Case No. VFA-0274 26 DOE ¶ 80,174

April 1, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Richard J. Levernier

Date of Filing: March 5, 1997

Case Number: VFA-0274

On March 5, 1997, Richard J. Levernier (Levernier) filed an Appeal from a determination issued to him on February 27, 1997, by the Office of the Inspector General (OIG) of the Department of Energy (DOE). That determination denied in part Levernier'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.

The FOIA requires that agency records held by a covered branch of the federal government, and not made public in an authorized manner, generally be released to the public upon request. 5 U.S.C. § 552(a)(3). The FOIA also lists nine exemptions that set forth the types of information that may be withheld at the discretion of the agency. 5 U.S.C. § 552(b)(1)-(b)(9);10 C.F.R. § 1004.10(b)(1)-(b)(9). The DOE regulations further provide that documents exempt from mandatory disclosure will nonetheless be released to the public if the DOE determines that disclosure is not contrary to federal law and is in the public interest. 10 C.F.R. § 1004.1.

I. Background

In a January 29, 1997 FOIA request, Levernier requested a copy of an OIG report regarding the investigation of allegations that an individual at the DOE's Rocky Flats Environmental Technology Site (Rocky Flats) tape recorded telephone conversations. OIG provided Levernier redacted copies of two documents in its February 27, 1997 determination letter. One of the documents was an OIG Abstract Report of Inspections entitled "Alleged Tape Recording of Conversations at the Rocky Flats Environmental Technology Site and Other Management Issues" (Abstract). The other document was a memo from the Deputy Inspector General for Inspections to various DOE officials which described the findings and conclusions in the Abstract (Memo). In its determination letter, OIG stated that names and other information which would tend to disclose the identity of individuals who provided information to OIG were withheld from the released copies of the Memo and Abstract pursuant to Exemptions 6 and 7(C) of the FOIA. OIG noted in its determination letter that

Exemption 6 protects from disclosure "personnel and medical and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." OIG also noted that Exemption 7(C) provides protection from disclosure for records or information compiled for law enforcement purposes but only to the extent that production of such documents could reasonably be expected to constitute an unwarranted invasion of personal privacy. OIG concluded that individuals named in the Abstract and Memo were entitled to protection from harassment or other personal intrusions and that the public interest in the identity of the individuals whose names appear in these documents does not outweigh the individuals' privacy interests.

Levernier challenges the OIG's withholding of material from the Memo and Abstract and asserts a number of arguments. First, Levernier argues that the documents at issue do not qualify for Exemption 6 protection since the documents are not "personnel, medical or similar files." Second, Levernier argues that the documents are not protected by Exemption 7(C) since they were not records or information compiled for law enforcement purposes. In support of this argument, Levernier asserts that the OIG Office of Inspections is responsible for only the following functions: (1) inspections and analyses; (2) reviews based on administrative allegations received by the OIG; and (3) processing Inspector General referrals to DOE management for appropriate action. He alleges that none of these functions relate to law enforcement. Lastly, Levernier argues that DOE and DOE contractor personnel should not be entitled to any privacy protections for decisions and actions they made in the course of their official duties.

II. Analysis

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). 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. There are, however, two significant differences between Exemptions 6 and 7(C). Under Exemption 7 (C), the withheld information must be compiled as a part of, or in connection with, an agency law enforcement proceeding. FBI v. Abramson, 456 U.S. 615, 622 (1982). 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).

Initially, we must reject Levernier's arguments regarding the non-law enforcement nature of the Abstract and Memo and find that these documents were compiled for a law enforcement purpose. The Exemption 7 "law enforcement" exception to mandatory release of information under the FOIA encompasses compliance with both civil and criminal statutes. Rural Housing Alliance v. Department of Agriculture, 498 F. 2d. 73, 81 n.46 (D.C. Cir 1974). The OIG is charged with investigating and correcting waste, fraud and 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). Both documents were created in connection with an OIG investigation concerning possible violation of DOE regulations and orders as a result of the taping of telephone conversations by an individual employed at Rocky Flats. Consequently, we find that the Memo and Abstract were compiled for law enforcement purposes within the meaning of Exemption 7(C).

In evaluating this Appeal, we have reviewed unredacted copies of the Memo and Abstract. The material withheld by the OIG consists of the names of the individuals who provided information referenced in the documents along with certain words or phrases whose release, OIG asserts, would also disclose the identities of the individuals when viewed in combination with the released information in the documents. In determining whether the release of the names in the Abstract and Memo could be reasonably expected to constitute an unwarranted invasion of personal privacy, we note that the courts have used a balancing test which weighs the privacy interests that would be infringed against the public's interest in disclosure. Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 762 (1989) (Reporters Committee). We have consistently found that subjects, sources and witnesses mentioned in OIG files have a strong privacy interest in remaining anonymous. See Blumberg, Seng, Ikeda & Albers, 25 DOE ¶ 80,124 (1995).

In his Appeal, however, Levernier has argued that DOE officials and contractor personnel should not be entitled to privacy protections for actions taken in the course of their official duties. This argument is without merit. While we recognize that federal employees have a smaller expectation of privacy than private citizens, a privacy interest nevertheless exists when the association of a federal or contractor employee's name with a law enforcement file could subject the employee to harassment and embarrassment. See KTTY-TV v. U.S., 919 F.2d 1465 (10th Cir 1990) (interviewees mentioned in U.S. Postal Service investigation report found to have a legitimate privacy interest in not being harassed or embarrassed by other persons); but see William H. Payne, 25 DOE ¶ 80,190 (1996) (federal employees have diminished privacy interest because of public interest in knowing how public employees are doing their jobs). Thus, an individual's privacy interest exists whether or not an investigation concerns actions taken in the course of the individual's official duties. Accordingly, we find that the individuals in the present case have a strong privacy interest.

We further find there is little, if any, public interest in revelation of the names of the individuals in the documents at issue. In Reporters Committee, the Supreme Court held that the public interest which is to be considered in the FOIA context is limited to that which sheds light on government activities and

operations. 489 U.S. at 773-75. Release of the names in the Memo and Abstract would simply produce no additional information regarding OIG activities or operations. Consequently, the balance of these factors in the present case indicates that the release of the names would constitute an unwarranted invasion of personal privacy.

The remaining information which was deleted from the Abstract and Memo consists of scattered descriptive words or phrases. Under Exemptions 6 and 7(C), names and other information that would tend to disclose the identity of individuals entitled to privacy protection may be withheld. Southwest Resource Development, 24 DOE ¶ 80,164 (1995) (Southwest). Within the context of the released portions of the Abstract and Memo, these words and phrases might identify an individual by disclosing certain functions performed by that individual. See Southwest. As discussed above, in this case, the little public interest in the identity of the individuals whose names have been deleted from the Abstract and Memo does not outweigh these individuals' privacy interest in being free from intrusion into their private lives. Consequently, the release of identifying information would constitute a clearly unwarranted invasion of privacy. Accordingly, because OIG properly applied Exemption 7(C) to the withheld information in the Abstract and Memo, this Appeal should be denied.

It Is Therefore Ordered That:

(1) The Freedom of Information Act Appeal filed by Richard J. Levernier, OHA Case No. VFA-0274, is hereby denied.

(2) 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: April 1, 1997