Case No. VFA-0273, 26 DOE ¶ 80,172

March 28, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Burlin McKinney

Date of Filing: March 3, 1997

Case Number: VFA-0273

On March 3, 1997, Burlin McKinney (McKinney) filed an Appeal from a determination issued to him on February 20, 1997, by the Office of the Inspector General (OIG) of the Department of Energy (DOE). That determination denied in part McKinney's request for information submitted pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004. This Appeal, if granted, would require the DOE to release the withheld information.

I. Background

On May 23, 1995, McKinney submitted a letter to the DOE Office of Occupational Safety requesting information on the beryllium health and safety program at the Y-12 plant in Oak Ridge, Tennessee. DOE's Freedom of Information Act/Privacy Group (DOE/HQ) forwarded one document to the Office of the Inspector General (OIG) for review, and this document (referred to as "Document 13")

was later released to McKinney. On October 24, 1995, McKinney submitted a memorandum to DOE's Oak Ridge Operations Office (DOE/OR) requesting all documents pertaining to an August 19, 1987 OIG investigation of alleged illegal activity at that facility. DOE/OR located three responsive documents and forwarded copies to OIG for review. OIG released redacted versions to McKinney. Document 13 was again released to McKinney, but with all personal pronouns redacted. See Letter from McKinney to Director, OHA (March 3, 1997). DOE/OR also sent a copy of the memorandum to DOE/HQ, which again forwarded the request to the OIG for processing. On February 20, 1997, the OIG released additional documents, all but two redacted, to McKinney. See Letter from Assistant Inspector General For Investigations to McKinney (February 20, 1997) (Determination Letter). Portions of the documents were withheld under FOIA Exemptions 5, 6, and 7(C). The OIG released a total of 26 documents in response to both requests.

In his Appeal, McKinney requests that OIG (1) release the personal pronouns in all documents, since these pronouns were previously released to him in Document 13(1); (2) release all references to Martin Marietta Energy Systems (MMES) supervision and management in order to make the documents easier to read; (3) release all references to DOE employees and DOE contractor employees; (4) release all references to letters and documents; and (5) review all documents again.

II. Analysis

A. Exemption 5

Exemption 5 of the FOIA exempts from mandatory disclosure documents which are "inter-agency or intra-agency memorandums or letters which 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). The Supreme Court has held that this provision exempts "those documents, and only those documents, normally privileged in the civil discovery context." NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975) (Sears). The courts have identified three traditional privileges that fall under this definition of exclusion: the attorney-client privilege, the attorney work-product privilege, and the executive "deliberative process" or "predecisional" privilege. Coastal States Gas Corporation v. Department of Energy, 617 F.2d 854, 862 (D.C. Cir. 1980) (Coastal States). In withholding a portion of Document 6 from McKinney, the OIG relied upon the deliberative process privilege of Exemption 5.

The deliberative process privilege of Exemption 5 permits the government to withhold documents that reflect advisory opinions, recommendations, and deliberations comprising part of the process by which government decisions and policies are formulated. Sears, 421 U.S. at 150. It is intended to promote frank and independent discussion among those responsible for making governmental decisions. EPA v. Mink, 410 U.S. 73, 87 (1973) (quoting Kaiser Aluminum & Chem. Corp. v. United States, 157 F. Supp. 939 (Cl. Ct.1958)) (Mink). The ultimate purpose of the exemption is to protect the quality of agency decisions. Sears, 421 U.S. at 151. In order to be shielded by Exemption 5, a document must be both predecisional, i.e., generated before the adoption of agency policy, and deliberative, i.e., reflecting the give-and-take of the consultative process. Coastal States, 617 F.2d at 866. The exemption thus covers documents that reflect, among other things, the personal opinion of the writer rather than the final policy of the agency. Id.

After reviewing Document 6, we conclude that the OIG correctly applied Exemption 5 in its determination. The document at issue is an OIG form entitled "Memo To Enter Data Into IGMIS." This memo refers to a case based on a complaint alleging contractor safety violations and irregularities in time cards at DOE/OR. The OIG deleted the section entitled "Remarks," which contains the recommendation of an OIG employee for the next steps to take in processing the case. This memo, written by a DOE employee for internal DOE purposes, is an agency memorandum. Furthermore, the material in the Remarks section is both predecisional and deliberative. It was written before the DOE, and specifically the OIG, adopted a final position on the case in question. Finally, we note that the release of this recommendation could inhibit employees from expressing their candid views if they believed that those views could become public knowledge. Therefore, the Remarks section of Document 6 is precisely the sort of record of the deliberative and "thinking" processes which Exemption 5 is designed to protect. Sears, 421 U.S. at 153 (quoting Davis, The Information Act: A Preliminary Analysis, 34 U. Chi. L. Rev. 761, 797 (1967)). See also Perkins Coie, 26 DOE ¶ 80,127 (1996). Accordingly, we hold that the withheld portion of Document 6 meets all the requirements for withholding material under the Exemption 5 deliberative process privilege. In addition, we conclude that release of this material would cause reasonably foreseeable harm to the interests the agency is protecting under Exemption 5 and therefore is not in the public interest.

However, both the FOIA and the implementing DOE regulations require that non-exempt material which may be reasonably segregated from withheld material be released to a requester. 5 U.S.C. §552(b); 10 C.F.R. § 1004.10(c). See Mink, 410 U.S. at 73, 89 (1972); Boulder Scientific Company, 19 DOE ¶ 80,126 at 80,577 n.3 (1989). Exemption 5 only covers the subjective, deliberative portion of the document. Mink, 410 U.S. at 87-91. Factual information contained in the protected document must be disclosed unless the factual material is "inextricably intertwined" with the exempt material or the non-exempt material is so small and interspersed with exempt material that it would pose "an inordinate burden" to segregate it. See Soucie v. David, 448 F.2d 1067, 1077 (D.C. Cir. 1971); Lead Industries Association, Inc. v. Occupational Safety and Health Administration, 610 F.2d 70, 85 (2d Cir. 1979). Our review of Document 6 reveals that all other non-exempt material was disclosed to the requester. Thus we find that the OIG, pursuant to DOE regulations, properly released those portions of Document 6 containing factual or non-exempt material.

B. Exemptions 6 and 7(C)

The OIG withheld material in twenty-four documents pursuant to Exemptions 6 and 7(C). Both exemptions allow the withholding of information dealing with personal privacy. Exemption 6 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). Exemption 7(C) applies to a much narrower class of cases, but has a less exacting standard that gives it somewhat more expansive coverage. 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 of these exemptions require a balance of the interest in personal privacy in the withheld information against the public interest in the same information. See Michael Grosche, 26 DOE ¶ 80,146 (1996) (Grosche).

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 in this case 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); Grosche, 26 DOE at 80,643.

Applying these standards to the documents in this case, we find that the records sought by the appellant were compiled for a law enforcement purpose. 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 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). In this case, the OIG was investigating allegations of fraud and safety violations at DOE/OR. As a result of its duties, we find that the 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); Keci Corporation, 26 DOE ¶ 80,659 (1997).

Once the material qualifies for withholding under Exemption 7, we consider whether release of the withheld material would result in one of the harms listed in Exemption 7. Ferguson v. Federal Bureau of Investigation, 957 F.2d 1059, 1065 (2d Cir. 1992). The OIG believes that withholding names and information that would tend to disclose the identity of certain individuals will protect their privacy "so that they will be free from harassment, intimidation and other personal intrusions." See Determination Letter at 2. We have previously stated that a name by itself does not create a protectable privacy interest for the purposes of FOIA exemption analysis. The News Tribune, 25 DOE ¶ 80,181 at 80,700 (1996). Rather, the privacy interest exists when a name is linked with information that reveals something personal or private about an individual. Id. at 80,699. In this case, many of the names in the OIG files are linked with job titles, dates of employment, and documents that reveal some personal information about the individual. We have stated previously that a person has a strong privacy interest in the fact that he or she was the subject of or interviewed during a potential criminal investigation. See Blumberg, Seng, Ikeda & Albers, 25 DOE ¶ 80,124 at 80,563 (1995); Jon Berg, 22 DOE ¶ 80,140 at 80,587 (1992). This is because linking a person with a potential criminal investigation would result in harassment and considerable embarrassment. Manna v. Department of Justice, 51 F.3d 1158, 1166 (3d Cir. 1995), cert. denied, 116 S. Ct. 477 (1995). Therefore, we find that the OIG was correct in withholding from McKinney not only the names of individuals involved in the Oak Ridge investigation, but identifying information as well.

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) (quoting 5 U.S.C. § 552(a)(4)(A)(iii)) (Reporters Committee). Case law dictates that information withheld under Exemption 7(C) falls within the public interest for the purposes of the FOIA only if "release of the information is likely to contribute significantly to public understanding of the operation of the government." Reporters Committee, 489 U.S. at 775. See also Department of Defense v. Federal Labor Relations Auth., 510 U.S. 487, 494-95 (1994).

The OIG found no fraud or criminal violation in this investigation. Releasing the names of those individuals whom the OIG concluded were not responsible for any fabrication of time cards or safety violations would add little to the public's knowledge of governmental activity. This office has consistently found that withholding the names of witnesses better serves the public interest because it allows witnesses to speak freely to government investigators without fear that their identities will be disclosed and that they will be subject to possible harassment. Lloyd R. Makey, 20 DOE ¶ 80,109 at 80,523-24 (1990); The Die-Gem Co., 19 DOE ¶ 80,124 at 80,569 (1989).

Therefore, we find that there is no public interest in the withheld information. The privacy interest of the named individuals outweighs the public interest in the release of the names of persons investigated. The public interest is satisfied by release of the facts and conclusions of the investigation. Robert E. Caddell, 20 DOE ¶ 80,103 at 80,508-09 (1990). See also McCutchen v. HHS, 30 F.3d 183 (D.C. Cir. 1994) (protecting the identities of scientists investigated and exonerated on charges of scientific misconduct).

C. Other Information Withheld

The OIG also withheld dates of letters and other documents and the subjects of letters and documents. The requester asks that some of this material be released to improve the "readability" of the documents. It is not the purpose of the FOIA appeal process to provide a requester with documents that are easy to read. However, we must provide the requester with all non-exempt material which may be reasonably segregated from withheld material. See 10 C.F.R. § 1004.10(c). In addition, we must provide this material unless it would pose an "inordinate burden" to do. We have reviewed the withheld documents, and find that some words that were redacted do not appear to be exempt under the FOIA. For example, in several documents, the same word is released in one sentence and redacted in another. Thus, we find that the documents should be reviewed to determine that all releasable information is segregated from the exempt material and provided to the requester in a consistent fashion as required by DOE regulations. See 10 C.F.R. § 1004.7(b)(3).

The appellant also requests the job title and name of a DOE employee, assigned to the Office of the General Counsel (OGC) at DOE Headquarters, who was interviewed in the course of this investigation. This information was withheld under Exemptions 6 and 7(C). The OIG advised us that they withheld that information to protect the employee's privacy. We concur with their withholding of portions of the record of the interview in order to protect the privacy of the employee. We find that the document has been appropriately redacted, and that the OIG properly released all non-exempt material to the requester.

It Is Therefore Ordered That:

(1) The Appeal filed by Burlin McKinney on March 3, 1997, Case Number VFA-0273, is hereby granted as specified in Paragraph (2) below, and is denied in all other respects.

(2) This matter is hereby remanded to the Office of Inspector General, which shall issue a new determination in accordance with the instructions set forth above.

(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: March 28, 1997

(1)The OIG has agreed that the redactions of personal pronouns were inconsistent. They have agreed to release personal pronouns in Documents 3, 5, 6, 7, 10, 11, 12, and 14. Also, because the word "supervisor" was released in Documents 13 and 16, that word will be released also. See Memorandum of Telephone Conversation between Jackie Becker, OIG, and Valerie Vance Adeyeye, OHA (March 12, 1997).