Case No. VFA-0711

March 1, 2002

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner:Mr. Dallas Register

Date of Filing:January 8, 2002

Case Number: VFA-0711

On January 8, 2002, Mr. Dallas Register filed an appeal of a determination issued on October 30, 2001, by the Albuquerque Operations Office (Albuquerque) of the Department of Energy (DOE) under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by DOE in 10 C.F.R. Part 1004. As detailed below, we shall deny the appeal filed by Mr. Register because the records at issue are not agency records.

Background

Mr. Register filed a FOIA request with DOE seeking documents related to a comparative analysis study. On October 30, 2001, the Albuquerque FOIA Officer issued a determination in response to Mr. Register’s request which indicated that the DOE Kansas City Area Office had been unable to locate any documents that were responsive to the FOIA request. The Albuquerque FOIA Officer also indicated that:

It has been determined that the documents you are requesting are records contained in the legal files of Honeywell FM&T at the Kansas City Plant, are in the possession and control of Honeywell FM&T and are, therefore, not ?agency records’ subject to the provisions of the FOIA. ?Agency records’ are defined as records in a federal agency's possession and control at the time of the FOIA request. However, pursuant to U.S. Department of Energy (DOE) policy, records in the possession and control of a management and operating contractor, such as those mentioned above, will be made available by DOE when the contract specifically provides that such records are the property of the Government. However, the contract between the DOE and Honeywell FM&T clearly defines the records that you have requested as belonging to them and not the DOE. Accordingly, these records are also not subject to release under DOE policy.

Mr. Register appealed this determination on the grounds that the documents he requested should be in the DOE Contracting Officer’s file because they are necessary to establish the contractor’s compliance with the “substantially equivalent benefits” requirement contained in DOE’s Request for Proposal (RFP) for managing the Kansas City Plant. Mr. Register also claimed that Albuquerque should have provided the requested document to him because the contract between the contractor and DOE provides that DOE has the right to inspect and copy all records acquired or generated by Honeywell FM&T (Honeywell) under this contract.(1)

Analysis

For the reasons set forth below, we conclude that the records in question are not "agency records" and are also not subject to release under the DOE regulations. Our threshold inquiry in this case is whether the requested documents 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). 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 of (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 to 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, Honeywell is the contractor responsible for maintaining and operating the Kansas City Plant. Contract No. DE-AC04-01AL66850. While DOE obtained Honeywell's services and exercises general control over the contract work, it does not supervise the contractor’s day-to-day operations. We therefore conclude that Honeywell is not an "agency" subject to the FOIA.

Although Honeywell is not an agency for the purposes of the FOIA, the records requested by Mr. Register could have become "agency records" if they had been obtained by DOE and were within the agency’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 order to determine whether DOE had obtained these records and whether they were in the control of the agency at the time of Mr. Register's FOIA request, we contacted Terry Apodaca, a FOIA Officer at Albuquerque, about the search that had been conducted for responsive documents. Ms. Apodaca informed us that she had asked the Contracting Officer in the Albuquerque Office of Contracts and Procurement to search for documents that were responsive to Mr. Register's FOIA request, and that the Contracting Officer in Albuquerque told her that:

they knew [that the record requested by Mr. Register] was a record belonging to Honeywell . . . and that Honeywell never sent them a copy but in order to be responsive and to show good faith, they searched their administrative files on Honeywell. No responsive documents could be located.

Ms. Apodaca also indicated that the Kansas City Area Office had searched the administrative files of its Office of the Director and Legal Counsel, but could not locate any documents that were responsive to Mr. Register's FOIA request.

We also contacted Patrick Currier, counsel for the Kansas City Area Office, to determine whether Honeywell had submitted the documents sought by Mr. Register to the DOE Contracting Officer. Mr. Currier explained that Honeywell was the only entity that submitted a proposal for the management of the Kansas City Plant, and that DOE had awarded the contract to Honeywell without discussion. Mr. Currier also told us that he had participated in a discussion about “substantially equivalent benefits” between Honeywell and DOE human resources people in Albuquerque and Kansas City. Mr. Currier indicated that this discussion occurred after the contract was awarded and, at the time of this discussion, DOE did not have a copy of the documents sought by Mr. Register. Mr. Currier also indicated that, after he received the FOIA request, he checked with DOE human resources people in Albuquerque and Kansas City and confirmed that they had never had a copy of the requested records. Mr. Currier also informed us that counsel for Honeywell told him that the documents at issue were not paid for by DOE funds but were paid for by Honeywell’s main office. Based on the above information, we find that the records sought by Mr. Register had not been obtained by DOE at the time of the FOIA request. As such, the documents sought by Mr. Register never became "agency records."(2)

Even though these records are not agency records, they may still be subject to release under the DOE regulations if “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.” 10 C.F.R. § 1004.3(e)(1). Although the contract between Honeywell and DOE contains such a provision, the provision is inapplicable because the requested records were not acquired or generated by the contractor in the performance of the contract.(3) Accordingly, we find that the records sought by Mr. Register are neither "agency records" within the meaning of the FOIA nor subject to release under the DOE regulations.

It Is Therefore Ordered That:

(1) The Freedom of Information Act Appeal that Dallas Register filed on January 8, 2002, OHA Case No. VFA-0711, 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: March 1, 2002

(1)Because we hold that the records at issue are not agency records and that the contractual provision on inspection and copying contained in the contract between Honeywell and DOE is inapplicable, it is unnecessary to determine whether the release of the documents sought by Mr. Register would violate the privacy rights of other individuals.

(2)Mr. Register also contends that the records he seeks are agency records because, under the contract with Honeywell, DOE has the right to inspect and copy these records. We disagree. It is clear that DOE’s ability to access and copy records that are owned by DOE contractors does not transform such records into agency records under the FOIA. See The Cincinnati Enquirer, 26 DOE ¶ 80,205(1997).

(3)We also note that because these documents were not acquired or generated by the contractor under the contract, DOE is not entitled to inspect and copy these documents under Section 113(d) of the contract between Honeywell and DOE.