Case No. VFA-0262, 26 DOE ¶ 80, 161

February 20, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

APPEAL

Name of Petitioner:William H. Payne

Date of Filing: January 22, 1997

Case Number: VFA-0262

On January 22, 1997, William H. Payne (Payne or the Appellant) filed an Appeal from a determination issued on December 4, 1996, by the Albuquerque Operations Office (Albuquerque) of 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 DOE in 10 C.F.R. Part 1004. In his Appeal, Payne requests that we direct Albuquerque to (1) release legal invoices it withheld under Exemption 5 of the FOIA, 5 U.S.C. § 552(b)(5), on the grounds of the attorney work-product privilege; (2) search for certain records responsive to the Appellant's FOIA request in the legal files of a government contractor; and (3) identify and produce records that would indicate whether a named former DOE official had been charged with sexual harassment or had been the subject of a "security clearance action."

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 DOE determines that disclosure is in the public interest. 10 C.F.R. § 1004.1.

BACKGROUND

On October 16, 1996, the Appellant submitted a FOIA request seeking access to the following:

(1) invoices submitted by private law firms to Sandia National Laboratories (Sandia National Laboratories and Sandia Corporation will both be referred to as "Sandia") (1) for the defense of a sexual harassment lawsuit involving Sandia employees;

(2) investigative reports concerning the plaintiff's allegations of sexual harassment in the Sandia litigation; and

(3) records indicating whether a former DOE official had been accused of sexual harassment or the subject of a "security clearance action."

On December 4, 1996, Albuquerque issued a determination letter responding to this FOIA request. In response to the Appellant's request for legal invoices, Albuquerque provided the names of two law firms that Sandia had retained to defend the sexual harassment law suit and provided the dollar amount paid to these firms. The actual invoices were withheld in their entirety under Exemption 5 of FOIA on the grounds of attorney work-product privilege.

Albuquerque indicated that there were no agency records of investigative reports concerning the allegations of the sexual harassment complaint. Albuquerque further stated that such records are maintained in the legal files of Sandia, and that these files are not owned by DOE.

Based on Exemptions 6 and 7(C) of the FOIA, Albuquerque refused to confirm or deny the existence of records that would indicate whether a former DOE official had been accused of sexual harassment or the subject of a "security clearance action." Albuquerque supported this position by stating that:

Lacking evidence of an individual's consent, an official acknowledgment of an investigation by the agency, or an overriding public interest in the information, even to acknowledge the existence of such records pertaining to any named individual could reasonably be expected to constitute an unwarranted invasion of personal privacy.

Payne has appealed this determination on three grounds. First, Payne alleges that invoices prepared by private law firms and directed to a government contractor are not internal government records and are therefore not withholdable under Exemption 5 of the FOIA. Second, he claims that records concerning an investigation of allegations of harassment located in the files of a government contractor are subject to the FOIA and should be released as a matter of public policy. Finally, Payne contends that records that would indicate whether a DOE official had been accused of sexual harassment or the subject of a security clearance action are not withholdable under Exemption 6 or Exemption 7(C) of the FOIA.

ANALYSIS

As detailed below, we have determined that Albuquerque (1) properly withheld portions of legal invoices based upon the attorney work-product privilege recognized under FOIA Exemption 5, but failed to segregate and release non-privileged portions of the documents; (2) correctly asserted that records in the possession of a government contractor were not releasable under the FOIA because they were not agency records or under the control of DOE; (3) correctly refused to confirm or deny the existence of records that would indicate whether a former DOE official had been accused of sexual harassment or the subject of a "security clearance action."

I. The Attorney-Work Product Privilege under Exemption 5 of the FOIA

Albuquerque withheld in their entirety monthly billing invoices issued by private law firms for work performed defending a sexual harassment law suit for Sandia under the attorney work-product privilege of Exemption 5. The Appellant claims that Exemption 5 does not apply because they were not government documents. As detailed below, contrary to the Appellant's position, these invoices are intra-agency documents and portions of these statements were properly withheld. However, these invoices also contain non-exempt material that must be segregated and released to the Appellant.

A. The DOE's Role in Litigation Involving Sandia

Sandia is the contractor responsible for managing the Sandia National Laboratory for DOE. The contract between DOE and Sandia provides procedures for the defense and settlement of claims against Sandia. Under these procedures, Sandia must inform DOE when a suit has been filed against it arising from its performance under the contract. Absent special circumstances, DOE must reimburse Sandia for the costs and expenses of litigation, including judgments, court costs and attorneys' fees. The contract permits DOE to direct the litigation or substitute government counsel for the contractor's private counsel. To make informed decisions concerning the litigation, DOE reviews and evaluates the billing statements of Sandia's private counsel.

B. The Invoices

The monthly billing invoices at issue were prepared by two private law firms retained by Sandia to defend the sexual harassment law suit. The invoices were sent to Sandia for payment. The sample invoices that we examined set forth the date of the services provided, the initials of the attorney providing the services, a brief description of the nature of the services provided, and the daily number of hours billed by each attorney. At the end of the statement, the attorneys whose initials appear in the statement are identified and the total number of hours billed by each attorney are then multiplied by the particular hourly rate charged for each attorney's services. The monthly billing statements also state the amounts charged for various administrative services such as photocopying.

C. Exemption 5

Exemption 5 of the FOIA exempts from mandatory disclosure documents that are "inter- agency or intra-agency memoranda or letters that would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. § 552(b)(5); 10 C.F.R. § 1004.10(b)(5). A prerequisite for invoking Exemption 5 is that the document at issue be an inter-agency or intra-agency document. When documents have been created outside of an agency but pursuant to agency initiative, courts have held that such documents are intra- agency documents. See Soucie v. David, 448 F.2d 1067, 1078 n.44 (D.C. Cir. 1971); Joyce E. Economus, 23 DOE ¶ 80,182 (1994) (Exemption 5 is applicable to documents prepared by outside contractors).

Here, the invoices are intra-agency documents because of the relationship between DOE, Sandia and the private law firms. Pursuant to the DOE-Sandia contract, DOE generally reimburses Sandia for the cost of litigation, settlement and judgment. DOE may also exercise substantial control over the litigation. The billing records are used by DOE to monitor the litigation and determine whether it is necessary to impose additional controls. As DOE uses these invoices as part of its decision-making process, they are "intra-agency" documents within the scope of Exemption 5. The fact that these invoices were generated by private law firms retained to defend Sandia does not destroy the intra-agency aspect of these documents. See Rio Grande Sun, 15 DOE ¶ 80, 132 (1987) (Exemption 5 applies to invoices prepared by law firm representing DOE contractor); Tri-City Herald, 18 DOE ¶ 80,115(1989), (work-product documents of DOE contractor constitute intra-agency documents under Exemption 5).

D. The Attorney Work-Product Privilege

Exemption 5 of the FOIA encompasses documents covered by the attorney work-product privilege. Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 862 (D.C. Cir. 1980) (Coastal States). The attorney work-product privilege protects from disclosure documents which reveal "the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation." Fed. R. Civ. P. 26(b)(3); see also Hickman v. Taylor, 329 U.S. 495, 511 (1947). This privilege is limited. It does not extend to every written document generated by an attorney. In order to be afforded protection under the attorney work product privilege, a document must have been prepared either for trial or in anticipation of litigation. See, e.g., Coastal States at 865.

It is well settled that attorney fee information is normally not privileged. Indian Law Resource Center, 477 F. Supp. 144, 149 (D.D.C. 1979) (Indian Law). However, information contained in billing statements is privileged when it reveals litigation strategy, the thoughts or impressions of the attorneys, or the specific nature of the services provided by attorneys, such as research into particular areas of the law. Indian Law; C.D. Varnadore, 24 DOE ¶ 80, 123 (1994). See also Rio Grande Sun.

Applying these principles to the present case, we find that the invoices contain both privileged and non-privileged material. The non-privileged information contained in these documents includes the attorneys' identities, the hourly rates charged by each attorney, the total fees charged for the litigation, and the cost of expenses such as photocopying, reporting services and mileage. The privileged information contained in these documents consists of the descriptions of the specific services, the dates on which legal services were provided by each attorney, the monthly and daily totals of hours billed by each attorney, and the total monthly dollar amount charged for each attorney's services. This information is privileged because it would provide opposing counsel with insight into Sandia's litigation strategy by revealing the timing and intensity of the provided services. Rio Grande Sun.

E. The Public Interest in Disclosure

Under 10 C.F.R. § 1004.1, material determined to be exempt from mandatory disclosure under the FOIA may be released if disclosure is determined to be in the public interest. We find that the public interest is best served by non-disclosure to insure that attorneys representing the government or government contractors are able to prepare their clients' cases free from the kind of "undue and needless interference" cited by the Supreme Court in Hickman v. Taylor. "Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten." Hickman, 329 U.S. at 510-11. Without the protection of the privilege, attorneys representing the government would be handicapped from providing effective representation. Moreover, as detailed below, release of the work-product information is not in the public interest because it would impede the government's ability to monitor and control the cost of contractor litigation. Therefore, we find that the public interest does not mandate release of the material withheld under Exemption 5.

We further find that disclosure of this material would cause a tangible risk of harm to the interests protected by the work-product privilege. An individual who reads the privileged portion of these invoices will obtain information concerning Sandia's litigation strategy that is generally unavailable to a party in litigation. Future litigants with access to the privileged portion of the invoices will have an advantage over Sandia. Moreover, Sandia will be reluctant to provide privileged documents (including detailed invoices) to DOE if DOE releases these documents to the public. Thus, release of the work-product information would cause direct harm by impeding DOE's ability to monitor and control the cost of contractor litigation. See C.D. Varnadore, 24 DOE ¶ 80,123 (1994) (information contained in legal invoices issued by law firm representing DOE contractor is confidential under Exemption 4 because disclosure would impair DOE's ability to obtain such information in the future). This finding satisfies the reasonably foreseeable harm standard set forth by the Attorney General in 1993. Memorandum from Attorney General Janet Reno to Heads of Departments and Agencies (October 4, 1993).

F. Segregation

The FOIA explicitly mandates that "any reasonably segregable portion of a record shall be provided . . . after deletion of the portions which are exempt [from disclosure]." 5 U.S.C. § 552(b). Although the billing statements contain some information that may properly be withheld under Exemption 5, Albuquerque's blanket application of the privilege was improper. While the attorney work-product privilege applies to both facts and opinions, it does not apply to all information within a document. In the instant case, the invoices contain non-privileged information such as the attorneys' identities, the hourly rates charged by each attorney and the cost of expenses such as photocopying. Our cases have required segregation and the release of such non-privileged materials. See Oxy USA, Inc., 23 DOE ¶ 80,133 (1993).

In view of the foregoing, we shall grant the present Appeal to the extent that we will remand this matter to Albuquerque and require that it issue a new determination concerning these invoices. Before issuing this determination, Albuquerque shall review the invoices withheld in their entirety and delete under the attorney work-product privilege of Exemption 5 only those portions of the invoices that we have found properly withheld. Albuquerque shall then release any reasonably segregrable non-exempt information.

II. Agency Records

In his FOIA request, the Appellant sought investigative reports of the plaintiff's allegations in the Sandia sexual harassment lawsuit. Albuquerque responded by stating that there were no agency records responsive to this request, but that Sandia had records of investigations in its legal files. Albuquerque further indicated that DOE does not own these records.

The Appellant claims that he is entitled to obtain records in the possession of a contractor under the FOIA and that records concerning sexual harassment should be public as a matter of policy. The Appellant's position is without merit. As detailed below, the records at issue are not subject to the FOIA because (1) they are not "agency records" and (2) the contract between DOE and Sandia provides that Sandia own the records. Because DOE does not own or control these records, it does not have the authority to order their release.

The FOIA requires the release of non-exempt "agency records" in response to a FOIA request. To determine whether a document is an "agency record," we must resolve (1) whether the organization is an "agency" for purposes of the FOIA. and if not, (2) whether the requested material is nonetheless an "agency record." See, e.g., B.M.F. Enterprises, 21 DOE ¶ 80,127 (1991); William Albert Hewgley, 19 DOE ¶ 80,120 (1989); Judith M. Gibbs, 16 DOE ¶ 80,133 (1987) .

The FOIA defines the term "agency" to include any "executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch . . . , or any independent regulatory agency." 5 U.S.C. § 552(f). The courts have identified certain factors to consider in determining whether an entity should be regarded as an agency for purposes of federal law. In United States v. Orleans, 425 U.S. 807 (1976), a case that involved a statute other than the FOIA, the Supreme Court defined the conditions under which a private organization must be considered a federal agency as follows: "[T]he question here is not whether the . . . agency receives federal money and must comply with federal standards and regulations, but whether its day- to-day operations are supervised by the Federal Government." Id. at 815. In other words, an organization will be considered a federal agency only where its structure and daily operations are subject to substantial federal control. See Ciba-Geigy Corp. v. Matthews, 428 F. Supp. 523, 528 (S.D.N.Y. 1977). Subsequently, the Supreme Court ruled that the Orleans standard provides the appropriate basis for ascertaining whether an organization is an "agency" in the context of a FOIA request for "agency records." Forsham v. Harris, 445 U.S. 169, 180 (1980) (Forsham). See also Washington Research Project, Inc. v. HEW, 504 F.2d 238, 248 (D.C. Cir. 1974), cert. denied, 421 U.S. 963 (1975) (degree of independent governmental decision-making authority considered); Rocap v. Indiek, 539 F.2d 174 (D.C. Cir. 1976).

Under its contractual relationship with DOE, Sandia is the prime contractor responsible for maintaining and operating the Sandia National Laboratory. While DOE obtained Sandia's services and exercises general control over the contract work, it does not supervise Sandia's day-to-day operations. We therefore conclude that Sandia is not an "agency" subject to the FOIA.(2) Thus, the records do not qualify as "agency records" under the test set forth by the federal courts. See Department of Justice v. Tax Analysts, 492 U.S. 136, 145-46 (1989); see also Forsham, 445 U.S. at 185-86; Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 150-51 (1980).

Even if contractor-acquired or contractor-generated records fail to qualify as "agency records," they may still be subject to release if the contract between the DOE and that contractor provides that the document in question is the property of the agency. The DOE FOIA regulations provide that "[w]hen a contract with DOE provides that any records acquired or generated by the contractor in its performance of the contract shall be the property of the Government, DOE will make available to the public such records that are in the possession of the Government or the contractor, unless the records are exempt from public disclosure under 5 U.S.C. § 552(b)." 10 C.F.R. 1004.3(e)(1).

We therefore next look to the contract between DOE and Sandia to determine the status of such records. Clause H-18 establishes the ownership of records relating to work performed under the contract. This clause provides that, as a general matter, DOE owns the records acquired or generated by Sandia in the performance of the contract. However, the contract specifically provides that Sandia owns, inter alia, personnel records of individual employees, records relating to allegations, investigations and resolution of employee misconduct (including charges of discrimination), and internal legal files.(3) We find that any documents in Sandia's possession that would reflect investigations of allegations of sexual harassment would fall within the categories of documents described above owned by Sandia under the contract. Therefore, unless such documents are submitted to the DOE, these records would be contractor's records, which are not subject to release under the DOE regulations. Accordingly, we find that the records relating to an investigation of allegations of sexual harassment are neither "agency records" within the meaning of the FOIA, nor subject to release under DOE regulations.

III. Albuquerque's Refusal to Confirm or Deny the Existence of Records Regarding a Named Individual

Relying upon Exemptions 6 and 7(C) of the FOIA, Albuquerque refused to confirm or deny the existence of records that would indicate whether a former DOE official had been accused of sexual harassment or had been the subject of a security clearance action. The Appellant contends that information concerning such matters is not withholdable under Exemptions 6 or 7(C). As detailed below, Appellant's position is without merit.

A. Glomar

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.(4) A Glomar response is justified when the confirmation of the existence of certain records would itself reveal exempt information. See Antonelli v. F.B.I., 721 F.2d 615 (7th Cir. 1983).

A Glomar response must be used consistently to protect the privacy of individuals who are the subject of FOIA requests as other responses will reveal exempt information. For example, if Albuquerque had admitted that documents responsive to the Appellant's FOIA request exist, but claimed that these documents were exempt from disclosure, it would have revealed the existence of records indicating that the named individual had been the subject of a sexual harassment complaint or a "security clearance action." Moreover, if Albuquerque provides a Glomar response only when exempt records exist, FOIA requestors will soon note the pattern and will be able to infer that Albuquerque only refuses to confirm or deny the existence of exempt records when such records actually exist. This would compromise the privacy rights of individuals who may be the subjects of third party FOIA requests in the future.

B. The Appellant's Contentions

The Appellant alleges that a named former DOE official had been charged with sexual harassment by sixteen women and that his security clearance had been revoked. Payne implies that the revocation of the individual's security clearance, and the individual's subsequent resignation, were connected to the charges of sexual harassment. Payne has submitted no evidence corroborating these facts. Nor has he alleged the existence of a criminal or civil investigation involving the named individual. The Appellant appears to be seeking records that would indicate whether this former DOE official had been the subject of sexual harassment complaints and security clearance actions to confirm his suspicions.

C. Exemptions 6 and 7(C)

Both Exemptions 6 and 7(C) allow the withholding of information dealing with personal privacy. The former permits the non-disclosure of "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of privacy." 5 U.S.C. § 552(b)(6); 10 C.F.R. § 1004.10(b)(6). Under Exemption 7(C), agencies may 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 a personal privacy." 5 U.S.C. § 552(b)(7)(C); 10 C.F.R. § 1004.10(b)(7)(iii). Both exemptions require a balance of the interest in personal privacy in the withheld information against the public interest in the same information.

There are, however, two significant differences between Exemptions 6 and 7(C). Under Exemption 7(C), the information must have been compiled for law enforcement purposes. In addition, because information may be withheld where there is only a reasonable expectation of an "unwarranted invasion of a personal privacy," there is a lower threshold of privacy interest employed in Exemption 7(C) than in Exemption 6 where the balance calls for a "clearly unwarranted invasion of privacy" (emphasis added). Because, as we find below, the documents at issue here meet Exemption 7's threshold test, we need only examine the withholding under the standard of Exemption 7(C). See, e.g., Burlin McKinney, 25 DOE ¶ 80,149 at 80,620 (1995); K.D. Moseley, 22 DOE ¶ 80,124 at 80,550 (1992).(5)

1. Law enforcement purpose

Information may be withheld under exemption 7(C) if an agency compiled such information as part of or in connection with a law enforcement proceeding. FBI v. Abramson, 456 U.S. 615, 622 (1982). An agency's enforcement of a civil statute is considered performed for a "law enforcement" purpose under Exemption 7. Rural Housing Alliance v. Department of Agriculture, 498 F.2d 73, 81 (D.C. Cir. 1974). Exemption 7 applies to records generated during a background security investigation performed in connection with federal employment, see e.g. Mittleman v. OPM, 76 F.3d 1240, 1241-43 (D.C.Cir. 1996), and to documents gathered by an Equal Employment Opportunity Office during an investigation of allegations of discrimination. Raytheon Company, 25 DOE ¶ 80,156 (1995). Thus, records that would indicate whether a former DOE official had been accused of sexual harassment or had been the subject of a security clearance action would fall within the scope of Exemption 7.

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). This standard also applies when determining whether the disclosure of the existence of law enforcement records could reasonably be expected to constitute an unwarranted invasion of personal privacy. See Antonelli v. F.B.I., 721 F.2d 615 (7th Cir. 1983).

a. The privacy interest

An individual has a strong privacy interest in the non-disclosure of the existence of records that would indicate that he has been the subject of a sexual harassment investigation 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 embarrassed 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.

An individual also has a strong privacy interest in the non-disclosure of records that would indicate that he has been the subject of a security clearance action.(6) Although being the subject of a security clearance action is not always stigmatizing, the disclosure of this fact may lead to harassment or embarrassment. If an individual has been the subject of a security clearance action, it increases the likelihood that this individual was granted a security clearance or denied a clearance after an investigation. If the fact (or the increased likelihood) that an individual has a security clearance were disclosed to the public, this individual could be targeted by terrorists or spies who might harass or threaten the individual to obtain access to classified information. It is well settled that an increased risk of harassment and annoyance constitutes an invasion of personal privacy. See Weisberg v. Department of Justice, 745 F.2d 1476, 1491 (D.C. Cir. 1984); See also Hemengway v. Hughes, 601 F. Supp.1002 (D.D.C. 1985) (information regarding citizenship of persons accredited to attend State Department briefings exempt from disclosure because disclosure could place an individual in jeopardy). Moreover, if an individual had been denied a security clearance, the disclosure of this information would be stigmatizing.

The Appellant implies that the named individual waived his privacy interest because he was a high-level DOE official. This position is without merit. A person does not forfeit his or her right to privacy simply by accepting employment as a government official. 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 individual's position may increase the public interest in disclosure).

The Appellant further implies that the named individual has no privacy interest in the non- disclosure of these records because of the public nature of his alleged misconduct. 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). See also 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 of documents of the type requested by Payne. 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. If a public interest is identified, then it must be determined whether the public interest in disclosure outweighs the privacy right of the individual.

Here, the Appellant apparently claims that the public interest in disclosure relates to the fact that he is trying to expose governmental corruption. Appellant claims that the named individual was formerly a high level DOE official who has been guilty of misconduct. 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 proceeding or criminal case against the named individual. 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); William H. Payne, 26 DOE ¶ 80,144 (1996) (no substantial public interest in disclosure of information concerning possible investigation when allegations of official misconduct are unsubstantiated).

c. Balancing the interests

When an individual who has not been formally charged with a crime or other misconduct 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 interest of the individual. Accordingly, if records indicating that the named individual was accused of sexual harassment or the subject of a security clearance action exist, the fact of the existence of these records may be withheld under Exemption 7(C).(7)

D.. The Glomar Response Was Appropriate

We find that Albuquerque was justified in providing a Glomar response to the Appellant's FOIA request because 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 Albuquerque's refusal to confirm or deny the existence of enforcement records concerning a named individual.

CONCLUSION

In view of the foregoing, we shall grant the present Appeal in part. This matter will be remanded to Albuquerque with directions to issue a new determination. Before issuing this determination, Albuquerque shall review the legal invoices from the law firms that represented Sandia in the sexual harassment law suit and delete under the attorney work- product privilege of Exemption 5 only the descriptions of the specific services, the dates on which legal services were provided by each attorney, the monthly and daily totals of hours billed by each attorney, and the total monthly dollar amount charged for each attorney's services. Albuquerque shall release any segregable, non-exempt information. We will deny the remainder of the Appeal.

It Is Therefore Ordered That:

(1) The Appeal filed by William H. Payne on January 22, 1997, is hereby granted as set forth in Paragraph (2) below, and is in all other respects denied.

(2) This matter is remanded to the Albuquerque Operations Office to issue a revised determination concerning the legal invoices withheld in their entirety. In this revised determination, Albuquerque shall release any segregable, non-exempt information. Under the attorney work-product privilege of Exemption 5, Albuquerque may delete only the descriptions of the specific services , the dates on which legal services were provided by each attorney, the monthly and daily totals of hours billed by each attorney, and the total monthly dollar amount charged for each attorney's services.

(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: February 20, 1997

(1)Sandia is the contractor responsible for managing the Sandia National Laboratory for DOE. Contract No. DE-AC04-94AL85000. Under the contract, DOE exercises general control over the work performed at Sandia, but does not supervise day-to-day operations. The contract specifically details many aspects of the relationship between DOE and Sandia, including the ownership of records and procedures for the defense and settlement of claims against Sandia.

(2)Although Sandia is not an agency for the purposes of the FOIA, Sandia records could become "agency records" if they were obtained by DOE and were within DOE's control at the time the FOIA request was made. Department of Justice v. Tax Analysts, 492 U.S. 136, 144-46 (1989); see Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136 (1980); Forsham, 445 U.S. at 182. In this case, the documents in question had not been obtained by the DOE and were not in the agency's control at the time of the Appellant's request. Memorandum of Telephone Conversation between Karen Griffith, Attorney, Office of Chief Counsel, Kirkland Area Office, DOE and Linda Lazarus, Staff Attorney, Office of Hearings and Appeals (February 19, 1997).

(3)The section of Clause H-18 that sets forth the categories of documents that belong to Sandia under the contract contains an exception for records contained in certain enumerated Privacy Act Systems of Records (Privacy Act records). These records belong to DOE. After examining the categories of Privacy Act records enumerated in this exception, and speaking to two Albuquerque employees, we are convinced that Albuquerque performed an adequate search for records responsive to the Appellant's FOIA request in these Privacy Act records and that no records were found. Memorandum of Telephone Conversation between Ron O'Dowd, Office of Chief Counsel, and Linda Lazarus, Staff Attorney, Office of Hearings and Appeals (February 19, 1997); Memorandum of Telephone Conversation between Elva Barfield, FOIA Officer, Albuquerque, and Linda Lazarus (February 19, 1997).

(4)"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).

(5)Although it is unnecessary to reach this issue, Exemption 6 also permits the withholding of records concerning these issues. See Hunt v. U.S. Marine Corps,, 935 F. Supp. 46 (D.D.C. 1996) (information concerning an individual's security clearance withholdable under Exemption 6); Schonberger v. National Transp. Safety Board, 508 F. Supp. 941, 944-945 (D.D.C. 1981) (Exemption 6 protects identity of federal employees accused of wrongdoing).

(6)We understand the term "security clearance action" used by the Appellant in his FOIA request to include an action which involves the grant, denial, revocation or continuation of an access authorization.

(7)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.