Frank M. Laiza, Case No. VFA-0645, January 29, 2001

Case No. VFA-0645, 28 DOE ¶ 80,143

January 29, 2001

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Frank M. Laiza

Date of Filing: January 2, 2001

Case Number: VFA-0645

On January 2, 2001, Frank M. Laiza filed an Appeal from a final determination that the Richland Operations Office (DOE/RL) of the Department of Energy (DOE) issued on December 5, 2000. In its determination, DOE/RL informed Mr. Laiza that it located no agency records responsive to the request for information he submitted under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004.

I. Background

Mr. Laiza is employed by a DOE contractor at the Department’s Hanford Site near Richland, Washington. In 1994, 1997, and 2000, Mr. Laiza filed employee concerns with his employer. On November 16, 2000, Mr. Laiza requested from DOE/RL copies of the concerns he filed in 1994 and 1997, “and all supporting documentation that was filed with them . . . .” Electronic Mail from Frank Laiza to Dorothy C. Riehle, DOE/RL (November 16, 2000). In its December 5, 2000 response to Mr. Laiza’s request, DOE/RL stated that it “conducted a thorough search of [DOE/RL] Office of Special Concerns (SCO) and no documents were located.” DOE/RL also informed Mr. Laiza that records of employee concerns filed with his employer were property of the employer under the contract between DOE and the employer. Letter from Marla Marvin, Director, Office of Intergovernmental, Public and Institutional Affairs, DOE/RL, to Frank Laiza (December 5, 2001). In his Appeal, Mr. Laiza contends that DOE/RL’s statement that it could locate no responsive documents contradicted what he was told in a July 11, 2000 conversation with a DOE/RL employee.(1) Mr. Laiza states he was told that “every employee concern written since the beginning of the employee concerns program, whether filed with DOE-RL or the contractor was on record at DOE-RL and could be obtained with a FOIA request.” Appeal at 1.

II. Analysis

A. Whether DOE/RL Conducted an Adequate Search for Responsive Documents

We have stated on numerous occasions that a FOIA request deserves a thorough and conscientious search for responsive documents, and we have not hesitated to remand a case where it is evident that the search conducted was in fact inadequate. See, e.g., Butler, Vines and Babb, P.L.L.C., 25 DOE ¶ 80,152 (1995). The FOIA, however, requires that a search be reasonable, not exhaustive. "[T]he standard of reasonableness which we apply to agency search procedures does not require absolute exhaustion of the files; instead, it requires a search reasonably calculated to uncover the sought materials." Miller v. Department of State, 779 F.2d 1378, 1384-85 (8th Cir. 1985); accord Weisberg v. Department of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984). In cases such as these, "[t]he issue is not whether any further documents might conceivably exist but rather whether the government's search for responsive documents was adequate." Perry v. Block, 684 F.2d 121, 128 (D.C. Cir. 1982) (emphasis in original).

Accordingly, we contacted DOE/RL and obtained the following information relevant to the search at issue in this case. The Office of Special Concerns (SCO) at DOE/RL tracks all employee concerns filed with DOE contractors at the Hanford site. This is done by means of periodic reporting to SCO by the contractors, telling SCO the case number assigned to the concern and the name of the contractor employee responsible for handling the concern. This does not mean that, as Mr. Laiza understood it, “every employee concern written since the beginning of the employee concerns program, whether filed with DOE-RL or the contractor was on record at DOE-RL and could be obtained with a FOIA request.” Appeal at 1. In general, an employee concern and supporting documentation is maintained by the DOE contractor with which it was filed, unless the concern becomes the basis for a complaint filed with DOE/RL’s SCO. Thus, in response to Mr. Laiza’s request, DOE/RL searched SCO, which had in its possession only one employee concern filed by Mr. Laiza. He filed that concern with his employer in 2000, and it subsequently became the subject of a complaint he filed with SCO. SCO informed us that the two previous concerns Mr. Laiza filed with his employer were not filed with SCO, and therefore SCO had no documents responsive to Mr. Laiza’s request.(2) Under these circumstances, we find that DOE/RL’s search was “reasonably calculated to uncover” the materials Mr. Laiza is seeking.

B. Whether Responsive Documents in the Possession of DOE Contractors are Subject to Release

To the extent that the records Mr. Laiza has requested are not in the possession of DOE/RL but are in the possession of DOE contractors, we find for the reasons below that those documents are not subject to release under the FOIA or DOE regulations. The FOIA is applicable only where the requested documents may be considered an “agency record” or, pursuant to DOE regulation, is otherwise deemed to be the property of the DOE by contractual provision.

The statutory language of the FOIA does not define "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 the courts have fashioned for determining whether documents created by non-federal organizations, such as WHC and FHI, are subject to the FOIA. See, e.g., Los Alamos Study Group, 26 DOE ¶ 80,212 (1997) (LASG). 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 LASG, 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, the entities that would be in possession of the employee concerns at issue are Westinghouse Hanford Corporation (WHC) (with respect to the 1994 concern) and Fluor Hanford, Inc. (FHI) (with respect to the 1997 concern). Although these two companies were contracted by the DOE to operate the Hanford site, the DOE did not supervise either contractor’s day-to-day operations. Memorandum of telephone conversation between Dorothy C. Riehle, DOE/RL, and Steven Goering, OHA (January 17, 2001). We therefore conclude that WHC and FHI are not "agencies" subject to the FOIA.

Although WHC and FHI are not agencies for the purposes of the FOIA, their records responsive to Mr. Laiza’s request could become "agency records" if DOE obtained them and they were within the DOE's control at the time Mr. Laiza made his FOIA request. Department of Justice v. Tax Analysts, 492 U.S. 136, 144-46 (1989) (Tax Analysts). However, as discussed above, none of the responsive documents at issue was in the DOE's control or possession at the time of the Appellant's request. Based on these facts, the documents do not qualify as "agency records" under the test set forth by the federal courts. See Tax Analysts, 492 U.S. at 145-46.

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 "[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" the FOIA. 10 C.F.R. § 1004.3(e)(1).

The relevant provisions in the WHC contract are as follows:

H-8 OWNERSHIP OF RECORDS

(a) Government records.

Except as 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, and shall be delivered to the Government or otherwise disposed of by the Contractor either as the Contracting officer may from time to time direct during the process of the work, or in any event, as the Contracting officer shall direct upon completion or termination of the contract.

(b) Contractor records.

The following records are considered the property of the Contractor and are not within the scope of paragraph (a) above.

. . . .

(2) Employee Assistance Program and Employee Concerns Program records and files maintained on individual employees; . . .

Contract No. DE-AC06-87RL10930.

DOE’s contract with FHI contains similar language providing that “[e]mployment-related records such as . . . employee concern program records” are “considered property of the Contractor . . . .” Contract No. DE-AC06-96RL13200 at H-34. Because the contracts in this case do not provide that employee concern records are property of the Government, such records are not subject to release under DOE regulations.

In sum, because we find that DOE/RL conducted an adequate search of records that would be subject to release under the FOIA or DOE regulation, the present Appeal will be denied.

It Is Therefore Ordered That:

(1) The Appeal filed by Frank M. Laiza on January 2, 2001, Case No. VFA-0645, 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 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 29, 2001

(1)Mr. Laiza also states that DOE/RL did not comply with the FOIA because it did not respond to his request within twenty working days as the Act requires. 5 U.S.C. § 552(a)(6)(A)(i). Whether DOE/RL responded within the time set forth in the FOIA statute and regulations is not an issue within our jurisdiction, 10 C.F.R. § 1004.8, and that issue is in any event now moot because DOE/RL has issued its response.

(2)SCO has not maintained the periodic reports from the contractors that would have contained the case numbers and name of the contractor employee responsible for addressing Mr. Laiza’s 1994 and 1997 employee concerns.