Case No. VFA-0769

October 15, 2002

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Joseph H. Blair

Date of Filing: September 9, 2002

Case Number: VFA-0769

This Decision and Order concerns an Appeal that Joseph H. Blair filed from a determination issued to him by the Department of Energy’s (DOE) Savannah River Operations Office (SR). 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. The Appeal, if granted, would require the SR to release a specific document to Mr. Blair.

I. Background

Mr. Blair, an employee of Bechtel Savannah River Site, filed a request in which he sought copies of all information in files concerning him that are in the possession of “Nurse Nancy [Bolin],” the Bechtel Savannah River Company’s Safety nurse. The one document that forms the basis for his appeal pertains to a workman’s compensation claim.

On August 1, 2002, the Savannah River Operations Office (SR) issued a determination letter regarding Mr. Blair’s request. Savannah River’s determination letter stated that a search had been conducted and no documents responsive to Mr. Blair’s request could be found. See Determination Letter. On September 9, 2002, Mr. Blair filed his Appeal with the Office of Hearings and Appeals. In the Appeal, Mr. Blair challenges the adequacy of the search conducted by SR. He alleges that Ms. Bolin allowed him to see the workman’s compensation document, but did not allow him to make a copy. Mr. Blair was informed that the document was an Intra-Office Memorandum addressed to Ms. Bolin. See September 19, 2002 Memorandum of Telephone Conversation between Nancy Bolin, Nurse for Bechtel, and Toni Brown, OHA. On Appeal Mr. Blair seeks a copy of the document. We have determined that the document he seeks does exist. However, the issue before us is whether the document should be released to Mr. Blair pursuant to the FOIA.

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 Bechtel, 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). Bechtel, as a public corporation, does not fit into any of the Section 552(f) 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 Bechtel was a contractor for DOE, the DOE did not conduct extensive, detailed, and day-to-day supervision of Bechtel’s operations. We therefore conclude that Bechtel is not an “agency” within the meaning of the FOIA.

Although Bechtel is not an agency for the purposes of the FOIA, records relevant to Mr. Blair’s request could become “agency records” if the DOE obtained them and they were within the DOE’s control at the time Mr. Blair made his FOIA request. Department of Justice v. Tax Analysts, 492 U.S. 136, 144-46 (1989) (Tax Analysts). In this case, the document at issue was not in the DOE’s control or possession at the time of the request. See September 5, 2002 Memorandum of Telephone Conversation between Pauline Conner, SR’s FOIA Representative, and Toni Brown, OHA. Rather, it was found in Bechtel’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 mandatory 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 Westinghouse Savannah River Company, LLC,(1) to determine the status of the requested record.

Contract No. DE-AC09-96SR18500 (republished as Modification No. M068), Section I.88, Paragraph (b) of the contract states that the “following records are considered the property of the contractor . . .

(1) Employment-related records (such as workers’ compensation files; employee relations records, records on salary and employee benefits; drug testing records, labor negotiation records; records on ethics, employee concerns, and other employee related investigations conducted under an expectation of confidentiality; employee assistance program records; and personnel and medical/health-related records and similar files), and non-employee patient medical/health related records, except for those records described by the contract as being maintained in Privacy Act systems of records.

The document at issue is an employment-related record. It is not contained in any Privacy Act system of records. See Contract No. DE-AC09-96SR18500. Consequently, it is a contractor-owned record, and not “the property of the Government.” We therefore find that the record sought by Mr. Blair is neither an “agency record” within the meaning of the FOIA nor subject to release under the DOE regulations.

III. Conclusion

As stated above, SR stated in its determination letter that it did not have the document sought by Mr. Blair. Nothing raised in Mr. Blair’s Appeal causes us to question SR’s determination. Based on our findings above, we conclude that this document is not an agency record within the meaning of the FOIA, and is not considered DOE property by the relevant 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 Joseph H. Blair, Case No, VFA-0769, 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: October 15, 2002

(1)This contract defines “the Contractor” as the following parties, which form the performing entity on which this contract was based: Westinghouse Savannah River Company, Bechtel Savannah River, Inc., BWXT Savannah River Company and BNFL Savannah River Corporation.