Case No. VFA-0630, 28 DOE ¶ 80,135

January 4, 2001

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Supplemental Order

Name of Petitioner: John Michael Unfred, P.C.

Date of Filing: June 22, 2000

Case Number: VFA-0630

On July 28, 2000, the Office of Hearings and Appeals (OHA) of the Department of Energy (DOE) granted in part a Freedom of Information Act appeal filed by John Michael Unfred, P.C. (Unfred) in response to a determination that the Albuquerque Operations Office of the DOE (DOE/AL) issued to Unfred on April 18, 2000. Unfred requested information relating to certain Cooperative Research and Development Agreements (CRADAs) between the DOE and a private company. DOE/AL contacted the company in order to give that firm an opportunity to identify proprietary information. The firm identified all of the Statements of Work contained in the CRADAs as proprietary, and DOE/AL withheld that material from Unfred. OHA remanded the matter to DOE/AL to identify and release any segregable, non-exempt information in the Statements of Work to Unfred. John Michael Unfred, P.C., 28 DOE ¶ 80,104 (2000).

Subsequent to the issuance of the July 28, 2000 decision, it has been brought to our attention that DOE guidelines for drafting CRADAs indicate that proprietary information in a Statement of Work contained in a CRADA must be clearly marked as proprietary. The Statements of Work that were withheld from Unfred had no such markings. Thus, we find that the Statements of Work in the CRADAs under review cannot be considered proprietary and therefore are not exempt from disclosure pursuant to the FOIA on that basis. On remand, DOE/AL must release the Statements of Work in their entirety or provide a detailed explanation for continuing to withhold them on some other ground.

It Is Therefore Ordered That:

(1) The Decision and Order of July 28, 2000, OHA Case No. VFA-0581, is hereby amended as set forth above.

(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: January 4, 2001