Case No. VFA-0704

December 5, 2001

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Martin Becker

Date of Filing: October 29, 2001

Case Number: VFA-0704

On October 29, 2001, Martin Becker filed an Appeal from a determination that the Savannah River Operations Office (SROO) of the Department of Energy (DOE) issued to him on October 18, 2001. In that determination, SROO denied in part a request for information that Mr. Becker filed under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004. This Appeal, if granted, would require SROO to release the withheld information.

The FOIA generally requires that documents held by the federal government be released to the public upon request. However, Congress has provided nine exemptions to the FOIA that set forth the types of information agencies are not required to release. Under the DOE’s regulations, a document exempt from disclosure under the FOIA shall nonetheless be released to the public whenever the DOE determines that disclosure is not contrary to federal law and is in the public interest. 10 C.F.R. § 1004.1.

I. Background

In his FOIA request, Mr. Becker asked for any documents reflecting any notice of election to extend any Westinghouse Savannah River Company (WSRC) or affiliate lease of the premise at Centennial Corporate Center. In response to this request, SROO provided Mr. Becker a document entitled “Third Amendment to Lease.” This document relates to the leasing of Centennial Corporate Center by Westinghouse Safety Management Solutions LLC (WSMS), a subcontractor of WSRC. SROO withheld portions of the document pertaining to the amount of space leased and the rent charged pursuant to Exemption 4 of the FOIA. 5 U.S.C. § 552(b)(4). In its determination, SROO concluded that the document was voluntarily provided to the DOE by WSMS, and that under the relevant case law, such information is confidential, and can therefore be withheld under this Exemption, if “it is of a kind that the provider would not customarily make available to the public.” Critical Mass Energy Project v. NRC, 975 F.2d 871 (D.C.. Cir. 1992), cert. denied, 113 S. Ct. 1579 (1993) (Critical Mass).

In his Appeal, Mr. Becker contests the adequacy of SROO’s search for responsive documents. Specifically, he argues that SROO should also have provided copies of the original lease and the first and second amendments thereto. Moreover, Mr. Becker argues that SROO used an improper standard in determining that portions of the document were exempt from mandatory disclosure under Exemption 4. He contends that because the lease is the property of the federal government, it was not submitted by WSMS voluntarily, and that the Critical Mass standard is therefore inapplicable. He requests that SROO be instructed to provide all of the lease documents without redaction.

II. Analysis

We have been informed by SROO that it recently received the original lease and the first two amendments from WSRS, and that these documents will be released to Mr. Becker shortly, after any appropriate redactions are made. Therefore, the only remaining issue before us is whether SROO used the proper standard in making its Exemption 4 determination regarding the third amendment to the lease. For the reasons that follow, we find that it did not.

Exemption 4 shields from mandatory public disclosure “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” 5 U.S.C. § 552(b)(4). In order to qualify under Exemption 4, a document must contain either (a) trade secrets or (b) information which is “commercial” or “financial,” “obtained from a person,” and “privileged or confidential.” National Parks & Conservation Ass’n. v. Morton, 498 F.2d 765 (D.C. Cir. 1974) (National Parks). In National Parks, the United States Court of Appeals for the District of Columbia Circuit found that commercial or financial information submitted to the federal government is “confidential” for purposes of Exemption 4 if disclosure of the information is likely either (i) to impair the government’s ability to obtain necessary information in the future or (ii) to cause substantial harm to the competitive position of the person from whom the information was obtained. Id. at 770; Critical Mass. In Critical Mass, however, the court limited the National Parks test to information that was submitted to the government on an involuntary basis, while holding that information that is provided to an agency voluntarily is considered “confidential” if “it is of a kind that the provider would not customarily make available to the public.” Critical Mass, 975 F.2d at 879.

In a previous Decision issued to Mr. Becker, we found that the lease documents in question here were subject to the Contractor Records provision, 10 C.F.R. § 1004.3(e)(1), of the DOE regulations implementing the FOIA. That regulation states that

[w]hen a contract with the DOE provides that any records acquired or generated by the contractor in its performance of the contract shall be the property of the Government, the 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].

We concluded that WSRC’s contract with the DOE contained a provision that all documents acquired or generated by the contractor in the performance of its duties, with certain specified exceptions, shall be deemed the property of the DOE, that this provision was applicable to WSMS as a subcontractor, and that the lease documents did not fall under any of the specified exceptions. We therefore found that the documents were the property of the DOE, and we instructed SROO to review them and release any non-exempt material to Mr. Becker. Martin Becker, Case No. VFA- 0666 (September 7, 2001).

In previous cases involving the procurement process, we have consistently found information submitted in conjunction with a government contract to have been supplied on an involuntary basis. See, e.g., City of Federal Way, 27 DOE ¶ 80,191 (1999). In this case, WSMS entered into a contract that provided that certain documents, including the lease and its amendments, are the property of the DOE. Therefore, the contractor could not appropriately refuse a government request to produce these documents, and the lease and its amendments were consequently submitted on an involuntary basis. We will therefore remand this matter to SROO. On remand, SROO should apply the National Parks test in determining whether portions of the lease and its three amendments are exempt from mandatory disclosure.

It Is Therefore Ordered That:

(1) The Freedom of Information Act Appeal filed by Martin Becker, Case No. VFA-0704, on October 29, 2001, is hereby granted as set forth in paragraph (2) below.

(2) This matter is hereby remanded to the Savannah River Operations Office for the issuance of a new determination in accordance with the instructions set forth in the Decision.

(3) 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: December 5, 2001