Case No. VFA-0243, 26 DOE ¶ 80,144

December 16, 1996

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

APPEAL

Name of Petitioner: William H. Payne

Date of Filing: November 15, 1996

Case Number: VFA-0243

On November 15, 1996, William H. Payne (Payne or the Appellant) filed an Appeal from a determination issued on October 10, 1996, by the Department of Energy (DOE) in response to a request for information submitted under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004, and the Privacy Act, 5 U.S.C. §552a, as implemented by the DOE in 10 C.F.R. Part 1008. In this Decision and Order, we will determine whether the DOE must release or identify materials withheld under FOIA Exemption 7(C), 5 U.S.C. §552(b)(7)(C), and conduct a further search for documents responsive to the Appellant's FOIA and Privacy Act requests.

The FOIA requires that documents held by federal agencies generally be released to the public upon request. The FOIA, however, lists nine exemptions that set forth the types of information that may be withheld at the discretion of an agency. 5 U.S.C. § 552(b). DOE regulations further provide that a document exempt from disclosure under the FOIA shall nonetheless be released to the public whenever the DOE determines that disclosure is in the public interest. 10 C.F.R. § 1004.1.

BACKGROUND

In a FOIA and Privacy Act request dated November 27, 1995, the Appellant sought copies of reports of investigations of misconduct by a named individual made by the DOE's Office of Inspector General (OIG) or other offices, and reports containing the Appellant's name.

By letter dated December 12, 1995, the Director of the FOIA/Privacy Act Division of the Office of the Executive Secretariat (Headquarters' FOIA Office) informed the Appellant that they had sent his FOIA and Privacy Act requests to OIG for a direct response. The

Headquarters' FOIA and Privacy Office did not request that any other DOE office search for responsive documents.

On October 10, 1996, OIG issued a determination in response to the Appellant's FOIA request. It responded to the request for reports of investigation of misconduct by a named individual by stating:

[T]he Office of Inspector General neither confirms nor denies the existence of records responsive to your request. Lacking an individual's consent, an official acknowledgment of an investigation, or an overriding public interest, even to acknowledge the existence of such records pertaining to an individual could reasonably be expected to constitute an unwarranted invasion of personal privacy.

ANALYSIS

This Decision and Order will focus on the adequacy of DOE's search for records responsive to the Appellant's FOIA and Privacy requests and the propriety of OIG's refusal to confirm or deny the existence of enforcement records concerning a third person.(1) As detailed below, we will remand this matter to the Headquarters' FOIA Office to conduct an additional search for responsive records and uphold OIG's refusal to confirm or deny the existence of records.

I. Adequacy of the Search

Generally, a FOIA search is a broad, all-encompassing search that would identify any documents also subject to a Privacy Act analysis. Anibal L. Taboas, 25 DOE ¶ 80,207 at 80,775 (1996). Thus, we will analyze this case under FOIA principles. We have held that a FOIA request deserves a thorough and conscientious search for responsive documents. When we have found that a search was inadequate, we have consistently remanded the case and ordered a further search for responsive documents. E.g. Eugene Maples, 23 DOE ¶ 80,106 (1993); Marlene R. Flor, 23 DOE ¶ 80,130 (1993); Native Americans for a Clean Environment, 23 DOE ¶ 80,149 (1993). However, the FOIA requires that a search be reasonable, not exhaustive. "The standard of reasonableness that we apply to the agency search procedures does not require absolute exhaustion of files; instead it requires a search reasonably calculated to uncover the sought materials." Miller v. Department of State, 779 F.2d 1378, 1384-85 (8th Cir. 1985).

In reviewing this Appeal, we contacted employees of the Headquarters' FOIA Office to discuss the search conducted for the requested documents. A FOIA/Privacy Act Specialist informed us that the Headquarters' FOIA Office had requested that only OIG, and no other DOE office, search for responsive records. The FOIA/Privacy Act Specialist asked that we remand Payne's FOIA and Privacy Act requests to the Headquarters' FOIA Office so that it may seek additional documents from other DOE offices. See Memorandum of Telephone Conversation between Joan Ogbazghi, FOIA/Privacy Act Specialist, and Linda Lazarus, OHA Staff Attorney (December 4, 1996).

In view of the foregoing, we shall grant the present Appeal to the extent that we will require that DOE conduct a further search for documents. We will remand this matter to the Headquarters' FOIA Office for a new determination with instructions to search other DOE offices for additional documents.

II. OIG's Refusal to Confirm or Deny the Existence of Records

An agency's statement in response to a FOIA request that it will neither confirm nor deny the existence of records is commonly called a "Glomar" response.(2) A Glomar response is justified when the records sought, if they exist, would be exempt from disclosure under the FOIA, and the confirmation of the existence of such records would itself reveal exempt information. See Antonelli v. F.B.I., 721 F.2d 615 (7th Cir. 1983). As detailed below, these circumstances exist here, and OIG correctly refused to admit or deny the existence of enforcement records involving a third person.

A. The Appellant's Contentions

In his Appeal, Payne alleges that the OIG's refusal to confirm or deny the existence of records concerning reports of misconduct by a named individual was improper because the individual's misconduct was public, acknowledged by an employee of the Equal Employment Opportunity Commission (EEOC), and financed by taxpayer money.

In support of this position, the Appellant made the following contentions: (1) that the named individual was a high level official at Sandia National Laboratory (Sandia) and is currently a high level official with another DOE contractor; (2) that the named individual had sexual relations with his subordinate at Sandia, who may have been promoted in exchange for these sexual favors; (3) that Sandia security discovered the named individual having sexual relations with women in his office; (4) that the named individual has been the subject of many complaints of sexual harassment; and (5) that the named individual is married to a woman employed at Sandia who is overcompensated for the work that she does. The Appellant further contends that an EEOC employee has confirmed that these incidents occurred.

The Appellant has not substantiated any of these allegations. Moreover, the Appellant has not alleged that the named individual is the target of a public OIG investigation, or that charges arising from an OIG investigation have been filed against the named individual.

B. The OIG Response

In reviewing this Appeal, we contacted employees of OIG to discuss the Glomar response to the Appellant's FOIA request. An OIG staff attorney stated that OIG has a consistent policy of refusing to confirm or deny the existence of records in response to a FOIA request when the following circumstances exist:

1. The request is made by a third party.
2. The request is for information about a person identified by name.
3. The requested records, if they exist, would be contained in an enforcement file.
4. The named individual is not deceased.
5. The individual has not given the requester a waiver of his privacy right.
6. There has been no official confirmation that an enforcement file or proceeding

exists.

In this case, OIG determined that the six factors existed and then issued a Glomar response to the Appellant's FOIA request. See Memorandum from Jackie Becker, Attorney, Office of the Inspector General to Linda Lazarus (November 27, 1996).

C. Exemption 7(C)

1. In general

Exemption 7(C) of FOIA, 5 U.S.C.§ 552(b)(7)(C), allows an agency to withhold "records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information . . . (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy . . . ." 5 U.S.C. § 552(b)(7)(C); 10 C.F.R. § 1004.10(b)(7)(iii).

The threshold test for withholding information under Exemption 7(C) is whether the agency compiled such information as part of or in connection with an agency law enforcement proceeding. FBI v. Abramson, 456 U.S. 615, 622 (1982). The scope of Exemption 7 encompasses enforcement of both civil and criminal statutes. Rural Housing Alliance v. Department of Agriculture, 498 F.2d 73, 81 & n.46 (D.C. Cir. 1974). Amendments to the FOIA in 1986 extended the protection of Exemption 7 to all records compiled for "law enforcement purposes." See Attorney General's Memorandum on the 1986 Amendments to the Freedom of Information Act (Dec. 1987).

OIG is an investigative, law enforcement body charged with investigating and correcting waste, fraud or abuse in programs administered or financed by the DOE. See Inspector General Act of 1978, codified as amended at 5 U.S.C. app. §§2(1)-(2), 4(a)(1), (3)-(4), (d), 6(a)(1)-(4), 7(a), 9(a)(1)(E). As a result of its duties, we find that OIG compiles reports involving official misconduct for law enforcement purposes within the meaning of Exemption 7(C). See Burlin McKinney, 25 DOE ¶ 80,149 (1995).

2. The balancing test

In determining whether the disclosure of law enforcement records could reasonably be expected to constitute an unwarranted invasion of personal privacy, courts have used a balancing test, weighing the privacy interests that would be infringed against the public interest in disclosure. Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 762 (1989) (Reporters Committee); Safecard Services, Inc. v. Securities and Exchange Commission, 926 F.2d 1197 (D.C. Cir. 1991) (Safecard); Lesar v. Department of Justice, 636 F.2d 472, 486 (D.C. Cir. 1980).

a. The privacy interest

The subject of an OIG investigation has a strong privacy interest in remaining anonymous because of the stigma associated with being investigated. See Fund for Constitutional Government v. National Archives & Records Service, 656 F.2d 856, 865 (D.C. Cir. 1981); James L. Schwab, 21 DOE ¶ 80,117 (1991). The D.C. Circuit has acknowledged that investigation subjects possess substantial privacy interests because they may be embarrased and suffer harm to their reputations if others learn that they are the target of a law enforcement investigation. Safecard, 926 F.2d at 1205.

The Appellant argues that the named individual waived his privacy right because he was a high-level official of a government contractor and allegedly committed misdeeds on government time. This position is without merit. A person does not forfeit his or her right to privacy simply by accepting employment as an official of a government contractor. See Baez v. Department of Justice, 647 F.2d 1328 (D.C. Cir. 1980); Bast v. Department of Justice, 665 F.2d 1251, 1255 (D.C. Cir. 1981) (government officials do not surrender right to personal privacy although individuals' position may increase the public interest in disclosure).

The Appellant further contends that the named individual has no privacy right in the non- disclosure of OIG enforcement records because of the public nature of his alleged misconduct and the alleged verification of such misconduct by an employee of the EEOC. This argument is also without merit. The named individual's privacy interest is not destroyed because the requester may have some knowledge of the facts contained in the requested records. Weisberg v. Department of Justice, 745 F.2d 1476, 1491 (D.C. Cir. 1984); L & C Marine Transp. Ltd. v. United States, 740 F.2d 919, 922(11th Cir. 1984) (privacy interest is not lost because information may be discovered through other means.) Moreover, even assuming that an employee of the EEOC has confirmed the Appellant's allegations, such confirmation does not abrogate the individual's right to privacy on the issue of whether he is the target of an OIG investigation. See Davis v. Department of Justice, 968 F.2d 1276 (D.C. Cir. 1992) (requester has burden of proving that the specific material he seeks has been officially acknowledged or is in the public domain).

b. The public interest in disclosure

Having established the existence of a privacy interest, the next step is to determine whether there is a public interest in disclosure. We have held that the public interest in disclosure is measured not by the degree of the requester's interest in disclosure, but rather by "the right of the public to obtain the same information." The Die-Gem Co., Inc., 19 DOE ¶ 80,124 at 80,569 (1989) (quoting Nix v. United States, 572 F.2d 998, 1003 (4th Cir. 1978)). The Supreme Court has held that information that does not directly reveal government operations or activities "falls outside the ambit of the public interest that the FOIA was enacted to serve." Reporters Committee, 489 U.S. at 775.

Here, the Appellant claims that the public interest in disclosure relates to the fact that the named individual was formerly a high official at Sandia and is currently a high level official with another DOE contractor. The Appellant claims that the named individual financed his alleged misdeeds with government money.

We agree that there is a strong public interest in the disclosure of official misconduct. Here, however, there has been no proof of official misconduct. The Appellant's allegations concerning the named individual are unsubstantiated. The Appellant has failed to demonstrate (or even allege) the existence of a formal OIG enforcement proceeding or criminal case arising from an OIG investigation. Courts have held that unsubstantiated allegations of official misconduct do not establish a public interest in disclosure. See McCutchen v. HHS, 30 F.3d 183 (D.C. Cir. 1994); Beck v. Department of Justice, 997 F.2d 1489 (D.C. Cir. 1993) (no public interest absent evidence of employee wrongdoing or public investigation); Triestman v. Department of Justice, 878 F. Supp. 667 (S.D.N.Y. 1995) (no substantial public interest in disclosure of information concerning possible investigation of law enforcement agent).

c. Weighing the public interest against the privacy interest

When an individual who has not been formally charged with a crime or other mis-conduct would be exposed as a target of a law enforcement investigation, the public interest in disclosure must be very strong to overcome the invasion of privacy. Fund for Constitutional Government, 656 F.2d at 866. Here, as detailed above, the public interest in disclosure of unsubstantiated allegations of official misconduct is weak. Thus, the public interest in disclosure of these records does not outweigh the privacy right of the individual. Accordingly, if OIG enforcement records involving the named individual exist, these records may be withheld under Exemption 7(C).(3)

D. Disclosure of the Existence of Records Would Reveal Exempt Information

OIG has correctly refused to confirm or deny the existence of records that would reflect whether it has investigated misconduct by the named individual. As detailed below, a consistent Glomar response to such FOIA requests is necessary to protect the privacy rights of individuals who have been the subject of an OIG investigation.

If OIG had admitted that documents responsive to the Appellant's FOIA request exist, but claimed that the documents themselves were exempt from disclosure under Exemption 7(C), it would have revealed the existence of a law enforcement investigation involving the named individual. If OIG had responded that there were no records of an investigation concerning the named individual, then FOIA requesters could infer that OIG only refuses to confirm or deny the existence of enforcement records when such records actually exist. FOIA requesters could then properly infer that a Glomar response from OIG means that a law enforcement file involving a named individual exists. This could compromise the privacy rights of individuals who may be the subjects of third-party FOIA requests in the future.

E. The Glomar Response Was Appropriate

We find that OIG was justified in providing a Glomar response to the Appellant's FOIA request because the records sought, if they exist, would be exempt from disclosure under the FOIA and the confirmation of the existence of such records would itself reveal exempt information. Accordingly, we will deny the portion of the Appeal that relates to OIG's refusal to confirm or deny the existence of enforcement records concerning a third person.

CONCLUSION

We shall grant the present Appeal to the extent that we will require that DOE conduct a further search for documents. We will remand this matter to the Headquarters' FOIA Office for a new determination with instructions to conduct a search for additional documents in other DOE offices. We will deny the portion of the Appeal that relates to the OIG's refusal to confirm or deny the existence of enforcement records concerning a third person.

It Is Therefore Ordered That:

(1) The Appeal filed by William H. Payne on November 15, 1996, is hereby granted as set forth in Paragraph (2) below, and is in all other respects denied.

(2) This matter is remanded to the FOIA/Privacy Act Division of the Office of the Executive Secretariat which shall request that other DOE offices search for documents responsive to the Appellant's November 27, 1995 FOIA and Privacy Act request. The FOIA/Privacy Act Division of the Office of the Executive Secretariat shall issue a new determination which reflects the results of this additional search.

(3) This is a final order of the Department of Energy of 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 busi ness, or in which the agency records are situated, or in the District of Columbia.

George B. Breznay

Director

Office of Hearings and Appeals

Date: December 16, 1996

(1)The OIG responded to the Appellant's request for records containing his name by stating that it will provide these records in response to another FOIA request. As the OIG has not provided a final response to this portion of the Appellant's request for records, this portion of the determination is not yet appealable. 10 C.F.R. §1008.11(a). See also Suffolk County, L.I., 17 DOE ¶ 80,111 at 80,524 (1988) (OHA can assume jurisdiction over a FOIA matter only after a DOE authorizing official has rendered an initial determination).

(2)"Glomar" refers to the first instance in which a Federal court upheld the adequacy of such a response. Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976) (agency responded to a request for documents pertaining to a submarine-retrieval ship named the Hughes Glomar Explorer by neither confirming nor denying the existence of any such documents).

(3)It is important to note that we could reach the same result by relying on those cases that hold that names of private individuals appearing in an agency's law enforcement files are "categorically" exempt from disclosure under Exemption 7(C). Safecard, 926 F.2d at 1205-06.