Case No. VFA-0279, 26 DOE ¶ 80,180

April 24, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Robert B. Freeman

Date of Filing: March 21, 1997

Case Number: VFA-0279

On March 21, 1997, Robert B. Freeman filed an Appeal from a determination issued on February 13, 1997, by the Western Area Power Administration (WAPA). The determination responded to a request for information filed under the Privacy Act, 5 U.S.C. § 552a, as implemented by the Department of Energy (DOE) in 10 C.F.R. Part 1008.

The Privacy Act requires each federal agency to, inter alia, permit an individual to gain access to information about that individual which is contained in any "system of records" maintained by the agency. 5 U.S.C. § 552a(d); 10 C.F.R. § 1008.6(a)(2). Also relevant to the present appeal is the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004. The FOIA generally requires that documents held by the federal government be released to the public upon request. However, Congress has provided nine exemptions to the FOIA that set forth the types of information agencies are not required to release. Under the DOE's regulations, a document exempt from disclosure under the FOIA shall nonetheless be released to the public whenever the DOE determines that disclosure is not contrary to federal law and in the public interest. 10 C.F.R. § 1004.1.

I. Background

On January 27, 1997, Mr. Freeman requested from WAPA documents "related to an adverse determination made by James Biggs [a WAPA manager] in a questionable fitness for duty matter." Letter from Robert B. Freeman to J.M. Schafer, WAPA (Jan. 27, 1997). Specifically, Mr. Freeman requested, inter alia, information provided by WAPA to a psychologist, Dr. Torres, and a psychiatrist, Dr. Kendall, who evaluated Mr. Freeman, as well as the "complete raw data and test results" from both doctors' evaluations. Id.

WAPA issued a determination on February 13, 1997, in which it released certain information responsive to Mr. Freeman's request. Letter from Michael L. Watkins, Privacy Act Officer, WAPA, to Robert B. Freeman (Feb. 13, 1997). However, WAPA withheld several documents in their entirety, citing provisions of the Privacy Act and DOE regulations that exempt from disclosure "information compiled in reasonable anticipation of a civil action or proceeding." 5 U.S.C. § 552a(d)(5); 10 C.F.R. § 1008.9(a)(2). WAPA also withheld the raw data and test results from both doctors' evaluations. The Privacy Act authorizes federal agencies to establish a "special procedure, if deemed necessary, for the disclosure to an individual of medical records, including psychological records, pertaining to him." 5 U.S.C. § 552a(f)(3). The applicable DOE procedure is set forth at 10 C.F.R. § 1008.8(c)-(e). The Privacy Act officer stated in WAPA's determination:

Both Dr. Torres and Dr. Kendall have strongly recommended that information pertaining to Dr. Torres' evaluation not be provided to you.

It is my understanding that you have provided your manager with the name of a physician . . . . Upon verification of the physician's identity, the documents will be made available to the physician, who will then have full authority to disclose the documents to you.

Letter from Michael L. Watkins, WAPA, to Robert B. Freeman at 2.

Upon receiving Mr. Freeman's Appeal, we contacted the Appellant by telephone. He told us that medical records were released to his designated physician and were read to him, but that he never obtained physical possession of the documents. Memorandum of telephone conversation between Robert Freeman and Steven Goering, OHA (Apr. 1, 1997). After we contacted WAPA to inquire about this, WAPA contacted the physician, who then released these documents to Mr. Freeman. However, Mr. Freeman stated that his physician never received certain materials from Dr. Torres, such as diagnostic tests performed on him. Memorandum of telephone conversation between Robert Freeman and Steven Goering, OHA (Apr. 4, 1997).

II. Analysis

A. Material Provided by WAPA to Dr. Torres

The Privacy Act exempts from release "any information compiled in reasonable anticipation of a civil action or proceeding." 5 U.S.C. § 552a(d)(5). The exemption "is not limited to an attorney's work product, but extends to any records compiled by counsel or other persons in reasonable anticipation of a civil action or proceeding." Hernandez v. Alexander, 671 F.2d 402, 408 (10th Cir. 1982) (citing Smiertka v. Department of Treasury, 447 F. Supp. 221, 227-28 (D.D.C. 1978)).

In the present case, WAPA withheld certain information from Mr. Freeman that it states was "prepared in reasonable anticipation of a civil action and/or administrative proceedings between [WAPA] and the American Federation of Government Employees." The withheld documents consist of printed electronic mail and draft memoranda dated from July through September 1996, and pertaining to a decision by WAPA in September 1996 to eliminate one helicopter from its fleet. In its response to the present Appeal, WAPA provided copies of two unfair labor practice charges that were filed in October 1996 by the American Federation of Government Employees (AFGE). At issue in one of these cases is WAPA's decision to eliminate one helicopter (which had been flown by the Appellant) without first entering into negotiations with AFGE. The other charge relates to an earlier decision by a WAPA manager to remove the Appellant from flight duty. These charges were filed with the Federal Labor Relations Authority (FLRA), and are currently under investigation. WAPA advises us that, depending on the outcome of the investigation, these charges could result in a hearing before the FLRA.

We do not agree with WAPA that the documents at issue were compiled "in reasonable anticipation" of a civil action or proceeding. The federal courts offer us scant guidance in interpreting the meaning of the phrase "in reasonable anticipation" as it is used in the Privacy Act. However, in applying the attorney work product privilege, the courts have often had to determine whether documents are prepared in anticipation of litigation and are thus protected by the privilege. And it is clear from those cases that documents qualify for the privilege only if the anticipation of litigation was at least one factor in the decision to compile the documents. Indeed, several courts have found that in order for the privilege to apply the anticipation of litigation must be "the primary motivating purpose behind the creation of the document." United States v. Rockwell Int'l, 897 F.2d 1255, 1266 (3d Cir. 1990); United States v. Gulf Oil Corp., 760 F.2d 292, 296 (Temp. Emer. Ct. App. 1985); Binks Mfg. Co. v. National Presto Indus., 709 F.2d 1109, 1119 (7th Cir. 1983) (quoting Janicker v. George Washington Univ., 94 F.R.D. 648, 650 (D.D.C. 1982)); United States v. El Paso Co., 682 F.2d 530, 542 (5th Cir. 1982); see also C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 2024 (1994) ("[T]he test should be whether, in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation."). This interpretation, as applied to the Privacy Act, is in accord with guidance issued by the Office of Management and Budget shortly after the enactment of the Act. Responsibilities for the Maintenance of Records About Individuals by Federal Agencies, 40 Fed. Reg. 28948, 28960 (July 9, 1975) ("[T]he purpose of the compilation governs the applicability of [subsection (d)(5)].")

It is true that the documents at issue were all prepared between one week and three months before the AFGE's charges were filed, and all relate to either WAPA's decision to eliminate the helicopter from its fleet or the WAPA manager's decision to remove the Appellant from flight duty. Because a primary issue discussed with the AFGE at the time concerned whether WAPA's decision needed to be negotiated with the union beforehand, it was entirely reasonable for WAPA to anticipate that, once its decision was made, AFGE would file an unfair labor practice charge. Moreover, these documents were later compiled and provided to one of the doctors who evaluated Mr. Freeman to determine his fitness to fly. Thus, the documents were both created and later compiled as part of a decision-making process that quickly led to reasonably anticipated charges against the agency. However, we have no reason to believe that the documents in question were generated because of WAPA's anticipation of those charges being filed. Rather, we believe that the documents would have been created as part of the decision-making process whether or not WAPA anticipated that the decision finally taken would lead to a civil action or proceeding. We therefore find that these documents may not be withheld under subsection (d)(5) of the Privacy Act.

Moreover, even if a Privacy Act exemption were properly invoked by WAPA, information that is exempt from disclosure under the Privacy Act must be released to a requester unless it is also exempt from disclosure under the FOIA. 5 U.S.C. § 552a(t)(2). Thus, it is the general practice of the DOE to process a request by an individual for information about that individual under both the Privacy Act and the FOIA. Even if, as in the present case, a requester specifically requests records under the Privacy Act, it well serves administrative efficiency and the requester to process the request under the FOIA as well, rather than requiring the requester to file a separate FOIA request for the same records. Accordingly, we will remand this case to WAPA for a new determination either releasing the information withheld under subsection (d)(5) of the Privacy Act, or explaining why the information is otherwise exempt under the Privacy Act and also exempt under the FOIA.(1)

B. Records in the Possession of Dr. Torres Not Provided to the Appellant

As we stated above, Mr. Freeman has requested certain records related to Dr. Torres' evaluation that have not yet been provided to him. Our threshold inquiry regarding these records is whether they are subject to the FOIA. First, we must determine whether such records are "agency records," and thus subject to the FOIA, under the criteria set out by the federal courts. See 5 U.S.C. § 552(f). Second, records that do not meet these criteria can nonetheless be subject to release under the DOE regulations. 10 C.F.R. § 1004.3(e); see 59 Fed. Reg. 63,884 (December 12, 1994). Finally, we must determine whether these documents are contained in a "system of records," and thus subject to the Privacy Act. After reviewing this matter, for the reasons stated below we conclude that the records in question are not subject to the FOIA or the Privacy Act, and are not subject to release under DOE regulations.

The statutory language of the FOIA does not define the essential attributes of "agency records," but merely lists examples of the types of information required to be made available to the public. See 5 U.S.C. § 552(a). In interpreting this phrase, we have applied a two-stage analysis fashioned by the courts for determining whether documents created by entities that contract with the DOE are subject to the FOIA. 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) (Gibbs). That analysis involves a determination (i) whether the entity is an "agency" for purposes of the FOIA, and if not, (ii) whether the requested material is nonetheless an "agency record." See Gibbs, 16 DOE at 80,595.

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 which 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 entity 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). Because the structure and daily operations of Dr. Torres' practice are not subject to substantial federal control, it is not an "agency" subject to the FOIA.

Although Dr. Torres' medical practice is not an agency for the purposes of the FOIA, his records responsive to Mr. Freeman's request could become "agency records" if they were obtained by the DOE and were within the 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.(2)

Even if a document fails to qualify as an "agency record," it may still be subject to release if the contract between the DOE and an outside party 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).

In the present case, there was no written or oral agreement between the DOE and Dr. Torres that any records generated by Dr. Torres would be the property of the Government. Memorandum of telephone conversation between Ronald Klinefelter, WAPA, and Steve Goering, OHA (Apr. 10, 1997). Because the records in question are not the property of the Government, they are not subject to release under the DOE regulations. Thus, we find that the medical records in the possession of Dr. Torres sought by the Appellant are neither "agency records" within the meaning of the FOIA, nor subject to release under DOE regulations.

In order to be subject to release under the Privacy Act, the records in questions would have to be contained in a "system of records," which the Act defines as "a group of any records under the control of any agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual." 5 U.S.C. § 552a(a)(5). As we have already established above, the records sought by Mr. Freeman that are in the custody of Dr. Torres have never been under the control of the DOE. Therefore, they are not contained in a "system of records" subject to the Privacy Act.

III. Conclusion

For the reasons stated above, we will grant Mr. Freeman's Appeal to the extent that we will remand this matter to WAPA to process the Appellant's request under both the Privacy Act and the FOIA. On remand, WAPA should issue a new determination releasing to Mr. Freeman the material it provided to Dr. Torres that is not exempt under both the FOIA and the Privacy Act. Further, WAPA should withhold exempt information only if it reasonably foresees that disclosure would be harmful to an interest protected by the relevant exemption under the FOIA. In all other respects, the present Appeal will be denied.

It Is Therefore Ordered That:

(1) The Appeal filed by Robert B. Freeman on March 21, 1997, Case Number VFA-0279, is hereby granted as specified in Paragraph (2) below, and is denied in all other respects.

(2) This matter is hereby remanded to the Western Area Power Administration, which shall issue a new determination in accordance with the instructions set forth in the above Decision and Order.

(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: April 24, 1997

(1) Segregation and release of non-exempt material is not necessary where it is "inextricably intertwined" with the exempt material so that release of the non-exempt material would "compromise" the withheld material, or where the amount of non-exempt material is small and so interspersed with exempt material that it would pose "an inordinate burden" to segregate. Lead Indus. Ass'n v. OSHA, 610 F.2d 70, 83-86 (2d Cir. 1979).

(2) Segregation and release of non-exempt material is not necessary where it is "inextricably intertwined" with the exempt material so that release of the non-exempt material would "compromise" the withheld material, or where the amount of non-exempt material is small and so interspersed with exempt material that it would pose "an inordinate burden" to segregate. Lead Indus. Ass'n v. OSHA, 610 F.2d 70, 83-86 (2d Cir. 1979).

(3) Dr. Torres did send copies of certain medical records to WAPA, but these were copies of the records that Dr. Torres forwarded to Dr. Kendall, which were in turn provided to Mr. Freeman's designated physician, and which have now been provided to Mr. Freeman. Memoranda of telephone conversations between Ronald Klinefelter, WAPA, and Steve Goering, OHA (Apr. 7, 1997, and Apr. 9, 1997). Thus, although these records qualify as "agency records" under the test set forth by the federal courts, they have already been provided to the Appellant.