Case No. VFA-0036, 25 DOE ¶ 80,111

May 22, 1995

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner:A. Victorian

Date of Filing:April 24, 1995

Case Number: VFA-0036

On April 24, 1995, Dr. A. Victorian (Appellant) filed an Appeal from a final determination issued to him on March 23, 1995 by the Albuquerque Operations Office of the Department of Energy (DOE/AL). In that determination, DOE/AL released three packets of documents responsive to Appellant's request under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the Department of Energy (DOE) in 10 C.F.R. Part 1004. DOE/AL identified a fourth packet of documents as responsive to Appellant's request, but withheld them pursuant to 5 U.S.C. § 552(b)(6) (Exemption 6). See also 10 C.F.R. § 1004.10(b)(6). This Appeal, if granted, would require DOE/AL to release the withheld information.

I. Background

On November 13, 1974, Karen Silkwood died in an automobile accident while en route to talk to a reporter about possible radioactive contamination at the plutonium processing plant in Cimarron, Oklahoma, where she worked. This plant was operated by Kerr-McGee, a subcontractor for the Atomic Energy Commission (AEC), a predecessor of the DOE, through the AEC's Hanford, Washington facility. The plant manufactured plutonium fuel pellets for an experimental "breeder" reactor. Kerr-McGee closed the plant in 1975. The circumstances surrounding Silkwood's death and possible radiation contamination attracted wide-spread interest, leading to a Congressional investigation of the Cimarron plant and Kerr-McGee, a lengthy law suit, media scrutiny of both the incident and the nuclear industry generally, and speculation by the news and entertainment media about a government cover-up. On March 25, 1994, the Appellant filed a FOIA request with DOE/AL for "a copy of all documents, findings, reports compiled by LANL [Los Alamos National Laboratory] or other DOE components on the study of KAREN SILKWOOD's bones withheld in the LANL." (Emphasis in the original.)

In response to this request, a search was conducted of the LANL and four packets of documents were identified as responsive to the Appellant's request. Three of these were:

1) A letter dated February 18, 1994, and attachments from Alan C. McMillan, former leader of the LANL Human Studies Project, to Billie Silkwood, Karen Silkwood's father.

2) A letter dated March 19, 1979, from J.W. Healy, apparently of the LANL, to Robert Yoder of the Rocky Flats Area Office.

3) An undated "Karen Silkwood Case Summary."

See Letter of Gloria E. Inlow, Acting Director, Office of Intergovernmental and External Affairs, DOE/AL (denying official), March 23, 1995 (final determination). These documents were released to the Appellant. The final determination also identified a number of responsive documents which dealt with the autopsy of Karen Silkwood and the disposal of her remains. This group of documents included: correspondence with Billie Silkwood, Karen Silkwood's father, regarding the disposal of the remains; an inventory of organs and tissue samples received by LANL; copies of the lab notebook and other records of LANL scientists who conducted tests for radioactive materials in Karen Silkwood's remains, including a description of the original autopsy results, descriptions of the processes used and immediate impressions of results; and a report, dated February 6, 1975, apparently prepared for the Nuclear Regulatory Commission, entitled "Summary Report of Evaluation of Biomedical Aspects of the Kerr-McGee Personnel Contamination Incident Reported November 7, 1974." The denying official concluded that these documents contained "sensitive, personal information to the surviving family members" and therefore withheld them under Exemption 6. Id.

Appellant argues that there is a strong public interest in the details surrounding Karen Silkwood's death. Appeal of Dr. A. Victorian, April 24, 1995 (Appeal Letter). The Appellant notes the ongoing public and media scrutiny of both the United States nuclear industry and the government's involvement in it that was sparked by Silkwood's death. Id. Therefore, the Appellant contends, the public interest in releasing this material should outweigh any privacy considerations of Karen Silkwood's next of kin. Id.

II.Analysis

While the FOIA generally requires that information held by government agencies be released to the public upon request, Congress has provided nine exemptions to the FOIA which set forth the types of information agencies are not required to release. Only Exemption 6 is at issue here. Exemption 6 shields from disclosure "[p]ersonnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6); 10 C.F.R. § 1004.10(b)(6). The purpose of Exemption 6 is to "protect individuals from the injury and embarrassment that can result from the unnecessary disclosure of personal information." Department of State v. Washington Post Co., 456 U.S. 595, 599 (1982); see also Morrison & Foerster, 24 DOE ¶ 80,107 (1994).

In order to determine whether a record may be withheld under Exemption 6, an agency must undertake a three step analysis. First, the agency must determine whether or not a significant privacy interest would be invaded by the disclosure of the record. If no privacy interest is identified, the record may not be withheld pursuant to Exemption 6. Ripskis v. Depaptment of Hous. and Urban Dev., 746 F.2d 1, 3 (D.C. Cir. 1984) (Ripskis). Second, the agency must determine whether or not release of the document would further the public interest by shedding light on the operations and activities of the government. See Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 773 (1989) (Reporters Committee). See also Joyce E. Economus, 23 DOE ¶ 80,182 (1994). Finally, the agency must weigh the privacy interests it has identified against the public interest in order to determine whether the release of the record would constitute a clearly unwarranted invasion of personal privacy. Ripskis, 746 F.2d at 3.

A. Privacy Interest

The denying official found a strong privacy interest in the withheld documents, in that releasing the information would distress close associates or the next of kin of Karen Silkwood. Final determination at 1. In the past, we have found that while a right of privacy is not generally heritable, the next of kin of the deceased do have a privacy right in information pertaining to the deceased. See Morrison & Foerster, 24 DOE at 80,517; Thurm & Heller, 20 DOE ¶ 80,104 (1990). Accord, Marzen v. HHS, 825 F.2d 1148, 1154 (7th Cir. 1987) (holding that a family has a privacy interest in preventing disclosure of medical records). We have, however, held that this privacy interest is narrower than generally applicable under Exemption 6. "The scope of the privacy interest is narrower under these circumstances-- the test being whether release of the information would cause survivors injury, embarrassment or undue emotional distress." Thurm & Heller, 20 DOE at 80,513. See also Badwhar v. Department of the Air Force, 829 F.2d 182, 186 (D.C. Cir. 1987) ("some autopsy reports...would shock the sensibilities of surviving kin.")

We find that the denying official correctly identified a privacy interest under Exemption 6. In the past, we have held that documents relating to the body of the deceased have a very strong privacy interest for surviving relatives, given the special religious and emotional attachment in our society for the bodies of loved ones. Independent Documentary Group, 7 DOE ¶ 80,174 (1981) (IDG); KUTV, Inc., 4 DOE ¶ 80,150 (1979) (KUTV) (release of autopsy report and pictures of deceased "would certainly be a substantial invasion of privacy, which Congress sought to avoid by adoption of Exemption 6"). We therefore agree that a substantial privacy interest exists in the unreleased documents, which include the autopsy report and details regarding the disposal of Karen Silkwood's remains.

B. Public Interest in Disclosure

Once a privacy interest is identified, we must balance that interest against the public interest in releasing the document. Reporters Committee, 489 U.S. at 772-73. In Reporters Committee, the Supreme Court greatly narrowed the scope of public interest in the FOIA. The Court distinguished between the benefits to the public which may result from the release of information and those benefits that Congress sought to provide the public when it enacted the FOIA. The Court found that, in FOIA contexts, the public interest in disclosure must be measured in terms of its relation to the FOIA's core purpose. Id. The Court identified the core purpose of the FOIA as "public understanding of the operations and activities of the government." Id. at 775. Therefore, the Court held, only that information which contributes significantly to the public's understanding of the operations or activities of the government is within "the ambit of the public interest which the FOIA was enacted to serve." Id. The Court therefore found that unless the public would learn something directly about the workings of the government from the release of the document, its disclosure is not "affected with the public interest." Id. See also Morrison & Foerster, 24 DOE at 80,518.

In his Appeal, Dr. Victorian argues that there is substantial public interest in the information pertaining to Karen Silkwood. We agree. It is true that, in the past, we have found that detailed personal information of this nature has not added to the public interest. See, e.g., IDG, 7 DOE at 80,812-13; KUTV, 4 DOE at 80,809. However, even in cases of this nature, we have made no categorical determination but rather have limited ourselves to a fact-based review and balancing test. Id. <1> In the present case, several public interest groups and individuals have continued to raise questions about the manner in which the government conducted its investigation of Karen Silkwood's death.

The autopsy was performed by a team that included at least one LANL employee, under the authority of the Chief Medical Examiner for the State of Oklahoma. Subsequent testing of remains was performed at LANL by LANL personnel. Therefore, the withheld descriptions of the autopsy and subsequent tests on tissue samples, recorded at the time the tests were conducted and detailing the steps taken by the investigators, may shed significant light on the government's operations and activities. They could provide information on what was known regarding the death and possible contamination of Karen Silkwood, who knew it, and when these facts were discovered. They also may shed light on the manner in which the government conducted its investigation. In addition, the lab notebook includes handwritten notes dated 1979, 1986 and 1987. This information may provide insight into the government's conduct in this matter by indicating the extent to which the government performed additional tests on Karen Silkwood's remains long after her death.

While it is true Karen Silkwood was but one individual, we have held in the past that the manner in which the government treats even one individual can shed light on government operations and activities. See James L. Schwab, 21 DOE ¶ 80,154 (1991). Indeed, given the ongoing public concern about the government's handling of this case, the withheld documents seem to us to be the sort of information that the FOIA was meant to reveal. It may well permit the people "to know what their government is up to." Reporters Committee, 489 U.S. at 773.

C. The Balancing Test

Just as the identification of a privacy interest under Exemption 6 does not mean that a document will automatically be withheld, the identification of a public interest in the information does not guarantee that the document will be released. Under Reporters Committee, an agency must balance any existing privacy right against the public interest in releasing the information. Id. at 772. Based on the record before us, however, we find no evidence that the denying official identified the public interest in the information or sought to balance the public interest against the properly identified privacy interest in the information. In the past, we have required the denying official to clearly state the factors considered in balancing an interest in privacy against the public interest in the information, and to articulate his motivation to strike the balance in a particular way. Center for Community Action, 20 DOE ¶ 80,120 (1990) (CCA). This requirement is important, because it provides the Appellant with the information necessary to understand the determination reached and to prepare an effective Appeal. It also provides us with the information necessary to review the determination in light of the general presumption favoring disclosure inherent in the FOIA. Id. at 80,559-60. See also Mead Data Central, Inc. v. Department of the Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977).

III.Conclusion

Since the required balancing has not been performed, we will remand this matter to the denying official with instructions to balance the properly identified privacy interest of Karen Silkwood's surviving kin with the public interest in releasing information on the government's handling of the investigation. See CCA, 20 DOE at 80,560. On remand, the denying official should consider whether elements of the withheld material can be redacted to preserve the privacy interest of surviving kin while providing sufficient insight into the manner in which the government conducted the investigation of Karen Silkwood's death.

It Is Therefore Ordered That:

(1)The Freedom of Information Act Appeal filed by A. Victorian on April 24, 1995, Case No. VFA-0036, is hereby granted as set forth in Paragraph (2) below and denied in all other respects.

(2)This matter is remanded to the Office of Intergovernmental and External Affairs, Albuquerque Operations Office, which shall conduct a new evaluation of the withheld material consistent with the analysis set forth in this Decision and Order.

(3)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 22, 1995

<1>Both IDG and KUTV were decided before Reporters Committee and used a broader definition of public interest, i.e. whether the information would contribute to the public understanding generally. IDG, 7 DOE at 80,812-13; KUTV, 4 DOE at 80,809. We held, however, that the pictures and autopsy report would not add any new information, and that therefore there was only a minimal interest in releasing the information. Id.