Case No. VFA-0734

MAY 2, 2002

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: David A. Hannum

Date of Filing: April 4, 2002

Case Number: VFA-0734

On April 4, 2002, the Office of Hearings and Appeals (OHA) received an Appeal that David A. Hannum filed from a determination issued to him by the Director of the Office of Intergovernmental, Public and Institutional Affairs at the Department of Energy’s (DOE) Richland Operations Office (hereinafter referred to as “the Director”). The Director issued his determination in response to a request for information under the Privacy Act of 1974 (PA), 5 U.S.C § 552a, as implemented by the DOE in 10 C.F.R. Part 1008. For purposes of administrative efficiency, the Director also processed Mr. Hannum’s requests under the Freedom of Information Act (FOIA), 5 U.S.C § 552, as implemented by the DOE in 10 C.F.R. Part 1004. The Appeal, if granted, would result in the release of a specified document to Mr. Hannum.

The Privacy Act permits individuals to gain access to their records or to information pertaining to them that is contained in systems of records maintained by the agencies. 5 U.S.C. § 552a(d)(1). The FOIA generally requires that documents held by federal agencies be released to the public upon request. 5 U.S.C. § 552.

I. Background

In his requests, Mr. Hannum sought access to all of his files that contain any derogatory information and all personnel files pertaining to his employment with Master Lee Hanford Corporation, a DOE subcontractor. In his response, the Director released three documents to Mr. Hannum and withheld a fourth. This document was located in the office of the legal counsel for Fluor Hanford, Inc., a DOE contractor. In justifying its withholding, the Director stated that according to Fluor Hanford, Inc.’s contract with the DOE, “legal records, including legal opinions, litigation files, and documents covered by attorney-client and attorney work product privileges are not government records and as such, are not subject to the provisions of the FOIA or the PA.” Director’s response at 1. In his Appeal, Mr. Hannum contests the withholding of this document.

II. Analysis

As previously stated, the PA allows individuals access to information contained in systems of records maintained by agencies. The FOIA generally requires the federal government to release agency records upon request. Therefore, our threshold inquiry is whether Fluor Hanford is an “agency” for purposes of the PA and the FOIA. We conclude that it is not.

An agency is defined as 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). Fluor Hanford is a privately owned and operated entity that has contracted with the DOE to manage the DOE’s Hanford facility. Because its day-to- day operations are not controlled by the DOE, it is not an “agency” within the meaning of the PA and the FOIA. Therefore, the document in question is not located in a system of records maintained by an agency and is thus not subject to the PA. Moreover, we have been informed that the document has never been in the possession and control of the DOE. See memorandum of April 21, 2002 telephone conversation between Robert Palmer, OHA Staff Attorney, and Dorothy Riehle, Richland Operations Office. Consequently, the document is not an “agency record” for purposes of the FOIA. See Department of Justice vs. Tax Analysts, 492 U.S. 136, 144-45 (1989) (Documents are “agency records” for FOIA purposes if they (1) were created or obtained by an agency, and (2) are under agency control at the time of the FOIA request).

A finding that the document is not an agency record, however, does not preclude the DOE from releasing it. “When 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 those records are otherwise exempt from public disclosure. 10 C.F.R. § 1004.3(e)(1). Accordingly, we have examined the relevant portions of the contract between Fluor Hanford and the DOE, and we conclude that under that agreement, Fluor Hanford’s legal files are the property of Fluor Hanford, and are not subject to release under the agency records regulation. Accord, William H. Payne, 26 DOE ¶ 80,161 at 80,700 (1997).

The Director correctly determined that the document at issue is not an agency record, and is not subject to disclosure under the PA, the FOIA, or under 10 C.F.R. § 1004.3(e)(1). We will therefore deny Mr. Hannum’s Appeal.

It Is Therefore Ordered That:

(1) The Appeal filed by David A. Hannum on April 4, 2002 is hereby denied.

(2) This is a final Order of the Department of Energy from which any aggrieved party may seek judicial review pursuant to 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 located, or in the District of Columbia.

George B. Breznay

Director

Office of Hearings and Appeals

Date: May 2, 2002