Case No. VFA-0289, 26 DOE ¶ 80,193

June 13, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Sandra Clayton

Date of Filing: May 16, 1997

Case Number: VFA-0289

On May 12, 1997, Sandra Clayton (Clayton) filed an Appeal from a determination issued to her in response to a request for documents submitted under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the Department of Energy (DOE) in 10 C.F.R. Part 1004. The determination was issued on March 13, 1997 by the Western Area Power Administration (WAPA). This Appeal, if granted, would require that WAPA release responsive documents, if they exist, that were withheld under FOIA Exemption 6, 5 U.S.C. § 552(b)(6).

The FOIA requires that documents held by federal agencies generally be released to the public upon request. The FOIA, however, lists nine exemptions that set forth the types of information that may be withheld at the discretion of an agency. 5 U.S.C. § 552(b). DOE regulations further provide that a document 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

On February 14, 1997, Clayton filed a request with WAPA for "a copy of all documents relating to the investigation and final report on the sexual harassment allegations from [a named individual] in reference to [a named individual]." Letter from Sandra Clayton to Manager, WAPA (February 14, 1997) (Request Letter). In the letter, Clayton also stated:

I am requesting the following:

Request Letter. On March 13, 1997, WAPA responded to Clayton's request and would neither confirm nor deny the existence of records responsive to her request. It responded to the request for documents by stating:

[WAPA] neither confirms nor denies the existence of records responsive to your request. Lacking an individual's consent, or an overriding public interest, even to acknowledge the existence of such records pertaining to an individual could reasonably be expected to constitute an unwarranted invasion of personal privacy.

Letter from FOIA Officer and General Counsel, WAPA, to Clayton (March 13, 1997) (Determination Letter). On April 15, 1997, Clayton replied to WAPA, appealing its decision. Letter from Clayton to FOIA Officer and General Counsel, WAPA (April 15, 1997). That letter was forwarded to the Office of Hearings and Appeals (OHA) and this Appeal was filed on May 16, 1997.

II. Analysis

A. Clayton's Allegations

In her Appeal, Clayton alleges that WAPA's refusal to confirm or deny the existence of responsive records in order to protect the privacy of those participating in the investigation was improper. She argues that DOE should have redacted names from any responsive material, as directed in her request. In addition, she states that she is acquainted with many of the individuals involved in the investigation, and can secure their consent to release the information. She did not address the issue of the public interest in this matter. This Decision and Order will focus on the propriety of WAPA's determination of a privacy interest and its subsequent refusal to confirm or deny the existence of investigatory records concerning a third person. As detailed below, we will uphold both actions.

B. Exemption 6

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).

An agency's statement in response to a FOIA request that it will neither confirm or deny the existence of records is commonly called a "Glomar" response.(1) We have previously used the Glomar response to protect individual privacy in connection with law enforcement proceedings under Exemption 7(C). Keci Corporation, 26 DOE ¶ 80,150 (1997); William Payne , 26 DOE ¶ 80,144 (1996) (finding a strong privacy interest in protecting the identities of individuals who provide information to government investigators). However, WAPA does not allege that any law enforcement proceeding is, or was, at issue in this case. Memorandum of Telephone Conversation between Assistant General Counsel, WAPA, and Valerie Vance Adeyeye (June 3, 1997). Instead, WAPA relied on Exemption 6(2) for its use of the Glomar response. This procedure is equally applicable to protect an individual's privacy interest in sensitive non-law enforcement records such as welfare records, disciplinary records of relatively minor misconduct, or records of employee counseling programs. See Beck v. Department of Justice, 997 F.2d 1489, 1493 (D.C. Cir. 1993); Ray v. I.N.S., 778 F. Supp. 1212, 1214 (S.D. Fla. 1991).

In order to determine whether a record may be withheld under Exemption 6, an agency must undertake a three-step analysis. Richard Levernier, 26 DOE ¶ 80,174 (1997). 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 would constitute a clearly unwarranted invasion of personal privacy (the Exemption 6 standard). See generally Ripskis, 746 F.2d at 3.

(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 ¶ 80,109 (1990).

Clayton argues that she is acquainted with individuals who have participated in the alleged investigation, and can obtain their consent. However, she has not produced any documents supporting this assertion, nor has she proven to us that the individual who is the alleged target of the investigation has waived his or her privacy rights. Accordingly, we find that the individuals whose identities are allegedly 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. The Court held that 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." Reporters Committee, 109 S. Ct. at 1483 (1989). 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 addition, federal courts have consistently denied requests for information identifying specific government employees as the subjects of findings of wrongdoings, explaining that such information sheds no light on the employer agency's actions. See Beck v. Department of Justice, 997 F.2d 1489, 1493 (D.C. Cir. 1993) (refusing to confirm or deny the existence of disciplinary records pertaining to named DEA agents); Department of Air Force v. Rose, 452 U.S. 352, 396 (1976) (denying third party request for names of disciplined Air Force Academy cadets); Ray v. I.N.S., 778 F. Supp. 1212, 1214 (S.D. Fla. 1991) (upholding INS' refusal to confirm or deny existence of investigative records concerning INS officer) (Ray). Clayton has not offered any evidence of an overriding public interest in this matter. We find that release of such information, if it exists, would not contribute significantly to the public's understanding of the operations of WAPA. Therefore, we find no overriding public interest in the alleged investigation.

(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. In this case, merely acknowledging the existence of records would be tantamount to disclosing the fact that an individual has participated in or been the subject of an investigation, the disclosure of which fact would constitute a clearly unwarranted invasion of personal privacy. See Justice Department Guide to the FOIA, Department of Justice (September 1996) at 256. 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, if such information exists, would constitute a clearly unwarranted invasion of personal privacy. Our findings are consistent with those reached by several federal 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; Ray, 778 F. Supp. at 1214 (refusing to confirm or deny the existence of investigative records concerning agency employee in order to protect his reputation and good standing in the community).

For the reasons set forth above, we find that WAPA properly invoked the "Glomar" response and refused to confirm or deny the existence of the requested records under Exemption 6. Accordingly, this Appeal is denied.

It Is Therefore Ordered That:

(1) The Freedom of Information Act Appeal filed by Sandra Clayton on May 16, 1997 (Case Number VFA-0289) 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: June 13, 1997

(1)"Glomar" refers to the first instance in which a federal court upheld the adequacy of such a response. Phillippi v. CIA, 546 F.2d 1009, 1013 (D.C. Cir. 1976) (agency responded to a request for documents pertaining to the submarine-retrieval ship "Glomar Explorer" by neither confirming nor denying the existence of any such documents). See also Minier v. CIA, 88 F.3d 796, 801-02 (9th Cir. 1996) ("neither confirm nor deny" response found proper for request seeking records on individual's employment relationship with CIA).

(2)Even though WAPA informed us that they relied on Exemption 6 of the FOIA, the determination letter did not mention the exemption by name and incorrectly used the less restrictive language of Exemption 7(C), i.e., "could reasonably be expected to constitute an unwarranted invasion of personal privacy." Nevertheless, we are analyzing this case under the correct language of Exemption 6, i.e., "would constitute a clearly unwarranted invasion of personal privacy."