29 August 1997
Source: William H. Payne
See related docments: http://jya.com/whpfiles.htm
Department of Energy
Washington, DC 20585
AUG 18 1997
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
William H. Payne
13015 Calle de Sandias, N.E.
Albuquerque, NM 87111
Re: Case No. VFA-0315
Dear Mr. Payne:
The Department of Energy has considered the Privacy Act Appeal that
you filed on July 21, 1997. As the enclosed Decision and Order
indicates, the DOE has determined that your submission be granted.
If you have any questions regarding this Decision and Order, please
contact Robert B. Palmer, Staff Attorney, Office of Hearings and
Appeals, at telephone number (202) 426-1573.
Sincerely,
[Signature]
George B. Breznay
Director
Office of Hearings and Appeals
Enclosure
Department of Energy
Washington, DC 20585
AUG 18 1997
DECISION AND ORDER
OF THE DEPARTMENT OF ENERGY
Appeal
Name of Petitioner: William H. Payne
Date of Filing: July 21, 1997
Case Number: VFA-0315
On July 21, 1997, William H. Payne filed an Appeal from a
determination issued to him by the Director of the Department of
Energy's Freedom of Information and Privacy Acts Division
(hereinafter referred to as "the Director"). This determination was
issued on June 23, 1997 in response to a request for amendment of
records that Mr. Payne submitted under the Privacy Act, 5 U.S.C §
552a, as implemented by the DOE in 10 C.F.R. Part 1008. This
Appeal, if granted, would require the DOE to amend a document
pertaining to Mr. Payne that he claims is located in a system of
records that is covered by the Privacy Act.
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
Act further provides that individuals may request amendment of
records pertaining to them. 5 U.S.C. § 552a(d)(2). Under the
Privacy Act, agencies may refuse to amend such records, but must
provide a reason for their refusal. 5 U.S.C. § 552a(d)(2)(B)(ii).
The DOE regulations implementing the Privacy Act set forth the
criteria for reviewing requests for amendment. 10 C.F.R.
§ 1008.10.*/
_________________
*/ Those criteria are (i) the sufficiency of the evidence
submitted by the individual, (ii) the factual accuracy of the
information, (iii) the relevance and necessity of the
information in relation to the purpose for which it was
collected, (iv) if such information i8 used in making any
determination about the individual, whether the information is
as accurate, relevant, timely, and complete as is reasonably
necessary to assure fairness to the individual in such
(continued...)
- 2 -
I. Background
Mr. Payne was an employee of Sandia Corporation (Sandia), which
operates Sandia National Laboratories as a DOE contractor. In his
Privacy Act request, Mr. Payne seeks to amend the minutes of a
Sandia Disciplinary Review Committee (SDRC) Meeting that occurred
on July 16, 1992. These minutes contain allegations of improper
behavior by Mr. Payne. In general, Mr. Payne contends that the
allegations of misconduct are false, or that the circumstances
surrounding his acts are different than those set forth in the
minutes.
In a response issued on June 23, 1997, the Director denied
Mr. Payne's request for amendment. The Director stated that,
pursuant to the contract between Sandia and the DOE, the minutes
are the property of Sandia, and are not maintained in a system of
records that is subject to the Privacy Act.
II. Analysis
The Privacy Act generally applies only to certain systems of
records maintained by federal agencies. 5 U.S.C. § 552a(a)(1).
However, when an agency provides by contract for the operation of
a system of records to accomplish an agency function, that agency
must follow the provisions of the Privacy Act with respect to that
system. 5 U.S.C. § 552a(m).
Article B-XXVI of Sandia's contract with the DOE requires Sandia to
comply with the Privacy Act in the design and operation of any
identified system of records on individuals when that system of
records is involved in the performance of a DOE function. Section
H-15 requires Sandia to design and operate a number of systems of
records to accomplish a list of agency functions pursuant to the
Privacy Act contract clause. Among these systems of records are:
DOE-5, Personnel Records of Former Contractor Employees; DOE-47,
Security Investigations; and DOE-48, Security Education and/or
Infraction Reports.
____________________
*/(...continued)
determination, (v) the degree of possibility that denial of
the request could unfairly result in a determination adverse
to the individual, (vi) the nature of the record sought to be
corrected or amended, and (vii) the propriety and feasibility
of complying with the specific means of amendment requested by
the individual.
- 3 -
In her determination, the Director stated that the document that
Mr. Payne seeks to amend is not maintained in a system of records
pursuant to the Privacy Act, and is the property of Sandia
according to the provisions of Sandia's contract with the DOE.
However, we have been informed that Sandia's Privacy Act systems of
records using Mr. Payne's identifier were not searched to locate a
copy of the SDRC minutes, and that the Director's statement that
the minutes are not part of a Privacy Act system of records was
based only on her general conclusion that document i8 the property
of Sandia pursuant to Section H-18(b) of Sandia's contract with the
DOE. See memorandum of August 12, 1997 telephone conversation
between Robert Palmer, OHA Staff Attorney, and Chris Morris,
FOIA/Privacy Acts Division.
We find that the Director has misinterpreted Section H-18(b). That
provision states, in pertinent part, that:
The following records acquired or generated by the
Contractor in its performance of the contract (to the
extent not listed and maintained as a Privacy Act record
pursuant to the Section H provision entitled 'Privacy Act
System of Records') are the property of the Contractor.
. . . (4) Employee relations records and files such as
records and files pertaining to . . . (ii) Allegations,
investigations, resolution of employee misconduct. .
Sandia contract, Section H-18(b) (emphasis added). The SDRC minutes
are clearly a record relating to the resolution of alleged employee
misconduct. However, as the italicized language confirms, this
listing of contractor records that are not subject to federal
control is explicitly made subject to the provisions of Section
H-15, which, as we previously stated, requires Sandia to maintain
certain identified systems of records that are covered by the
Privacy Act. Therefore, if the SDRC minutes are part of a Privacy
Act system of records, they are subject to the provisions of that
Act, including those pertaining to the amendment of documents.
In view of these circumstances, we will remand this matter to the
Director so that a thorough search of Sandia's Privacy Act systems
of records may be performed. If the SDRC minutes are located in a
Privacy Act system of records utilizing Mr. Payne's personal
identifiers, the Director or her designee should evaluate the
request for amendment pursuant to the provisions of 10 C.F.R. Part
1008.10. A revised determination indicating the results of the
search and including any evaluation of the request for amendment
should be issued to Mr. Payne within 30 days of the date of this
Decision.
- 4 -
It Is Therefore Ordered That:
(1) The Appeal filed by William H. Payne on July 21, 1997 is hereby
granted as set forth in paragraph (2) below.
(2) This matter is remanded to the Director of the FOIA/Privacy Act
Division for further proceedings in accordance with directions set
forth in this Decision.
(3) This is a final Order of the Department of Energy.
[Signature]
George B. Breznay
Director
Office of Hearings and Appeals
Date: AUG 18 1997
[End]