Case No. VFA-0183, 26 DOE ¶ 80,101

July 22, 1996

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Appellant: Richard Joslin

Case Number: VFA-0183

Date of Filing: June 21, 1996

Richard Joslin (Joslin) files this appeal under the Freedom of Information Act (FOIA), 5 U.S.C. § 552. Pursuant to the FOIA, Joslin had requested a copy of an investigative report written by the audit staff at the Bonneville Power Administration (BPA). In response, BPA informed Joslin that it found a responsive document, but would withhold it in its entirety. Joslin's appeal, if granted, would require BPA to release all or part of the responsive document.

Background

The FOIA generally provides that any person has a right of access to federal agency records, except to the extent that the records (or portions of them) are protected from disclosure by one of nine exemptions or three special law enforcement exclusions.

The report requested by Joslin investigated allegations of impropriety by an official at a BPA site. BPA responded to Joslin's request in a Determination Letter dated June 12, 1996. In the letter, BPA informed Joslin that it would withhold the document under the provisions of Exemption 5 of the FOIA, 5 U.S.C. Section 552(b)(5). BPA further explained that it was asserting the deliberative process privilege of Exemption 5 to withhold the report.

Analysis

Exemption 5 protects "inter-agency or intra-agency memorandums or letters which would not be available by law to a party … in litigation with the agency." 5 U.S.C. § 552(b)(5). The language of Exemption 5 has been construed to "exempt those documents, and only those documents, normally privileged in a civil discovery context." NLRB v. Sears Roebuck & Co., 421 U.S. 132, 149 (1975).

Courts have recognized several privileges incorporated into Exemption 5, including the deliberative process privilege which is asserted here by BPA. To fall within the scope of the deliberative process privilege, a document must be: (1) predecisional, that is, antecedent to the adoption of an agency policy; and (2) deliberative, that is, recommending or expressing an opinion on legal or policy matters. Mapother v. Department of Justice, 3 F. 3d 1533, 1537 (D.C. Cir. 1993); Petroleum Info. Corp. v. United States Dep't of the Interior, 976 F.2d 1429, 1434 (D.C. Cir. 1992); Jordan v. United States Dep't of Justice, 591 F.2d 753, 774 (D.C. Cir. 1978); Vaughn v. Rosen, 523 F.2d 1136, 1143-44 (D.C. Cir. 1975).

Joslin's position is that the deliberative process privilege does not apply because the report is not predecisional. In his Appeal Letter, he contends that "there has been no communication on [the] part of the Agency that this report is not final or that another report (final report) will be issued in the future."

Contrary to Joslin's assertion, BPA clearly claims in its Determination Letter that the report is "a predecisional document that … provides information to BPA management… While this report presents an analysis, it does not reflect any final decision by BPA." We confirmed by telephone that the report was compiled to assist BPA management in deciding what action to take regarding the allegations of impropriety. Moreover, the BPA management has not reached that decision, and may require further investigation. We therefore conclude that the report is predecisional.

To qualify for protection under Exemption 5, the report must be deliberative as well as predecisional. In the determination letter, BPA implied that the report is deliberative, explaining that "BPA management will determine how it will use this report in any future decisions." We examined a copy of the report to assess the validity of BPA's claim.

The report consists of three parts: a brief background section, summaries of statements by witnesses, and a conclusion. The witness statements reflect the recollections, opinions, and interpretations of the employees. The report makes no finding of fact. Such unsworn statements of witnesses, in which they give personal opinions and speculations, have been found to be deliberative.Cooper v. Dep't of Navy, 558 F. 2d 274 (5th Cir. 1977); aff'd on reh'g, 594 F. 2d 484 (1979); cert. denied, 444 U.S. 926 (1979). We conclude that the summaries of witness statements are deliberative and fall within the scope of Exemption 5. Moreover, the conclusion of the report summarizes the witness statements and suggests a possible course of action for the management of BPA. The conclusion is therefore also predecisional and deliberative.

We find therefore that the report requested by Joslin is a draft document, portions of which are predecisional and deliberative. It thus meets the threshold requirements for the deliberative process privilege. Nevertheless, not all documents falling within the scope of the deliberative process privilege may be withheld. The Attorney General's Memorandum of October 24, 1993 established a standard that promotes discretionary disclosure of records under the FOIA. To comply with the Memorandum, we must decide whether disclosure of the requested information would cause foreseeable harm to the deliberative process.

BPA's Determination Letter did not address the question of foreseeable harm resulting from release of the report. Nevertheless, Carol Jacobson of BPA's Legal Department supplemented the Determination by relating BPA's foreseeable harm analysis in a telephone statement to the OHA on July 3, 1996. As a result of Jacobson's statement and our examination of the report, we find several factors that point to foreseeable harm resulting from releasing the draft report in its entirety.

The subject matter of the documents is highly sensitive, involving charges of serious misconduct by a BPA employee. The process of resolving those charges requires total confidentiality on the part of BPA. Since further investigation may be required, releasing witnesses' statements at this time may influence future testimony. Furthermore, since the witnesses comprise a small group of coworkers, release of their testimony at this time could discourage some of them from testifying candidly in future investigations. Moreover, release of the witnesses' versions of events could give the false impression that the DOE has made a finding that their versions are facts. We conclude that release now could cause foreseeable harm to the DOE's investigative, deliberative, and decision-making processes.

In applying any FOIA exemption, however, any reasonably segregable portion of a record must be provided to the requester after deletion of the portions that are exempt. 5 U.S.C. § 552(b). We find some passages in the report, particularly in the introductory section, that are recitations of fact. There does not appear to be deliberative content in these passages. Consequently, these segregable passages do not qualify for protection under Exemption 5. Consequently, BPA must either release these segregable factual passages or provide another ground for withholding them.

As an additional argument for release of the report, Joslin says that he had "been told by the Agency that the report cannot be obtained since it contains possible incriminating information about a Department of Energy manager." He argues that this is not a valid ground to withhold material under the FOIA.

We are unable to respond to Joslin's argument, because there is no claim in the determination letter that the report is being withheld because it contains incriminating information. There is no general FOIA protection for material that is "incriminating." Some exemptions, however, such as Exemption 6, which protects personal privacy interests, and Exemption 7, which protects law enforcement records, could conceivably be construed to cover certain material that contains incriminating information. BPA, however, did not claim either Exemption 6 or Exemption 7. The only protection that BPA asserts in the determination letter is Exemption 5. We have therefore confined our analysis to Exemption 5, which provides for no consideration of whether the requested material is incriminating.

Conclusion

We have determined that the report requested by Joslin is predecisional and deliberative, and its release in its entirety would cause foreseeable harm to the DOE's deliberative process. We also found, however, segregable portions of the report that are recitations of fact and do not fall within the scope of the deliberative process privilege. We will therefore remand this matter to BPA for release of segregable material or further justification for withholding.

It Is Therefore Ordered That:

(1) The appeal filed by Richard Joslin, Case No. VFA-0183, is hereby granted in part as set forth in Paragraph (2) and denied in all other respects.

(2) This matter is hereby remanded to the Bonneville Power Administration for processing in accordance with the instructions provided in this Decision.

(3) 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.

George B. Breznay

Director

Office of Hearings and Appeals

Date: July 22, 11996