Case No. VFA-0282, 26 DOE ¶ 80,182

April 25, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Richard Levernier

Date of Filing: March 26, 1997

Case Number: VFA-0282

On March 26, 1997, Richard J. Levernier (Appellant) filed an Appeal from a final determination issued to him on February 28, 1997, by the Department of Energy's (DOE) Office of Inspector General (IG). In that determination, the IG released copies of 26 responsive documents in their entirety, withheld 27 documents in their entirety and released an additional 158 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, and conduct an additional search for responsive documents.

I. BACKGROUND

On February 28, 1997, the IG issued a determination letter in response to two requests

submitted by the Appellant. The first request (#93122201G) sought all information relating to him as the subject of an IG investigation. Determination Letter at 1. The second request (#RF94-054) sought ". . . any ?records,' including tape recordings, written transcripts or summaries, of recordings of telephone conversations between [him] and Wackenhut Services, Inc.-Rocky Flats Plant (WSI-RFP) personnel." Id. The determination letter released 26 documents in their entirety. However, the Determination letter also withheld 27 documents in their entirety as well as portions of 158 other documents under Exemptions 5, 6, 7(C) and 7(D). (1) On March 26, 1997, the Appellant filed the present Appeal, challenging these withholdings. In addition, the Appellant contends that the IG's search for responsive documents was inadequate because it failed to locate and identify documents located in the files of the former Office of Contractor Employee Protection (OCEP).

II. ANALYSIS

A. Adequacy of the Search

If a requester has reasonably described the information he or she is seeking and has complied with the DOE's FOIA regulations appearing at 10 C.F.R. Part 1004, the agency is obliged to conduct a thorough and conscientious search for responsive documents. We have not hesitated to remand a case where it is evident that the search conducted was in fact inadequate. See, e.g., Glen Milner, 17 DOE ¶ 80,132 (1988); Hideca Petroleum Corp., 9 DOE ¶ 80,108 (1981). However, the FOIA requires that a search be reasonable, not exhaustive. "[T]he standard of reasonableness which we apply to agency search procedures does not require absolute exhaustion of the files; instead, it requires a search reasonably calculated to uncover the sought materials." Miller v. Department of State, 779 F.2d 1378, 1385 (8th Cir. 1985); accord Weisberg v. Department of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984); see also Oglesby v. Department of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990) (and cases cited therein).

The Appellant alleges that the IG's search for responsive documents was inadequate because it did not recover any files from OCEP. At the time when the Appellant filed the requests for information at issue in the present case, OCEP was not part of the IG. The Appellant had filed a separate request with OCEP. In response to that request, OCEP issued a determination letter on March 31, 1994 which released to him all documents in its possession that were responsive to his request. Accordingly, the IG was not required to include OCEP's files in its search for documents responsive to the present requests. However, the IG searched the files again and found no responsive documents that had not already been provided to the Appellant. For these reasons, we find that the Appellant has not shown that IG's search for documents responsive to FOIA requests #93122201G and #RF94-054 was inadequate.

B. Whether the IG's Withholdings Were Proper

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. Exemptions 5, 6, 7(C) and 7(D) are at issue in the present case.

1. Withholdings under Exemption 5

The IG withheld one document in its entirety (Document 172) and portions of an additional six documents (Documents 6, 104, 120, 125, 132 and 180) under Exemption 5's deliberative process privilege. Exemption 5 protects "inter-agency or intra-agency memorandums or letters which would not be available by law to a party … in litigation with the agency." 5 U.S.C. § 552(b)(5). The language of Exemption 5 has been construed to "exempt those documents, and only those documents, normally privileged in a civil discovery context." NLRB v. Sears Roebuck & Co., 421 U.S. 132, 149 (1975) (Sears).

Courts have recognized several privileges incorporated into Exemption 5, including the deliberative process privilege. To fall within the scope of the deliberative process privilege, a document must be: (1) predecisional, that is, antecedent to the adoption of an agency policy; and (2) deliberative, that is, recommending or expressing an opinion on legal or policy matters. Mapother v. Department of Justice, 3 F.3d 1533, 1537 (D.C. Cir. 1993); Petroleum Info. Corp. v. United States Dep't of the Interior, 976 F.2d 1429, 1434 (D.C. Cir. 1992); Jordan v. United States Dep't of Justice, 591 F.2d 753, 774 (D.C. Cir. 1978); Vaughn v. Rosen, 523 F.2d 1136, 1143-44 (D.C. Cir. 1975); See also Benedetto Enterprises, Inc., 19 DOE ¶ 80,106 (1989); Darci L. Rock, 13 DOE ¶ 80,102 (1985).

This privilege was developed primarily to promote frank and independent discussion among those responsible for making government decisions. EPA v. Mink, 410 U.S. 73, 87 (1973) (Mink) (quoting Kaiser Aluminum & Chem. Corp. v. United States, 157 F. Supp. 939, 946 (Cl. Ct. 1958)). The ultimate purpose of the exemption is to protect the quality of the agency decisions. Sears, 421 U.S. at 151. 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.

Even then, however, the exemption only covers the subjective, deliberative portion of the document. Mink, 410 U.S. at 87-91. The FOIA, as implemented by 10 C.F.R. § 1004.10(c), requires that "[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection." 5 U.S.C. § 552(b). The only exceptions to the command of segregation are where exempt and non-exempt material are so "inextricably intertwined" that release of the non-exempt material would compromise the exempt material, Lead Industries Assoc., Inc. v. Occupational Safety and Health Admin., 610 F.2d 70, 85 (2d Cir. 1979), or where non-exempt material is so small and interspersed with exempt material that it would pose "an inordinate burden" to segregate it. Id.

In order to review the IG's withholdings under Exemption 5, we obtained copies of a representative sample of the documents it withheld under Exemption 5 (Documents 104, 120, 132, 172 and 180) from the IG. Our review of these documents has revealed that these documents contain some information which is strictly factual in nature. Accordingly, we find that IG had failed to properly segregate factual material from the information it withheld under Exemption 5.

Moreover, our review indicates that the IG has withheld more information than necessary to ensure that its deliberative process would not be revealed. Accordingly, we are remanding this portion of the Appeal to the IG. On remand, the IG should review all the information it has withheld in all seven documents under the deliberative process privilege in order to determine if it is both predecisional and deliberative. In addition, the IG must segregate and release any factual information contained in the withheld portions of those document that are not inextricably intertwined with withheld information. The IG must then issue a new determination letter in which it releases this information, withholds it under other applicable FOIA exemptions, or better explains why it considers the information to be predecisional and deliberative.

In our view, release of the vast majority of the information withheld under Exemption 5 in these documents would pose no tangible risk to interests protected under the FOIA. Accordingly, we find that the IG must review all of its withholdings under Exemption 5 to ensure that they are appropriate under the "reasonably foreseeable harm" standard set forth by the Attorney General in 1993. This standard applies a presumption in favor of disclosure which, in the absence of a reasonably foreseeable harm to an interest protected by an exemption, should result in a determination by the agency that the public interest lies with disclosure. See J. Reno, Memorandum for Heads of Departments and Agencies (October 4, 1993). On remand, after properly segregating and releasing factual material, the IG should consider the possibility of releasing some or all of the Exemption 5 material in light of this standard.

2. Exemptions 6 & 7(C)

The IG withheld approximately 26 documents in their entirety and portions of numerous other documents under Exemptions 6 and 7(C) claiming that release of the withheld information would reveal the identities of potential witnesses, informants and confidential sources. The Appellant generally 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. Ortiz v. U.S. Dept. of Health and Human Services, 70 F.3d 729, 732-33 (2nd Cir. 1995) (Ortiz) ("An Inspector General of a federal government agency engages in law enforcement activities within the meaning of FOIA") and cases cited therein. 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 involved here 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.

Among the information withheld by the IG in order to protect the identity of individuals whose names appear in IG's files were some recordings and transcripts of telephone conversations that the Appellant had participated in. Because release of these transcripts could reasonably be expected to reveal the identity of an individual or individuals that provided information to the IG, we find that the IG properly withheld these documents in their entirety under Exemptions 6 and 7(C).

3. Exemption 7(D)

The IG has withheld six documents under Exemption 7(D), claiming that: (1) release of this information would reveal confidential sources, or (2) the information was supplied by confidential sources. Determination Letter at 2. Exemption 7(D) allows for the withholding of "Records or information compiled for law enforcement purposes [which] could reasonably be expected to disclose the identity of a confidential source . . . [or] information furnished by a confidential source." 5 U.S.C. § 552(b)(7)(D) (1994). "Exemption 7(D) is meant to (1) protect confidential sources from retaliation that may result from the disclosure of their participation in law enforcement activities, see Brant Construction v. United States EPA, 778 F.2d 1258, 1262 (7th Cir. 1985), and (2) ?encourage cooperation with law enforcement agencies by enabling the agencies to keep their informants' identities confidential.' United Technologies Corp. v. NLRB, 777 F.2d 90, 94 (2d Cir. 1985)." Ortiz v. U.S. Dept. of Health and Human Services, 70 F.3d 729, 732 (2nd Cir. 1995) (Ortiz). As the court stated in Ortiz: "[A] source is confidential within the meaning of Exemption 7(D) if the source ?provided information under an express assurance of confidentiality or in circumstances from which such an assurance could be reasonably inferred.'" Id. Citing United States v. Landano, 508 U.S. 165; 113 S.Ct. 2014, 2019 (1993). Accordingly, we find that the information withheld by the IG under this exemption was properly withheld.

III. CONCLUSION

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 whose identities are contained in IG's files. By releasing the responsive documents with only those withholdings necessary to prevent identification of specific individuals, the agency can provide as much information as possible while safeguarding individual privacy rights and safety.

For the reasons set forth above, we have found that the Office of Inspector General's search for responsive documents was adequate and that its withholdings under Exemptions 6, 7(C) and 7(D) were appropriate. However, we are remanding a portion of this Appeal to the IG for further consideration of the applicability of Exemption 5 as set forth above.

It Is Therefore Ordered That:

(1) The Freedom of Information Act Appeal filed by Richard Levernier on March 26, 1997 (Case Number VFA-0282) is hereby granted in part as set forth in Paragraph (2) and denied in all other aspects.

(2) This matter is hereby remanded to the Office of Inspector General for further processing 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 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 25, 1997

(1) In addition, the determination letter explained that the IG had not released an additional 13 responsive documents that it assumed the Appellant had previously obtained, and had referred a total of 26 documents to other DOE offices for further processing under the FOIA.