Case No. VFA-0287, 26 DOE ¶ 80,186

May 9, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: John D. Kasprowicz

Date of Filing: April 15, 1997

On April 15, 1997, John D. Kasprowicz filed an Appeal from a determination issued to him by the Manager of the Department of Energy's (DOE) Chicago Operations Office (hereinafter referred to as "the Manager"). This determination was issued on April 7, 1997 in response to a request for information submitted under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004. The Appeal, if granted, would require that a document that was released to Mr. Kasprowicz in redacted form be released in its entirety.

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 that is exempt from disclosure under the FOIA shall nonetheless be released to the public whenever the DOE determines that disclosure is in the public interest. 10 C.F.R. § 1004.1.

I. Background

In his FOIA request, Mr. Kasprowicz sought access to a copy of a November 22, 1996 memorandum from the Acting Chief Counsel of the Chicago Operations Office to the U.S. Attorney for the Northern District of Illinois. In this document, the Acting Chief Counsel discussed the issue of whether the Department of Justice (DOJ) should provide legal counsel for Mr. Kasprowicz and certain other DOE employees who were named as defendants in a civil lawsuit.

In her determination, the Manager found that portions of the memorandum were exempt from mandatory release under 5 U.S.C. § 552(b)(5) and 552(b)(6) (Exemptions 5 and 6, respectively). Citing Exemption 5, the Manager withheld those portions of the memorandum that describe the Acting Chief Counsel's position as to whether the employees should receive DOJ representation. Exemption 5 shields from mandatory disclosure "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).(1) The Manager further determined that the names of the DOE employees, other than Mr. Kasprowicz, who have requested DOJ representation should be withheld pursuant to Exemption 6. Exemption 6 protects from mandatory disclosure "personnel 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).

In his Appeal, Mr. Kasprowicz does not contest the Manager's application of Exemption 6. Instead, he requests that we review the Manager's determination that portions of the memorandum may be withheld pursuant to Exemption 5.

II. Analysis

A. Applicability of Exemption 5

Exemption 5 is generally recognized as encompassing the attorney- client, attorney work-product and governmental deliberative process privileges. See, e.g., Coastal States Gas Corp. v. DOE, 617 F.2d 854 (D.C. Cir. 1980) (Coastal States). In withholding portions of the memorandum, the Manager relied upon the "deliberative process" and "attorney work product" privileges of Exemption 5. The "deliberative process" privilege shields from mandatory disclosure documents that are "predecisional" and "deliberative," i.e., that were created during agency consideration of a proposed action and that were part of a decision making process. Darci L. Rock, 13 DOE ¶ 80,102 (1985); Texaco, Inc., 1 DOE ¶ 80,242 (1978). The privilege serves to insure open, uninhibited and robust debate of various options by eliminating the fear of disclosure of preliminary viewpoints. Coastal States, 617 F.2d at 866. Thus, by shielding predecisional deliberations from public scrutiny, the quality of final governmental decisions is enhanced. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149-51 (1975) (Sears). The "attorney work product "privilege serves to "provide working attorneys with a ?zone of privacy' within which to think, plan, weigh facts and evidence . . . , and prepare legal theories." Coastal States at 864. This privilege is applicable to documents that were prepared by an attorney "in contemplation of litigation." Id.

In order to properly evaluate the Manager's application of Exemption 5, we conducted a de novo review of the withheld material. For the reasons set forth below, we conclude that the Manager properly determined that the material redacted under Exemption 5 is exempt from mandatory disclosure. As we previously stated, Exemption 5 is applicable to documents that were created during consideration of a proposed action and which were part of a decision making process. The memorandum was created during the DOJ's consideration of the employees' requests for government representation, and consists in large part of a recitation of the Acting Counsel's opinions as to the substance of the employees' requests and the factors that should weigh into the DOJ's decision. The withheld portions are therefore predecisional and deliberative in nature. Furthermore, we conclude that the memorandum was prepared by an attorney "in contemplation of litigation," and may therefore be considered "attorney work product." The memorandum contains legal argument and recommendations as to whether the DOJ should become involved in pending litigation by agreeing to represent parties to that litigation. We therefore find that the withheld portions of the memorandum are exempt from mandatory disclosure pursuant to Exemption 5.

B. Segregability

The fact that a document contains material which is exempt from disclosure does not necessarily make the entire document exempt. The FOIA 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). However, segregation and release of non-exempt material are not necessary when it is inextricably intertwined with the exempt material, such that release of the non-exempt material would compromise the confidentiality of the withheld material. Lead Industries Association v. OSHA, 610 F.2d 70, 83-86 (2d Cir. 1979).

Based on our review of the memorandum, we find that the Manager has already provided Mr. Kasprowicz with all segregable factual information. Although the withheld portions of the memorandum contain some factual matter, we conclude that it is inextricably intertwined with exempt material, such that release of the factual material would expose the deliberative process of which the memorandum is a part. Accordingly, we find that the withheld portions of the memorandum contain no segregable factual material.

C. Public Interest Determination

The fact that material requested falls within a statutory exemption does not necessarily preclude release of the material to the requester. The DOE regulations implementing the FOIA provide that "[t]o the extent permitted by other laws, the DOE will make records available which it is authorized to withhold under 5 U.S.C. § 552 whenever it determines that such disclosure is in the public interest." 10 C.F.R. § 1004.1.

We find that release of the withheld material would not be in the public interest. Although the public does have a general interest in learning about the manner in which its government operates, we find that interest to be attenuated by the fact that the withheld portions of this memorandum are composed mainly of predecisional, non-factual recommendations and opinions, and would therefore be of limited educational value. Any slight benefit that would accrue from the release of the withheld material is far outweighed by the chilling effect that such a release would have on the willingness of DOE employees to make open and honest recommendations on policy matters. Accordingly, we conclude that release of the withheld information would result in foreseeable harm to the interests that are protected by the deliberative process privilege. See FOIA Update, U.S. Department of Justice, Office of Information and Privacy (Spring 1994); Memorandum from Janet Reno, Attorney General, to Heads of Departments and Agencies (October 4, 1993) (in order to withhold material, agency must first determine that release would foreseeably harm basic institutional interests that underlie the deliberative process privilege).

D. Conclusion

For the reasons set forth above, we find that the Manager properly redacted the memorandum provided to Mr. Kasprowicz pursuant to the FOIA, and that release of the withheld material would not be in the public interest. We will therefore deny his FOIA appeal.

It Is Therefore Ordered That:

(1) The Appeal filed by John D. Kasprowicz on April 15, 1997 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 located, or in the District of Columbia.

George B. Breznay

Director

Office of Hearings and Appeals

Date: May 9, 1997

(1)*/ In his Appeal, Mr. Kasprowicz misinterprets the language of this exemption. He expresses a mistaken belief that this exemption is applicable only if the requester is involved in litigation against the agency from which records are sought. The language "which would not be available to a party ... in litigation with the agency" is a description of the types of documents that Exemption 5 was intended to protect, and does not mean that this exemption may only be applied in instances where the requester is party to a lawsuit involving the agency.