Case No. VFA-0632, 28 DOE ¶ 80,138

January 19, 2001

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeals

Names of Petitioners:Neil Mock and Scott Lebow

Dates of Filings: December 4, 2000

December 14, 2000

Case Numbers: VFA-0632

VFA-0637

On December 4, and December 14, 2000, Neil Mock and Scott Lebow (the Appellants) filed Appeals from two final determinations that the Idaho Operations Office (DOE-ID) of the Department of Energy (DOE) issued on October 25 and December 1, 2000. Those determinations concerned requests for information the Appellants submitted pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004. In the determinations, a number of documents were released to the Appellants in their entirety, other documents were released with portions redacted, and a number of documents were withheld in their entirety. In these Appeals, the Appellants are challenging DOE-ID’s withholding and redaction of a limited number of the over 150 documents involved in the requests. In addition, the Appellants are challenging DOE-ID’s determination that subcontractor personnel files are not agency records. If granted, this Appeal would require DOE-ID to produce the subject documents in their entirety.

I. Background

A brief background to the underlying facts will be useful in understanding the cases, which are being consolidated because of the similar subject matter for consideration in this determination. In August 1995, the Appellants filed claims with the DOE-ID Contractor Employee Protection Program pursuant to 10 C.F.R. Part 708, alleging that Lockheed Martin Idaho Technologies Company (Lockheed), the prime contractor at Idaho National Engineering and Environmental Laboratory (INEEL), and Coleman Research Company (Coleman), a subcontractor at INEEL, had retaliated against them for disclosing that Coleman and Lockheed had not complied with environmental statutes and the terms of their contracts with DOE. Once a complaint is filed under this program, the first step is to attempt to informally resolve the dispute. 10 C.F.R. § 708.7. DOE-ID requested that Lockheed and Coleman provide a response to the whistleblower complaints. Appeal Letter dated December 4, 2000, from Debra A. Hill, Osborn Maledon, Attorney for Appellants, to Director, Office of Hearings and Appeals (OHA), DOE (December 4, 2000 Appeal Letter).

In formulating their response, Coleman and Lockheed interviewed a number of employees. The attempt at informal resolution was unsuccessful, and the matter was referred to DOE Headquarters under the process outlined in the regulations. See 10 C.F.R. § 708.7(c). In two letters dated June 12, 2000,(1) the Appellants requested an extensive amount of information pursuant to the FOIA concerning their Employee Concerns files and their whistleblower complaints. Request Letter dated June 12, 2000, from Debra A. Hill, Osborn Maledon, Attorney for Appellants, to Carl R. Robertson, Freedom of Information Officer, DOE-ID; Request Letter dated June 12, 2000, from Debra A. Hill, Osborn Maledon, Attorney for Appellants, to FOIA/Privacy Act Division, DOE Headquarters. Among the documents requested were the Appellants’ personnel files at DOE-ID, Lockheed, and Coleman. Id. In order to provide the information to the Appellants more quickly, DOE-ID issued two determinations; the first determination dealt with a portion of the responsive information and the second determination dealt with the remainder of the responsive information, most of which was housed in DOE-ID archives. The October 25, 2000 Determination Letter released a number of documents but withheld others in their entirety relying on Exemptions 5 and 6 of the FOIA. Determination Letter dated October 25, 2000, from Nicole Brooks, FOI Officer, DOE-ID, to Debra A. Hill, Esq., Osborn Maledon, Attorney for Appellants (October 25, 2000 Determination Letter). The December 1, 2000 determination released a number of documents to the Appellants, but withheld their Coleman personnel files. Determination Letter dated December 1, 2000, from Nicole Brooks, FOI Officer, DOE-ID, to Debra A. Hill, Esq., Osborn Maledon, Attorney for the Appellants (December 1, 2000 Determination Letter). As an initial matter, DOE-ID noted that the personnel records were not in its possession. Id. Secondly, DOE-ID found that the documents are not agency records under the contract with Lockheed. Id.

On December 4 and 14, 2000, the Appellants filed these Appeals. Initially, in the December 4, 2000 Appeal, Case No. VFA-0632, the Appellants challenge DOE-ID’s withholding of Documents 12-17, 28-30, 59, 82-111, and 113-116 under both Exemptions 5 and 6. December 4, 2000 Appeal Letter. The Appellants claim there is not sufficient information to determine whether the documents can be withheld under Exemption 5. Id. Further, the Appellants claim that the Exemption must be construed as narrowly as possible and that DOE-ID did not indicate that the documents contained opinions or deliberations by which DOE-ID formulated a decision. Id. at 2. The Appellants also challenge the withholdings under Exemption 6, claiming that the only individuals with a privacy interest would be the Appellants. Id. at 3. Second, the Appellants challenge the withholding of Documents 19 and 21 under Exemption 5 (the attorney-client privilege).(2) Id. at 4, 5. The Appellants claim that since these documents were authored by a Coleman attorney and addressed to a Coleman employee, and vice versa, respectively, and in the possession of DOE, the attorney-client privilege has been waived. Id. Third, the Appellants challenge the redactions made to Documents 45, 46, and 48, claiming that one of the Appellants has already seen the unredacted documents and, in addition, the redactions are inconsistent. Id. at 5. Fourth, the Appellants challenge the withholding of Document 124 under Exemptions 5 and 6, claiming that DOE-ID has failed to provide sufficient information about the document to show that it is exempt from disclosure under the FOIA. Id.

Finally, in their December 14, 2000 Appeal, Case No. VFA-0637, the Appellants challenge DOE-ID’s finding that the Coleman personnel files are not agency records. Appeal Letter dated December 14, 2000, from Debra A. Hill, Osborn Maledon, Attorney for Appellants, to Director, OHA, DOE.

II. Analysis

A. Exemption 5

Exemption 5 protects “inter-agency or intra-agency memorandums or letters which would not be available by law to a party … in litigation with the agency.” 5 U.S.C. § 552(b)(5). The language of Exemption 5 has been construed to “exempt those documents, and only those documents, normally privileged in a civil discovery context.” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975) (Sears).

1. Deliberative Process

Included within the boundaries of Exemption 5 is the "predecisional" privilege, sometimes referred to as the "executive" or "deliberative process" privilege. Coastal States Gas Corporation v. Department of Energy, 617 F.2d 854, 862 (D.C. Cir. 1980) (Coastal States). The predecisional privilege permits the agency to withhold records that reflect advisory opinions, recommendations, and deliberations comprising part of the process by which government decisions and policies are formulated. Sears, 421 U.S. at 150. It is intended to promote frank and independent discussion among those responsible for making governmental decisions. EPA v. Mink, 410 U.S. 73, 87 (1973) (Mink); Kaiser Aluminum & Chemical Corp. v. United States, 157 F. Supp. 939 (Ct. Cl. 1958)).

In order to be shielded by Exemption 5, a record must be both predecisional, i.e., generated before the adoption of agency policy, and deliberative, i.e., reflecting the give-and-take of the consultative process. Coastal States, 617 F.2d at 866. The predecisional privilege of Exemption 5 covers records that typically reflect the personal opinion of the writer rather than the final policy of the agency. Id. Consequently, the privilege does not generally protect records containing purely factual matters.

There are, however, exceptions to this general rule. The first exception is for records in which factual information was selected from a larger collection of facts as part of the agency's deliberative process, and the release of either the collection of facts or the selected facts would reveal that deliberative process. Montrose v. Train, 491 F.2d 63 (D.C. Cir. 1974); Dudman Communications v. Department of the Air Force, 815 F.2d 1564 (D.C. Cir. 1987). The second exception is for factual information that is so inextricably intertwined with deliberative material that its exposure would reveal the agency's deliberative process. Wolfe v. HHS, 839 F.2d 769, 774-76 (D.C. Cir. 1988). Factual matter that does not fall within either of these two categories does not generally qualify for protection under Exemption 5.

In addition to providing categories of records exempt from mandatory disclosure, the FOIA requires that “any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection.” 5 U.S.C. § 552(b). Thus, if a document contains both predecisional matter and factual matter that is not otherwise exempt from release, the factual matter must be segregated and released to the requester.

DOE-ID has failed to provide a sufficient justification that the information contained in Documents 12-17, 28-30, 59, 82-111, 113-116, and 124 should be withheld under Exemption 5. These documents are primarily handwritten notes of interviews with personnel. October 25, 2000 Determination Letter. As an initial matter, we note that although these records were apparently generated by either Lockheed or Coleman, the documents could still be withheld under Exemption 5, if the documents became part of DOE-ID’s deliberative process and were used or relied upon to formulate a DOE decision or policy. However, DOE-ID’s determination is insufficient for us to concede that is the case here. DOE-ID must specifically address whether each of these documents was predecisional and deliberative. If a document meets this test, it may be withheld provided its release would stifle the communication within the agency or harm the agency’s deliberative process. DOE-ID did not explain fully how Exemption 5 applies to these documents. In this connection, I note that after DOE-ID referred the whistleblower matter to DOE Headquarters, DOE Headquarters dismissed the Appellants’ complaint because they had filed an action in Idaho District Court. Therefore, no final decision was issued in this matter that would have required DOE to rely upon or use these documents. However, the fact that no final determination was issued does not necessarily mean that the documents are not deliberative. If they demonstrate the normal give-and-take of an agency decision, they could be considered exempt under the FOIA. As an additional matter, DOE-ID did not segregate the factual information from these documents. Therefore, we will remand these documents for a new determination fully explaining how Exemption 5 applies to these documents. Even if DOE-ID finds that Exemption 5 applies, it must segregate the factual information from the documents.(3)

2. Attorney Work Product

The attorney work-product privilege serves to “provide working attorneys with a ?zone of privacy’ within which to think, plan, weigh facts and evidence . . . , and prepare legal theories.” Coastal States, 617 F.2d at 864. It protects documents prepared by an attorney in contemplation of litigation. Hickman v. Taylor, 329 U.S. 495, 509-10 (1947); Fed. R. Civ. P. 26(b)(3). This privilege is also applicable to material prepared by a non-attorney who was supervised by an attorney. Nishnic v. Department of Justice, 671 F. Supp. 771, 772- 73 (D.D.C. 1987). Finally, because factual work-product is not “routinely” or “normally” discoverable, it can also be protected under Exemption 5. See United States v. Weber Aircraft Corp., 465 U.S. 792, 799 (1984) (Weber); FTC v. Grolier, 462 U.S. 19, 26 (1983) (Grolier).

We agree with the Appellants that Documents 19 and 21 cannot be withheld under Exemption 5, because they are letters from a Coleman employee to a Coleman attorney and vice versa, respectively. However, we believe that these documents should be reviewed under Exemption 4 of the FOIA, which extends protection to documents that contain either (A) trade secrets or (B) information which is (1) “commercial or financial,” (2) “obtained from a person,” and (3) “privileged or confidential.” National Parks & Conservation Assn. v. Morton, 498 F.2d 765 (D.C. Cir. 1974) (National Parks).

We find that Documents 19 and 21 are commercial within the meaning of Exemption 4. Commercial includes anything “pertaining or relating to or dealing with commerce.” American Airlines, Inc. v. National Mediation Bd., 588 F.2d 863, 870 (2d Cir. 1978). In addition, the information was obtained from a person, as we consider corporations, such as Coleman, to be persons. Finally, the documents consist of information that is subject to the attorney-client privilege. Communication between a client, in this instance Coleman, and the client’s attorney are privileged. The attorney-client privilege protects “confidential communications between an attorney and his client relating to a legal matter for which the client has sought professional advice.” Mead Data Cent., Inc. v. Department of the Air Force, 566 F.2d 242, 252 (D.C. Cir. 1977). Release of these documents could impair the government’s ability to acquire these same types of documents in the future. The contractor could require an agreement in future contracts that this type of information would be contractor records as opposed to agency records, and refuse to allow DOE to see this type of information in the future. Because we are relying on the government impairment prong of Critical Mass Energy Project v. NRC, 975 F.2d 871, 879 (D.C. Cir. 1992), cert. denied, 113 S. Ct. 1579 (1993), we are not required to obtain the submitter’s views as to the application of Exemption 4 to the documents. Although it relied on Exemption 5 for withholding Documents 19 and 21, DOE-ID properly withheld the documents, because they are exempt from disclosure under Exemption 4.

B. Exemption 6

Exemption 6 shields from disclosure “[p]ersonnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C.§ 552(b)(6); 10 C. F. R. § 1004.10(b)(6). The purpose of Exemption 6 is to “protect individuals from the injury and embarrassment that can result from the unnecessary disclosure of personal information.” Department of State v. Washington Post Co., 456 U.S. 595, 599 (1982).

In order to determine whether information may be withheld under Exemption 6, an agency must undertake a three-step analysis. First, the agency must determine whether a significant privacy interest would be invaded by the disclosure of the record. If no privacy interest is identified, the record may not be withheld pursuant to Exemption 6. Ripskis v. Department of HUD, 746 F.2d 1, 3 (D.C. Cir. 1984). Second, the agency must determine whether release of the document would further the public interest by shedding light on the operations and activities of the government. See Hopkins v. Department of HUD, 929 F.2d 81, 88 (2d Cir. 1991); Department of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (1989) (Reporters Committee); FLRA v. Department of Treasury Financial Management Service, 884 F.2d 1446, 1451 (D.C. Cir. 1989), cert. denied, 110 S. Ct. 864 (1990). Finally, the agency must weigh the privacy interests it has identified against the public interest in order to determine whether the release of the record would constitute a clearly unwarranted invasion of personal privacy. Reporters Committee, 489 U.S. at 762-770. See also Frank E. Isbill, 27 DOE ¶ 80,215 (1999); Sowell, Todd, Lafitte and Watson LLC., 27 DOE ¶ 80,226 (1999) (Sowell).

DOE-ID applied Exemption 6 to Documents 12-17, 28-30, 59, 82-111, 113-116, and 124, to withhold the names of contractor employees in these handwritten notes. These notes were taken during interviews conducted by Coleman and Lockheed after the Appellants filed their retaliation complaint with DOE-ID. Applying these standards to the facts of this case, we believe that the individuals named in the handwritten notes have a significant interest in maintaining the confidentiality of their opinions and comments. Whether guaranteed confidentiality or not, these individuals would not want their opinions disseminated to the general public. It is our belief they would expect such opinions to be kept confidential within the confines of the DOE and its contractors. Dissemination of their names would lead to less candor in any whistleblower proceedings in the future. Also, individuals would want to be spared the embarrassment of being named in a whistleblower action. Cappabianca v. Commissioner, United States Customs Service, 847 F. Supp. 1558, 1564 (M.D. Fla. 1994) (witnesses and co-workers have substantial privacy interest in the nondisclosure of their participation in an investigation for Exemption 6 purposes). Therefore, we find that there is a significant privacy interest in the identities of contractor employees.

Next, release of this information would not further the public interest by shedding light on the operations of the federal government. Although the information might provide insight into the opinions of the Appellants’ co-workers, the identity of those individuals who were interviewed would not further the public interest as it would not shed light on the operations of the federal government.

Because there is a significant privacy interest in maintaining the confidentiality of the withheld information, and because it does not shed light on the operations of government, release of the contractor’s employees’ names would constitute a clearly unwarranted invasion of personal privacy. DOE-ID correctly applied Exemption 6 in withholding this information.

DOE-ID also applied Exemption 6 to Documents 45, 46, and 48. The Appellants challenge the redaction of names in these documents on a number of grounds. As an initial matter, the Appellants assert that one of the Appellants has seen two of the documents previously, as part of his employment. Therefore, he knows the documents’ content, including the names listed in them. The Appellants argue there is no privacy interest to be protected. However, we note that, according to the FOIA, once a document has been released to one requester pursuant to a FOIA request, the document must be released to subsequent requesters. Therefore, it is immaterial if the Appellant has already seen the documents. The identity of the requester is generally irrelevant when making a FOIA determination. Secondly, the Appellants believe that the redactions are inconsistent because not all names were redacted. However, names of non-supervisory or non-management contractor personnel may be redacted, as is the case with Documents 45 and 48, even when supervisors’ names are released. It should be noted that scope of a privacy interest under Exemption 6 will always be dependent on the context in which it has been asserted. Armstrong v. Executive Office of the President, 97 F.3d 575, 581 (D.C. Cir. 1996) (Armstrong). For example, civilian federal employees normally have no expectation of privacy concerning their names, titles, and similar information. See 5 C.F.R. § 293.311. However, the name of a federal employee involved in a workplace situation of a sensitive nature might be withheld pursuant to Exemption 6. See Armstrong, 97 F.3d at 582 (dicta indicating that FBI might be entitled in certain factual contexts to use a categorical rule protecting the names of FBI agents pursuant to Exemption 6). We agree with DOE-ID that a substantial privacy interest exists in the identities of private citizens due to the great potential that a commercial entity could misappropriate names for commercial purposes. The courts have also reached this conclusion. See Sheet Metal Workers v. Department Of Veterans Affairs, 135 F.3d 891 (3d Cir. 1998) (the disclosure of names, social security numbers, or addresses of government contractor employees would constitute an unwarranted invasion of personal privacy); Painting and Drywall Work Preservation Fund v. Department of Housing and Urban Dev., 936 F.2d 1300 (D.C. Cir. 1991) (the release of contractor employees’ names and addresses would constitute a substantial invasion of privacy). Therefore, we find that there is a substantial privacy interest in the identities of these contractor employees.

DOE-ID informs us that no names were redacted from Document 46. However, the copy of the document sent to us by the Appellants does appear to contain redactions. DOE-ID indicated that the original document was highlighted and when copied, the highlighted portions may appear to be redactions. In addition, in its list of documents, DOE-ID indicated that Document 46 contains redactions. On remand, we will order DOE-ID to provide the Appellants with the best available copy of that document, so that they can read those names that are highlighted on the original. We find, however, that DOE-ID properly withheld the names of the non-supervisory or non-management contractor personnel listed on Documents 45 and 48.

C. Agency Records

The Appellants are appealing DOE-ID’s determination that the Coleman personnel records are not “agency records.” DOE-ID has stated that it does not possess the Coleman personnel records. It has contacted Coleman and asked for the records, but Coleman has declined. We will examine the Appellants’ contention that the documents in question are agency records and that DOE-ID 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 Coleman, 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 Coleman was a contractor for Lockheed, the DOE did not conduct extensive, detailed, and day-to-day supervision of its operations. We therefore conclude that Coleman is not an "agency" within the meaning of the FOIA.

Although Coleman 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 possession or control at the time of the FOIA request. Department of Justice v. Tax Analysts, 492 U.S. 136, 144-46 (1989) (Tax Analysts). As stated previously, none of the responsive documents at issue was in the DOE's control or possession at the time of the request. 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)." 10 C.F.R. § 1004.3(e)(1).

In 1999, Lockheed transferred management of INEEL to Bechtel BWXT Idaho, LLC (Bechtel). Under the terms of the transfer agreement, Lockheed was to transfer to Bechtel all documents acquired or generated pursuant to the performance of the Lockheed contracts, except records maintained by Lockheed(4) after September 30, 1999, including personnel files of employees transferring to Lockheed Contracts Close Out Offices. 1999 Idaho National Engineering and Environmental Laboratory Transfer Agreement dated September 14, 1999, at 5.B., at 3. This would appear to mean that Lockheed, and by reference Coleman, was required to turn over its personnel records to Bechtel. If that had occurred, the records would then be available to DOE-ID. However, DOE-ID does not have the records and, under the FOIA, we cannot order that it produce documents that are not in its possession. There may be remedies at law to obtain such documents, but the FOIA is not one of them.

III. Conclusion

DOE-ID failed to provide sufficient justification for withholding the information contained in Documents 12-17, 28-30, 59, 82-111, 113-116, and 124, under Exemption 5. In addition, DOE-ID did not segregate the factual information from these documents. We will remand for a new determination fully justifying why these documents are exempt from disclosure under Exemption 5 and we will require that DOE-ID segregate the factual material. Although DOE-ID relied on Exemption 5 and the attorney-client privilege to withhold Documents 19 and 21, we believe these documents should be withheld under Exemption 4 and the attorney-client privilege. Therefore, we uphold DOE-ID’s withholding of Documents 19 and 21. DOE-ID properly invoked Exemption 6 to withhold names and other personnel identifiers in Documents 12-17, 28-30, 45, 48, 59, 82-111, 113-116, and 124 and Documents 45 and 48. It should provide the Appellants with the best possible copy of Document 46, so that they can read the names highlighted in the original. Finally, DOE-ID cannot produce the Coleman personnel records because it does not have possession of them and did not have them at the time of the request. Based on the reasons stated above, we will remand the Appeal to DOE-ID to review Documents 12-17, 28-30, 59, 82-111, 113- 116, and 124. DOE-ID should segregate all factual information and issue a new determination fully justifying their withholding under Exemption 5. It must also produce its best copy of Document 46. The Appeal is denied in all other respects.

It Is Therefore Ordered That:

(1) The Appeal filed on December 4, 2000, by Neil Mock and Scott Lebow, Case No. VFA-0632, is hereby granted as specified in Paragraph (2) below, and is denied in all other respects.

(2) This matter is hereby remanded to the Idaho Operations Office of the Department of Energy which shall issue a new determination in accordance with the instructions set forth in the above Decision.

(3) The Appeal filed on December 14, 2000, by Neil Mock and Scott Lebow, Case No. VFA-0637, is hereby denied.

(4) 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 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: January 19, 2001

(1)One letter was sent to the FOI Office at DOE-ID. The other letter was sent to FOIA/Privacy Act Division at DOE Headquarters. Since the requests were almost identical, the Appellants agreed that DOE-ID could handle the requests. Determination Letter dated October 25, 2000, from Nicole Brooks, FOI Officer, DOE-ID, to Debra A. Hill, Esq., Osborn Maledon, Attorney for Appellants (October 25, 2000 Determination Letter)

(2)The Appellants also challenge the withholding of Document 18. However, Document 18 will not be considered in this Appeal as DOE-ID has determined that it should be released to the Appellants.

(3)We note that the handwritten notes that DOE-ID withheld are virtually illegible. In order to withhold any portions of the document under Exemption 5, DOE-ID must be able to read them well enough to determine which portions are segregable and releasable and which portions fall within the protection of Exemption 5.

(4)In this contract, Lockheed is referred to as LMITCO, a term which included its Teaming Partners and other Team Members. Although the Appellants argue that Coleman is not necessarily included in that definition, December 4, 2000 Appeal Letter at 2, DOE-ID states that the definition included Coleman. Memorandum from Nicole Brooks, FOI Officer, DOE-ID, to Janet R. H. Fishman, Attorney-Examiner, OHA, DOE, dated December 12, 2000. We believe that since DOE-ID is the most knowledgeable party about this, and we accept its assertion that Coleman was covered by the transfer agreement.