Case No. VFA-0619, 28 DOE ¶ 80,124

November 8, 2000

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Northwest Technical Resources, Inc.

Date of Filing: October 11, 2000

Case Numbers: VFA-0619

On October 11, 2000, Northwest Technical Resources, Inc. (NTR) filed an Appeal with the Office of Hearings and Appeals (OHA) of the Department of Energy (DOE) in response to a determination that DOE’s Richland Operations Office (DOE/RL) issued to NTR on September 13, 2000. The determination concerned a request for information that NTR submitted pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by DOE in 10 C.F.R. Part 1004. The Appeal, if granted, would result in the release of any existing responsive material to NTR.

I. Background

On August 17, 2000, NTR filed a FOIA request with DOE/RL seeking information related to the award of a technical services contract between NTR and Bechtel Hanford, Inc. (BHI); information regarding the award of a contract between Kelly Temporary Services, Inc. (Kelly) and BHI; information related to a DOE/RL report about the contract between NTR and BHI, and information that states that NTR’s contract was supported by inadequate cost/price analysis. Letter from NTR to DOE/RL (August 17, 2000) (Request). DOE/RL released some information about the contract between NTR and BHI to NTR, but found no additional responsive information (some responsive information had been provided to NTR in response to an earlier request). Letter from DOE/RL to NTR (September 13, 2000). Further, DOE/RL informed NTR that the Kelly contract was between Kelly and Bechtel National, Inc., and was not an agency record. Id. NTR disagreed and filed this appeal, alleging that the Kelley-Bechtel National contract was in fact an agency record. Letter from NTR to OHA (October 11, 2000) (Appeal).

II. Analysis

Our threshold inquiry in this case is whether the material requested can be considered “agency records” and thus subject to the FOIA, under the criteria set out by the federal courts. Cf. 5 U.S.C. § 552(f) (describing the scope of the term “agency” under the FOIA). Second, records that do not meet these criteria can nonetheless be subject to release under the DOE regulations. 10 C.F.R. § 1004.3(e); see 59 Fed. Reg. 63,884 (December 12, 1994). For the reasons set forth below, we

conclude that the records in question are not “agency records” and that they are also not subject to release under the 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 fashioned by the courts for determining whether documents created by non-federal organizations, such as Bechtel National, Inc., are subject to the FOIA. See, e.g., International Brotherhood of Electrical Workers, 27 DOE ¶ 80,152 (1998); BMF Enterprises, 21 DOE ¶ 80,127 (1991); William Albert Hewgley, 19 DOE ¶ 80,120 (1989); Judith M. Gibbs, 16 DOE ¶ 80,133 (1987) (Gibbs). 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 Gibbs, 16 DOE at 80,595.

A. Bechtel National Is Not An Agency Under the FOIA

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 courts have identified certain factors to consider in determining whether we should regard an entity as an agency for purposes of federal law. In United States v. Orleans, 425 U.S. 807 (1976), a case that involved a statute other than the FOIA, the Supreme Court defined the conditions under which a private organization must be considered a federal agency as follows: “[T]he question here is not whether the . . . agency receives federal money and must comply with federal standards and regulations, but whether its day-to-day operations are supervised by the federal government.” Id. at 815. In other words, an organization will be considered a federal agency only where its structure and daily operations are subject to substantial federal control. See Ciba-Geigy Corp. v. Matthews, 428 F. Supp. 523, 528 (S.D.N.Y. 1977). Subsequently, the Supreme Court ruled that the Orleans standard provides the appropriate basis for ascertaining whether an organization is an “agency” in the context of a FOIA request for “agency records.” Forsham v. Harris, 445 U.S. 169, 180 (1980) (Forsham). See also Washington Research Project, Inc. V. HEW, 504 F.2d 238, 248 (D.C. Cir. 1974), cert. denied, 421 U.S. 963 (1975) (degree of independent governmental decision-making authority considered); Rocap v. Indiek, 539 F.2d 174 (D.C. Cir. 1976).

We find that Bechtel National, Inc., parent company of BHI, cannot be considered an agency under FOIA because Bechtel National is not subject to substantial federal control. BHI, a subsidiary of Bechtel National, has a contractual relationship with DOE as the Environmental Restoration Contractor (ERC) at the Hanford site. See Contract DE-AC06-93RL12367. BHI previously entered into subcontracts with local vendors, such as NTR, for office support for the Environmental Restoration Program. However, Bechtel National now contracts with Kelly to provide office support to BHI for the ER program. (1) See Memorandum of Telephone Conversation between Dorothy Riehle, DOE/RL and Valerie Vance Adeyeye, OHA (October 19, 2000). There is no contractual relationship between Bechtel National and DOE in this case. We therefore conclude that Bechtel National cannot be considered an “agency” subject to the FOIA.

B. The Records Were Not Within DOE’s Control At The Time Of Request

Although Bechtel National is not an agency for the purpose of the FOIA, its records relevant to NTR’s request could become “agency records” if DOE obtained them and they were within DOE’s control at the time NTR made its FOIA request. Department of Justice v. Tax Analysts, 492 U.S. 136, 144-46 (1989); see Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136 (1980); Forsham, 445 U.S. at 182. However, DOE/RL has informed us that the information that NTR seeks was not in the agency’s control at the time of the appellant’s request. See Memorandum of Telephone Conversation Between Dorothy Riehle, DO/RL and Valerie Vance Adeyeye, OHA (November 3, 2000). Based on these facts, the responsive documents clearly do not qualify as “agency records” under the test set forth by the federal courts. See Tax Analysts, 492 U.S. at 145-46; see also Forsham, 445 U.S. at 185-86.

C. There is No Contractual Relationship Between Bechtel National and DOE

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 DOE and the contractor provides that they 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).” 10 C.F.R. § 1004.3(e)(1).

As stated previously, there is no contractual relationship between Bechtel National and DOE. Therefore, we find that the requested records are not agency records and are not subject to release under DOE regulations.

It Is Therefore Ordered That:

(1) The Appeal filed on October 11, 2000 by Northwest Technical Resources, Inc. OHA Case No. VFA-0619, 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 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: November 8, 2000

(1)Section H-23 permits the ERC to “obtain direct support from affiliates to meet technical and staffing requirements . . . as approved by the Contracting Officer.” See Contract DE-AC06- 93RL12367.