Case No. VFA-0275, 26 DOE ¶ 80,171

March 28, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Alexander German

Date of Filing: March 11, 1997

Case Number: VFA-0275

On March 11, 1997, Alexander German (Appellant) filed an Appeal from a final determination issued on February 7, 1997, by the Department of Energy's (DOE) Office of Inspector General (IG). In that determination, the IG released copies of 14 responsive documents in their entirety and an additional 11 responsive documents from which information had been deleted. This partial release occurred in response to a request for information filed under the Freedom of Information Act (FOIA), 5 U.S.C. § 552(b), 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

The Appellant submitted a request for information to the DOE seeking copies of all documents regarding "reports to the IG by employee hotline regarding Case No. I95RS080." Determination Letter at 1. On February 7, 1997, the IG issued a determination in response to this request releasing 14 documents in their entirety and withholding portions of 11 other documents under Exemptions 6 and 7(C). The withheld portions consist of names, and other identifying information, of certain individuals. On March 13, 1997, the Appellant filed the present Appeal, contending that the DOE's withholding of the deleted information was improper.

II. ANALYSIS

While the FOIA generally requires that information held by government agencies be released to the public upon request, Congress has provided nine exemptions to the FOIA which set forth the types of information agencies are not required to release. Only Exemptions 6 and 7(C) are at issue in the present case.

In the determination letter, the IG claims that release of the withheld information would reveal the identities of potential witnesses, informants and confidential sources. Since release of these individuals' identities might subject them to harassment, intimidation or other personal intrusions, the IG has withheld them under both Exemptions 6 and 7(C). The Appellant contends that the IG improperly applied these exemptions.

Exemption 6 shields from disclosure "[p]ersonnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6); 10 C.F.R. § 1004.10(b)(6). The purpose of Exemption 6 is to "protect individuals from the injury and embarrassment that can result from the unnecessary disclosure of personal information." Department of State v. Washington Post Co., 456 U.S. 595, 599 (1982).

Exemption 7(C) allows an agency to withhold "records or information compiled for law enforcement purposes, if release of such law enforcement records or information . . . 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 such information is compiled 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); Williams v. IRS, 479 F.2d 317, 318 (3d Cir. 1973), cert. denied sub nom. Donolon v. IRS, 414 U.S. 1024 (1973). By law, the IG is charged with investigating waste, fraud, and abuse in programs and operations administered or financed by the DOE. 5 U.S.C. Appendix 3 § 4. The IG is therefore a classic example of an organization with a clear law enforcement mandate. In the present case the IG's investigatory actions were clearly within this statutory mandate.

In order to determine whether a record may be withheld under either Exemption 6 or 7(C), an agency must undertake a three-step analysis. First, the agency must determine whether or not a significant privacy interest would be compromised by the disclosure of the record. If no privacy interest is identified, the record may not be withheld pursuant to either of the exemptions. Ripskis v. Department of Hous. and Urban Dev., 746 F.2d 1, 3 (D.C. Cir. 1984) (Ripskis). Second, the agency must determine whether or not release of the document would further the public interest by shedding light on the operations and activities of the Government. See Reporters Committee for Freedom of the Press v. Department of Justice, 109 S. Ct. 1468, 1481 (1989) (Reporters Committee). Finally, the agency must weigh the privacy interests it has identified against the public interest in order to determine whether release of the record either (1) would constitute a clearly unwarranted invasion of personal privacy (the Exemption 6 standard), or (2) could reasonably be expected to constitute an unwarranted invasion of personal privacy (the Exemption 7(C) standard). See generally Ripskis, 746 F.2d at 3.

We have previously considered cases in which both Exemption 6 and 7(C) were invoked, and we stated that in such cases, provided the Exemption 7 threshold of law enforcement purpose is met, we would analyze the withholding only under Exemption 7(C), the broader of the two exemptions. See, e.g., K.D. Moseley, 22 DOE ¶ 80,124 (1992); James L. Schwab, 21 DOE ¶ 80,117 (1991); James E. Phelps, 20 DOE ¶ 80,169 (1990); Lloyd R. Makey, 20 DOE ¶ 80,109 (1990); Jerry O. Campbell, 17 DOE ¶ 80,132 (1988). Since all of the documents were compiled for law enforcement purposes, any document that satisfies Exemption 7(C)'s "reasonableness" standard will be protected. Conversely, documents not protected by Exemption 7(C) will be unable to satisfy Exemption 6's more restrictive requirement that they constitute a clearly unwarranted invasion of personal privacy.

(1) Privacy Interest

Because of the obvious possibility of harassment, intimidation, or other personal intrusions, the courts have consistently recognized significant privacy interests in the identities of individuals providing information to government investigators. Safecard Services, Inc. v. S.E.C., 926 F.2d 1197 (D.C. Cir. 1991) (Safecard); KTVY-TV v. United States, 919 F.2d 1465, 1469 (10th Cir. 1990) (KTVY-TV) (finding that withholding identity necessary to avoid harassment of individual); Cucarro v. Secretary of Labor, 770 F.2d 355, 359 (3d Cir. 1985) (Cucarro); James L. Schwab, 21 DOE ¶ 80,117 at 80,556 (1991); Lloyd R. Makey, 20 DOE ¶ 80,524 (1990). Accordingly, we find that the individuals whose identities are being withheld in this case have significant privacy interests in maintaining their confidentiality.

(2) Public Interest in Disclosure

In Reporters Committee, the Supreme Court greatly narrowed the scope of the public interest in the context of the FOIA. Justice Stevens, writing for the Court, distinguished between the general benefits to the public that may result from the release of information, and those benefits that Congress sought to provide the public when it enacted the FOIA. He found that in FOIA contexts, the public interest in disclosure must be measured in terms of its relation to the FOIA's core purpose. Reporters Committee, 109 S. Ct. at 1481-84. The Court identified the core purpose of the FOIA as "public understanding of the operations or activities of the Government." Id. at 1483. Therefore, the Court held, only that information which contributes significantly to the public's understanding of the operations or activities of the Government is within "the ambit of the public interest which the FOIA was enacted to serve." Id. The Court therefore found that unless the public would learn something directly about the workings of government from the release of a document, its disclosure is not "affected with the public interest." Id.; see also National Ass'n of Retired Employees v. Horner, 879 F.2d 873, 879 (D.C. Cir. 1989); cert. denied, 494 U.S. 1078 (1990).

It is well settled that disclosure of the identity of individuals who have provided information to government investigators is not "affected with the public interest." See, e.g., Safecard, 926 F.2d at 1205; KTVY-TV, 919 F.2d at 1469. In the absence of a compelling reason for deviating from this body of precedent, we reach that conclusion in the present case.

(3) The Balancing Test

Because release of the individuals' identities could reasonably be expected to subject them to harassment or intimidation or other personal intrusions, we find that significant privacy interests exist for these individuals. After weighing the significant privacy interests present in this case against an insubstantial or non-existent public interest, we find that release of information revealing the individuals' identities could reasonably be expected to constitute an unwarranted invasion of personal privacy. Our findings are consistent with those reached by several appellate courts. When presented with a similar set of facts, these courts have found that the privacy interests of individuals supplying information to government investigators clearly outweigh the negligible public interest in disclosure of these individuals' identities. See, e.g., Safecard; KTVY-TV, 919 F.2d at 1469 (finding withholding necessary to avoid harassment of individual); Cucarro, 770 F.2d at 359.

While we are strongly committed to keeping the public fully informed about the DOE, we are also concerned about preserving the privacy rights of individuals providing information to the IG's investigators. By releasing the responsive documents with only those redactions necessary to prevent identification of specific individuals, the agency has provided as much information as possible while safeguarding individual privacy rights.

III. CONCLUSION

On the basis of the facts presented and federal case law, we find significant privacy interests in the individuals' identities. We also find that disclosure would not significantly increase the public's understanding of the operations and activities of the government. Accordingly, we find that this information was properly withheld under Exemptions 6 and 7(C).

It Is Therefore Ordered That:

(1) The Freedom of Information Act Appeal filed by Alexander German on March 11, 1997 (Case Number VFA-0275) 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: March 28, 1997