Case No. VFA-0620, 28 DOE ¶ 80,128
November 30, 2000
DECISION AND ORDER
OF THE DEPARTMENT OF ENERGY
Appeal
Name of Appellant:Heart of America, Northwest
Date of Filing:October 27, 2000
Case Number: VFA-0620
Heart of America, Northwest ("Heart of America") filed this Appeal in response to a determination issued to it by the Department of Energy's Richland Operations Office (Richland). The determination concerns a request for records that Heart of America submitted pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the Department of Energy at 10 C.F.R. Part 1004. In its Appeal, Heart of America requests the release of additional material responsive to its request. As explained below, we will deny the Appeal.
BACKGROUND
In May 2000, Heart of America sent Richland a request for copies of certain records pertaining to a contract between British Nuclear Fuels, PLC, (BNFL) and the DOE's Office of River Protection (ORP).(1) The contract, denominated "TWRS Privatization Contract No. DE-AC06-RL13308," (the "contract"), dealt with waste treatment and immobilization services at the DOE's Hanford site.
In determination letters issued on June 23 and September 5, 2000, Richland responded by sending Heart of America copies of some requested records, and by stating that it did not have the other requested records. Heart of America then filed the present Appeal,
claiming that Richland had improperly withheld documents it had in its possession.(2)
Heart of America had organized its FOIA request into six items, with some of the items further broken down into categories of records. It has appealed Richland's response to three of its items. We will discuss each item separately below.
HEART OF AMERICA'S APPEAL
1. Item 1
In Item 1 of its request, Heart of America asked for various records "relating to costs projected to be incurred by ... BNFL for waste treatment services pursuant to [the contract] and elements of proposed fixed price for unit of treated waste...." Item 1 was subdivided into a number of categories. Category E of Item 1 requested "review of A-8/Fixed Unit prices, including disclosures of rate increases to Congress, the State of Washington, the Hanford Advisory Board, Heart of America Northwest or the public."
Richland replied by releasing responsive documents for most of the categories under Item 1. With regard to Category E, however, Richland stated that it had no responsive documents.
In its Appeal of this response, Heart of America argues that Richland "improperly claims that the documents they do have in their possession are not responsive because they were not generated by the agency and are consequently not agency records. This is an erroneous interpretation of the [FOIA] statute and an improper attempt to withhold a proper request under the act."
2. Item 3
Under Item 3 of its request, Heart of America asked for projected price and cost elements and potential increases in price from the original contract figures. Richland responded that "there was no documented information between BNFL ... and ... ORP that is responsive to this portion of your request. BNFL ... notified ORP's management verbally for the first time in early April 2000 that the price could exceed the contract target."
Heart of America appealed Richland's response to Item 3 by arguing that Richland "did not assert a specific FOIA exemption as a legal basis for refusing to disclose the requested information. Rather, [Richland] improperly claims that the documents they do have in their possession are not responsive because they were not generated by the agency and are consequently not agency records."
3. Item 6
Under Item 6 of its request, Heart of America asked for records dealing with subcontracts and allowable costs incurred by BNFL or related companies for public relations, lobbying, or public communications in support of the contract. Richland responded that "ORP has no responsive documents. This information was not a BNFL ... deliverable and therefore not an agency record or subject to the FOIA."
Heart of America appealed this response by claiming that the records requested under Item 6 "were all costs that BNFL, Inc., and its subcontractors were seeking reimbursement for and were in the possession of ... ORP. Consequently, they are agency records ... and must be made available."
ANALYSIS
Heart of America has assumed that Richland has the documents in question, but is withholding them on the ground that they are not "agency records." Richland, however, has stated only that it does not have the documents in question. Nevertheless, we will examine Heart of America's contention that the documents in question are agency records and that Richland should therefore have them.
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."
The language of the FOIA does not define the term "agency records," but merely lists examples of the types of information agencies must make available to the public. 5 U.S.C. § 552(a). In interpreting the phrase "agency records," we have applied a two-step analysis for determining whether documents created by non-federal organizations, such as BNFL, are subject to the FOIA. See, e.g., Los Alamos Study Group, 26 DOE ¶ 80,212 (1997). 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." Los Alamos Study Group, 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 BNFL was a contractor for ORP, the DOE did not conduct extensive, detailed, and day-to- day supervision of BNFL's operations.(3) We therefore conclude that BNFL is not an "agency" within the meaning of the FOIA.
Although BNFL is not an agency for the purposes of the FOIA, its records could become "agency records" if DOE obtained them and they were within the DOE's control at the time of the 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 request.(4) Based on these facts, the documents do not qualify as "agency records" under the test set forth in Tax Analysts.
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 "when 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 contract between BNFL and ORP does not contain a clause that explicitly provides for the ownership of various records. It provides only that certain specified "deliverables" become the property of the government. The documents requested by Heart of America are not included among the "deliverables," as stated in the determination letter, and therefore would be, if they exist, contractor-owned records and not government records.(5)
CONCLUSION
As noted above, Richland stated in its determination letter that it did not have certain documents requested by Heart of America. Nothing raised in Heart of America's Appeal causes us to question Richland's determination. However, Heart of America argues in its Appeal that Richland withheld these documents on the ground that they were not agency records. Based on our findings above, we conclude that these documents, if they exist, would not be agency records within the meaning of the FOIA, and would not be deemed DOE property by the contract. Consequently, we conclude that the documents are not subject to release pursuant to the FOIA or DOE regulations. We will accordingly deny this Appeal.
It Is Therefore Ordered That:
(1) The Appeal filed by Heart of America, Northwest, Case No. VFA- 0620, 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: November 30, 2000
(1) The Office of River Protection is an agency of the Department of Energy. It was established in 1998 to safely manage tank waste retrieval, treatment, and disposal at the DOE's Hanford site.
(2) Heart of America also expressed its disapproval that Richland responded by referring to internet addresses for certain documents rather than providing the documents themselves. However, after Heart of America filed this Appeal, Richland issued a new determination letter, releasing paper copies of the documents that were referred to by internet address in the first two determination letters. Thus, we need not consider Heart of America's objection to receiving internet addresses.
(3) Telephone statement of Dorothy Riehle, Office of Public Affairs and Information to Warren Gray of the Office of Hearings and Appeals, November 16, 2000.
(4) Id.
(5) Id.