March 14, 2002

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Anjan Majumder

Date of Filing: February 11, 2002

Case Number: VFA-0715

This Decision and Order concerns an Appeal that Anjan Majunder from a determination issued to him by the Department of Energy’s (DOE) Idaho Operations Office. The determination responded to a request for information 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. In the determination, the Idaho Operations Office released some responsive information. The Appeal, if granted, would require the DOE to release a specific document to Mr. Majumder.

I. Background

Mr. Majumder filed a request in which he sought information concerning the criteria that Bechtel BWXT Idaho LLC at Idaho National Engineering and Environmental Laboratory (BWXT) used to make the determination as to which employees to layoff under BWXT’s involuntary separation plan.

On December 10, 2001, the Idaho Operations Office issued a determination which provided Mr. Majumder with a copy of a document entitled “Process for Making Selection Decisions.” He was informed that BWXT used the analysis criteria contained in that document in the layoff determination process. He was further informed that a copy of the completed evaluation analysis for each of the employees was never provided to DOE and as such is not an “agency record” subject to the FOIA. See February 12, 2002 Memorandum of Telephone Conversation between Nicole Brooks, Idaho Operations Office, and Toni Brown, OHA. On appeal Mr. Majumder seeks a copy of the evaluation analysis BWXT used in its decision to lay him off.

II. Analysis

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 document 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 BWXT, 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). BWXT is an entity that does not fit into any of these categories. However, the courts have found that some outside entities should still be considered agencies for FOIA purposes. 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, 190 & N. 11 (1980) (citing United States v. Orleans, 425 U.S. 807 (1976)). In the present case, although BWXT was a contractor for DOE, the DOE did not conduct extensive, detailed, and day-to-day supervision of BWXT’s operations. We therefore conclude that BWXT is not an “agency” within the meaning of the FOIA.

Although BWXT is not an agency for the purposes of the FOIA, its records relevant to Mr. Majumder’s request could become “agency records” if the DOE obtained them and they were within the DOE’s control at the time Mr. Majumder made his FOIA request. Department of Justice v. Tax Analysts, 492 U.S. 136, 144-46 (1989) (Tax Analysts). In this case, the completed evaluation analysis regarding Mr. Majumder was not in the DOE’s control or possession at the time of the request. See February 14, 2002 Memorandum of Telephone Conversation between Dale Claflin, BWXT’s FOIA Representative, and Toni Brown, OHA. Rather, it was found in BWXT’s files. Based on these facts, the document does not qualify as an “agency record” 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 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).” 10 C.F.R. § 1004.3(e)(1).

We therefore next look to the contract between the DOE and BWXT to determine the status of the requested record.

Contract No. DE-AC07-99ID13727, Section I.61, Paragraph (b) of the contract states that the “following records are considered the property of the contractor . . . (1) Employment-related records, . . . except for those records described by the contract as being maintained in Privacy Act System of records.” The record sought here is not contained in any Privacy Act system of records described in the contract. See Contract No. DE-AC07-99ID13727, Section H.9. Consequently, it is a contractor-owned record, if it exists, and not “the property of the Government.” We therefore find that the record sought by Mr. Majumder is neither an “agency record” within the meaning of the FOIA nor subject to release under the DOE regulations.

III. Conclusion

As stated above, Idaho stated in its determination letter that it did not have the document sought by Mr. Majumder. Nothing raised in Mr. Majumder’s Appeal causes us to question Idaho’s determination. Based on our findings above, we conclude that this document, if it does exist, would not be an agency record within the meaning of the FOIA, and would not be deemed DOE property by the contract. Consequently, we conclude that the document is not subject to release pursuant to the FOIA or DOE regulations. We will accordingly deny this Appeal.

It Is Therefore Ordered That:

(1) The Appeal filed by Mr. Anjan Majumder, Case No, VFA-0715, 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: March 14, 2001