Case No. VFA-0640, 28 DOE ¶ 80,141

January 25, 2001

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner:Wiley, Rein & Fielding

Date of Filing:December 26, 2000

Case Number:VFA-0640

On December 26, 2000, Wiley, Rein & Fielding filed an Appeal from a determination the Manager of the Ohio Field Office of the Department of Energy (DOE) issued to it on November 22, 2000. In that determination, the Manager stated that she could not locate records responsive to a Freedom of Information Act (FOIA) request that Wiley, Rein & Fielding filed on November 3, 2000. The FOIA requires that a federal agency generally release documents to the public upon request. See 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004.

In its November 3, 2000 request for information, Wiley, Rein & Fielding sought copies of certified payroll records of any subcontractors to Fluor Fernald at the Fernald Environmental Management Project site for the years 1998 and 1999. In her determination, the Manager stated that no agency records exist regarding these certified payroll records. Wiley, Rein & Fielding contends that the DOE must have responsive records.

Analysis

In the Manager’s response to the Wiley, Rein & Fielding request, she determined that the payroll records were not DOE “agency records” because the records were the property of the contractor and not in the possession or control of the DOE at the time of the request. Wiley, Rein & Fielding states that Department of Labor regulations require government contractors to submit to the government the weekly payroll records for their employees and subcontractor employees. See 29 C.F.R. § 5.5(a)(3)(ii)(A). Furthermore, the firm states that the Federal Acquisition Regulation also requires government contractors involved in construction services that exceed $2,000 in value to submit employee payroll information to the government. See 48 C.F.R. § 52.222-8. Wiley, Rein & Fielding contends that, in light of these regulations, there must exist payroll “agency records” responsive to its request.

Our threshold inquiry in this case is whether the requested payroll records are "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 may 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 are subject to the FOIA. See, e.g., 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.

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).

Under its contractual relationship with the DOE, Fluor Fernald is the contractor responsible for maintaining and operating the Fernald Environmental Management Project. While the DOE obtained Fluor Fernald’s services and exercises general control over the contract work, it does not supervise the contractor’s day-to-day operations. See Contract No. DE-AC24-01OH20115. We therefore conclude that Fluor Fernald is not an "agency" subject to the FOIA.

Although Fluor Fernald is not an agency for the purposes of the FOIA, its records relevant to the Wiley, Rein & Fielding request could become "agency records" if the DOE obtained them and they were within the DOE's control at the time the firm made its FOIA request. Department of Justice v. Tax Analysts, 492 U.S. 136, 144-46 (1989); see Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136 (1980); Forsham, 445 U.S. at 182. In this case, while the contract between the DOE and Fluor Fernald requires that the contractor submit on a weekly basis the payroll records to the DOE Contracting Officer, we have determined that the records the firm seeks were not in the agency's control at the time of the firm's request. Although it is unclear if the DOE’s Contracting Officer reviewed these particular payroll records, the Manager’s representative informed us that, regardless, these records would have been returned to the contractor.(1) See January 18, 2001 Record of Telephone Conversation between Renee Holland, DOE Ohio Field Office, and Leonard M. Tao, OHA Staff Attorney. Since the Manager’s representative confirmed that the payroll records were not in the DOE’s control at the time of the firm’s request, these 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.

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 document in question is 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)(2)." 10 C.F.R. § 1004.3(e)(1).

We therefore next look to the contract between the DOE and Fluor Fernald to determine the status of the requested records. That contract generally states,

Except as is provided in paragraph (b) of this clause, all records acquired or generated by the Contractor in its performance of this contract shall be the property of the Government . . .

Contract No. DE-AC24-01OH20115, Section H.20 (a). Paragraph (b)(4) of the “Contractor’s Own Records” section of the contract states that the excluded category of contractor's records includes “Records and files pertaining to wages, salaries, benefits and benefit administration.” Furthermore, paragraph (b)(7) of this section states that “All records relating to any procurement action by the contractor” are considered contractor records. Since the subcontractor payroll records Wiley, Rein & Fielding requests are documents the contract states are contractor records, we find that the records sought by the firm are neither "agency records" within the meaning of the FOIA nor subject to release under the DOE regulations. Accordingly, we must deny the Wiley, Rein & Fielding Appeal.

It Is Therefore Ordered That:

(1) The Freedom of Information Act Appeal that Wiley, Rein & Fielding filed on December 26, 2000, Case No. VFA-0640, 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 provisions 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: January 25, 2001

(1)The contract between the DOE and Fluor Fernald does not require that the DOE keep the payroll records after the Contracting Officer has completed his review. See Contract No. DE- AC24-01OH20115.