Case No. VFA-0148, 25 DOE ¶ 80,190

May 6, 1996

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: William H. Payne

Date of Filing: April 11, 1996

Case Number: VFA-0148

On April 11, 1996, William H. Payne (Appellant) filed an Appeal from a determination issued on March 21, 1996, by the Department of Energy (DOE). In that determination, the Office of Contractor Employee Protection (OCEP) denied in part a request for information which the Appellant filed on August 24, 1994 under the Privacy Act, 5 U.S.C. § 552a, as implemented by the DOE in 10 C.F.R. Part 1008, and under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004. See Letter from GayLa D. Sessoms, Director, FOIA/Privacy Act Division, to Appellant (March 21, 1996) (Determination Letter). In his request, the Appellant sought from OCEP all documents containing his name which were generated after January 1993.<1>In response to that request, OCEP released over ninety documents to the Appellant under the FOIA, but under Exemption 6 of that Act, redacted a portion of one document, 35c, and withheld another document, 92b, entirely.<2>This Appeal, if granted, would require the DOE to release the withheld information.

ANALYSIS

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) (Washington Post). Furthermore, the term "similar files" has been interpreted broadly by the Supreme Court to include all information that "applies to a particular individual." Washington Post, 456 U.S. at 602. Thus, there is no doubt that the documents at issue in this case qualify as "similar files" under Exemption 6. See Jeffrey R. Leist, 25 DOE ¶ 80,159 at 80,651 (1996).

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 substantial privacy interest would be invaded by the disclosure of the record. If no privacy interest or if only a de minimis privacy interest is identified, the record may not be withheld pursuant to Exemption 6. Ripskis v. Department 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, 772-73 (1989) (Reporters Committee). Finally,

the agency must weigh the privacy interests it has identified against the public interest in order to determine whether release of the record would constitute a clearly unwarranted invasion of personal privacy. Ripskis, 746 F.2d at 3.

In this case, OCEP redacted a handwritten name from Document 35c and withheld Document 92b in its entirety, including its author's name. Document 92b is a memorandum which briefly discusses the Appellant's dealings with OCEP. According to the Determination Letter, disclosure of the withheld information could subject both individuals to "unwanted communications and other personal intrusions." See Determination Letter at 2. Further, because Ms. Schneider felt that the text of Document 92b would identify its author, she withheld the text as well. Id.

1. The Privacy Interest

Before we address the Exemption 6 balancing test, we note that the text of Document 92b can only be withheld under Exemption 6 if release would be tantamount to identification of its author. After carefully examining the document, it is unclear whether the memorandum's text clearly reveals its author. Assuming, however, that the text of the withheld document could be reasonably linked with its author, the text may only be potentially withheld if its author has a significant privacy interest in the withheld information. As discussed below, we find that the author does not have this type of interest.

In order to determine whether there is a privacy interest in the withheld information, we must determine whether release of this information might reveal something personal about the people involved. See News Tribune, 25 DOE ¶ 80,180 (1996). Thus, it is only when the release of some personal information about an individual would cause a "clearly unwarranted invasion of privacy" that the information may be exempt from mandatory release under the FOIA.

There are three possible privacy interests present in this case which might be impacted by release of the withheld information. First, there is the privacy interest in the names of these individuals. However, as we held in News Tribune, there is no privacy interest in a name itself, absent some other indicia about the individual. 25 DOE at 80,700. An invasion of privacy can become recognizable when a name is linked with some other information that reveals something personal about an individual. Department of State v. Ray, 502 U.S. 164, 176 & n.12 (1991) (Ray); Reporters Committee, 489 U.S. at 762; Professional Programs Group v. Department of Commerce, 29 F.3d 1349, 1354 (9th Cir. 1994); Multnomah County Medical Soc'y v. Scott, 825 F.2d 1410, 1415 (9th Cir. 1987). Therefore, we must examine the withheld information in the context with which it is associated; i.e. what release of the information would specifically reveal about those particular persons. See News Tribune, 25 DOE at 80,699; see also National Ass'n of Retired Fed. Employees v. Horner, 879 F.2d 873, 876 (D.C. Cir. 1989), cert. denied sub nom. National Ass'n of Retired Fed. Employees v. Newman, 494 U.S. 1078 (1990)(Horner).

In this case, both persons whose alleged privacy interests are at issue are linked with OCEP's mediation efforts between DOE and the Appellant. The second potential privacy interest at stake is that the author of Document 92b is linked with a discussion of the Appellant's communications with OCEP. These two potential privacy interests may be analyzed together. After carefully examining the withheld information, we conclude that neither of these interests is the type of "personal information" referred to in Rose. See 425 U.S. at 375 n.14. The aim of Exemption 6 is to guard against unnecessary disclosure of files "which would contain ?intimate details' of a ?highly personal' nature." New York Times Co. v. National Aeronautics and Space Administration, 782 F. Supp. 628, 631 (D.D.C. 1991) (citations omitted). Further, some material which is not strictly personal, but is nonetheless identifying, is protected if release could cause interference with personal privacy. See Southwest Resource Development, 24 DOE ¶ 80,164 (1995) (individuals involved in Inspector General's investigations protected under Exemptions 6 and 7(c)).

In applying these tests to the facts of the present case, we find first that the nature of the material withheld in the present case is not the type of strictly personal information usually protected by Exemption 6. See Department of Defense v. Federal Labor Relations Auth., 114 S. Ct. 1006 (1994) (home addresses); Ray (marital and familial status); Sangre de Cristo Animal Protection, Inc., 25 DOE ¶ 80,121 (1995) (Social Security numbers); A. Victorian, 25 DOE ¶ 80,111 (1995) (autopsy pictures); Foundation for Fair Contracting, 21 DOE ¶ 80,169 (1991) (names and addresses redacted from payroll records); Robert E. Caddell, 20 DOE ¶ 80,164 (1990) (some SF-171 information). Second, we are unable to find OCEP's fears of unwanted workplace intrusions to be a sufficient basis for withholding the material and names under Exemption 6. Generally, we do not consider workplace contacts concerning work-related matters to be unwarranted or substantial invasions. Further, we note that federal employees have a much smaller expectation of privacy than do private employees. See 5 C.F.R. § 293.311 (names, titles, grades, salaries and duty stations of civilian federal employees must be released); Stern v. Federal Bureau of Investigation, 737 F.2d 84 92 (D.C. Cir. 1984) ("[T]he status of the individuals in this case as federal employees diminishes their privacy interests . . . because of the corresponding public interest in knowing how public employees are performing their jobs").

Moreover, we do not find the text of Document 92b to be of such an inflammatory nature that a "substantial probability" of true intrusion is created. See Horner, 879 F.2d at 878. Rather, we find the wording of this document to be trivial and innocuous. Unless there is a substantial likelihood that the work-place communications will rise to the level of actual harassment, i.e., through the use of obscenities, threats, or other seriously abusive conduct or language, we simply cannot protect federal employees from communications from the public that they serve. Thus, we are unable to find that a privacy interest exists in this case.

2. The Privacy Interest/Public Interest Balance

In this case, we have been unable to discern any privacy interest in withholding any of the material redacted by OCEP. If there is no identifiable privacy interest, then information may not be withheld under Exemption 6. Ripskis, 746 F.2d at 3; J/R/A Associates, 24 DOE ¶ 80,165 at 80,655 (1995); William D. Lawrence, 24 DOE ¶ 80,139 at 80,600 (1994); Virginia Johnson, 23 DOE ¶ 80,168 at 80,664-65 (1993). Accordingly, we will remand this matter to OCEP to either release the withheld information or issue a new determination identifying some other privacy interest that justifies the continued withholding of this information.<3>

It Is Therefore Ordered That:

(1) The Freedom of Information Act Appeal filed by William H. Payne on April 11, 1996 (Case Number VFA-0148) is granted to the extent set forth in paragraph (2) below and is denied in all other respects.

(2) This case is hereby remanded to the Office of Contractor Employee Protection, which shall release the information withheld pursuant to Exemption 6 described above or issue a new determination justifying any withholding of this information in accordance with the above Decision.

(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 situated, or in the District of Columbia.

George B. Breznay

Director

Office of Hearings and Appeals

Date: May 6, 1996

<1>The Appellant had asked OCEP to mediate a settlement to resolve ongoing litigation between himself and DOE. See Record of Telephone Conversation between Dawn Koren, OHA Staff Attorney, and Sandra Schneider, Assistant Inspector General for Contractor Employee Protection, OCEP (April 16, 1996).

<2>Although the Appellant made his request under both the Privacy Act and the FOIA, OCEP correctly responded to this request exclusively under the FOIA. The Privacy Act requires, inter alia, that each federal agency permit an individual to gain access to information pertaining to him or her which is contained in any system of records maintained by the agency. 5 U.S.C. § 552a(d). DOE regulations define a system of records as "a group of any records under DOE control from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particulars assigned to the individual." 10 C.F.R. § 1008.2(m). In this case, because the two documents at issue were not a part of the Appellant's file at OCEP, they were never in a "system of records" subject to the Privacy Act. See Record of Telephone Conversation between Dawn Koren and Sandra Schneider (April 16, 1996). Therefore, OCEP analyzed this request solely according to the provisions of the FOIA. See Greentree v. United States Customs Service, 674 F.2d 74 (D.C. Cir 1982); Jeffrey L. Turek, 11 DOE ¶ 80,149 at 80,678 (1983).

<3>We note that, in the event OCEP attempts to justify the withholding of these names, it should consider whether there are different privacy interests at stake with respect to each of the withheld names.