a copy of the Determination Letter and was an incomplete filing. See 10 C.F.R. § 1004.8(b). Mr. Donham completed the filing on July 6, 2000.