January 14, 2011 DECISION AND ORDER OF THE DEPARTMENT OF ENERGY Appeal Name of Petitioner: Date of Filing: Case Number

: FOIA Group, Inc. December 9, 2010 TFA-0454

On December 14, 2010, the FOIA Group, Inc. (Appellant) perfected an Appeal from a determination issued to it on December 7, 2010, by the Office of Procurement and Assistance Management (Procurement) of the Department of Energy (DOE). In that determination, Procurement responded to a request for information that the Appellant had 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 its determination, Procurement withheld the requested information. In its Appeal, the Appellant challenges Procurement’s withholding. The Appeal, if granted, would require Procurement to release the requested information. I. Background On June 13, 2010, the Appellant requested “[a]ll Final Contractor Performance Rating Reports . . . for the most recently available 3 year period.” Request E-mail dated June 13, 2010, from Appellant to DOE. On December 7, 2010, Procurement responded to this request, withholding all responsive information pursuant to Exemption 3 of the FOIA. Determination Letter dated December 7, 2010, from Patrick M. Ferraro, Acting Director, Procurement, DOE, to Appellant. On December 14, 2010, the Appeal was finalized with our receipt of the Determination Letter. E-Mail from Alexander C. Morris, FOIA Officer, Office of Information Resources, DOE, to Janet Fishman, Office of Hearings and Appeals (OHA). In the Appeal, the Appellant claimed that first, Procurement erred by not segregating the specific rating scores. Appeal E-Mail dated December 9, 2010, from Appellant to (OHA). Second, the Appellant claimed that President Obama’s new FOIA doctrine requires a presumption of openness when administering the FOIA. Id. at 2. II. Analysis

-2Exemption 3 of the FOIA allows agencies to withhold information if specifically authorized by another federal statute. However, the authorizing statute must satisfy one of two criteria. It must either (i) require that the information be withheld from the public in such a manner as to leave no discretion on the issue, or (ii) establish particular criteria for withholding or refer to particular types of information to be withheld. 5 U.S.C. § 552(b)(3). The Supreme Court has established a two-prong standard of review for Exemption 3 cases. See CIA v. Sims, 471 U.S. 159, 167 (1985). First, the agency must determine whether the statute in question is a statute of exemption as contemplated by Exemption 3. Id. at 167. Second, the agency must determine whether the withheld material satisfies the criteria of the exemption statute. Id. We have previously found that the Procurement Integrity Act (PIA), 41 U.S.C. § 423, is a statute of exemption as contemplated by Exemption 3. See U.S. Ecology, Inc., 25 DOE ¶ 80,153 at 80,632 (1995); Energy Research Corp., 21 DOE ¶ 80, 130 at 80,600 (1991). The PIA is a federal statute that contains language specifically prohibiting the authorizing official from releasing protected information. In the PIA, Congress referred to the type of information that must be withheld as “source selection information.” 41 U.S.C. § 423(a)(1). However, Congress carefully identified documents that make up source selection information. 41 U.S.C. § 423 (f)(2)(A)-(J). Our next question is whether the information requested in this case falls under the definition of the PIA of “source selection information.” In pertinent part, the Act states The term “source selection information” means any of the following information prepared for use by a Federal agency for the purpose of evaluating a bid or proposal to enter into a Federal agency procurement contract, if that information has not been previously made available to the public or disclosed publicly. 41 U.S.C. § 423(f)(2). According to Procurement, the information requested is completed during the performance of a contract, not for the purpose of evaluating a bid or proposal to enter into a contract with the DOE. E-Mail dated January 12, 2011, from Edward Marceau to Janet Fishman, OHA, DOE. Therefore, we do not believe that this requested information falls under the definition of “source selection information,” as defined in the PIA. We note that Procurement also cites a provision in the Federal Acquisition Regulations (FAR) to withhold the requested information under Exemption 3. The FAR is not a statute and we cannot find any judicial support that it can be used under Exemption 3 to withhold information. Therefore, we will remand the matter to Procurement for a new determination either releasing the requested information or issuing a new justification that cites a statutory basis for withholding the information.

-3III. Conclusion For the reasons stated above, we will grant the Appeal and remand the matter to Procurement for a new determination. It Is Therefore Ordered That: (1) The Appeal filed by FOIA Group, Inc., Case No. TFA-0454, is hereby granted as specified in Paragraph (2) below and is denied in all other respects. This matter is hereby remanded to the Office of Procurement and Assistance Management of the Department of Energy, which shall issue a new determination in accordance with the instructions set forth in the above Decision. This is a final order of the Department of Energy from 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 in the district in which the requester resides or has a principal place of business, or in which the agency records are situated, or in the District of Columbia.



Poli A. Marmolejos Director Office of Hearings and Appeals Date: January 14, 2011

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