784 F. Supp. 2d 15
D. Mass.2011Background
- Reich, a science journalist, sought FOIA release of the Pennycook Investigation reports from DOE/ORNL.
- ORNL is managed by UT-Battelle under a DOE contract; DOE owns property but UT-Battelle handles day-to-day operations.
- Pennycook investigation concluded no misconduct; an unsigned Draft Report and a Final Report with addendum existed.
- Roberto circulated the Draft Report to the DOE for review; meetings at DOE reviewed methodology and conclusions.
- DOE-OHA found the Investigation Report to be an agency record, but later DOE asserted Draft Report was not an agency record and withheld it.
- Reich filed suit May 2009 seeking to compel production, arguing the Draft and Final Reports are agency records; court later granted summary judgment for defendants and denied discovery.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is ORNL a proper FOIA defendant? | Reich treats ORNL as a FOIA defendant; seeks access via FOIA. | ORNL is not a federal agency; not a government-controlled corporation; not within FOIA scope. | ORNL not an agency; summary judgment for defendants on ORNL |
| Are the Draft and Final Reports agency records subject to FOIA? | Documents were obtained by DOE; DOE influence and control support agency status. | Draft and Final Reports are not agency records due to limited control and reading; not integrated into DOE files. | Neither Draft nor Final Reports are agency records; court lacks jurisdiction to order production; summary judgment for defendants |
Key Cases Cited
- Forsham v. Harris, 445 U.S. 169 (U.S. 1980) (agency records require agency control)
- U.S. Dep't of Justice v. Tax Analysts, 492 U.S. 136 (U.S. 1989) (control test for agency records; four-factor framework)
- Consumer Fed'n of Am. v. Dep't of Agric., 455 F.3d 283 (D.C. Cir. 2006) (integration and use/read relied upon as key factors)
- Citizens for Responsibility & Ethics in Wash. v. U.S. Dep't of Homeland Sec., 527 F. Supp. 2d 76 (D.D.C. 2007) (agency control factors; emphasis on reading/reliance)
- Red Cross, 640 F.2d 1051 (9th Cir. 1981) (private entity as not government-controlled despite funding)
- Gilmore v. United States Department of Energy, 4 F. Supp. 2d 912 (N.D. Cal. 1998) (day-to-day operations outside government control; Red Cross rationale)
- Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136 (U.S. 1980) (possession vs integration into agency records)
- Judicial Watch, Inc. v. Fed. Housing Fin. Agency, 744 F. Supp. 2d 228 (D.D.C. 2010) (emphasizes third/fourth factors in agency-record analysis)