Case No. VFA-0290, 26 DOE ¶ 80,188

May 23, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Bonita L. Haynes

Date of Filing: April 25, 1997

Case Number: VFA-0290

On April 25, 1997, Bonita Haynes (Appellant) filed an Appeal from a final determination issued on March 25, 1997, by the Department of Energy's (DOE) Office of Inspector General (IG). In that determination, the IG released a redacted copy of a document requested by the Appellant under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004. This Appeal, if granted, would require the DOE to release the withheld portions of that document.

I. BACKGROUND

The Appellant submitted a request for information to the IG seeking copies of a memorandum dated December 29, 1993 from IG case file No. I94RS033. Determination Letter at 1. On March 25, 1997, the IG issued a determination in response to this request releasing that document to the Appellant. However, the IG redacted the names of two individuals from the document. On April 25, 1997, the Appellant filed the present Appeal, contending that the IG's withholding of the two names 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.

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 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). 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.

The IG has found a privacy interest in the identities of the two individuals whose names have been withheld. The Determination letter states in pertinent part:

Names and information that would tend to disclose the identity of certain individuals have been withheld pursuant to Exemptions 6 and 7(C). Individuals involved in Office of Inspector General investigative matters, which in these cases include subjects, witnesses, sources of information and other individuals, are entitled to privacy protections so that they will be free from harassment, intimidation and other personal intrusions.

Determination Letter at 1. Because of the obvious possibility of harassment, intimidation, or other personal intrusions, the courts have consistently recognized significant privacy interests in the identities of subjects, witnesses, and other sources of information. 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). Accordingly, we have followed the courts' lead. James L. Schwab, 21 DOE ¶ 80,117 at 80,556 (1991); Lloyd R. Makey, 20 DOE ¶ 80,129 (1990).

One of the two individuals whose names are being withheld in the present case appears to be a potential subject of an IG investigation. Accordingly, the IG's identification and description of that individual's privacy interest is appropriate. However, the context of the document from which the names were redacted indicates that the second individual was neither a subject, a witness, nor a source of information. Rather this individual was a federal employee to whom the matter discussed in the memo was referred for further consideration. Therefore, the rationale supplied in the determination letter by the IG does not explain why it found that the federal employee had a protectable privacy interest. No other privacy interest in withholding this individual's identity is readily apparent. Consequently, we are remanding this portion of the Appeal to the IG. On remand the IG should either release this information or provide an adequate justification for its withholding.

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. Consequently, 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).

Because release of a subject's identity could reasonably be expected to subject him or her to harassment or intimidation or other personal intrusions, we find that significant privacy interests exist for the subject. It is well settled that the privacy interests of individuals that are the subjects of government investigations outweigh the public interest in the disclosure of their identities. See Department of Air Force v. Rose, 425 U.S. 352, 381 (1976). 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 subject's identity could reasonably be expected to constitute an unwarranted invasion of personal privacy. Accordingly, we find that the identity of the subject was properly withheld under Exemptions 6 and 7(C).

While we are strongly committed to keeping the public fully informed about DOE actions, we are also mindful of the need to preserve the privacy rights of subjects. By releasing the responsive document with only those redactions necessary to prevent identification of specific individuals, the agency can provide as much information as possible while safeguarding individual privacy rights.

However, since the IG has not shown that release of the federal employee's name would intrude upon a protectable privacy interest, we are remanding that portion of the Appeal to the Office of Inspector General for further processing in accordance with the instructions set forth above.

It Is Therefore Ordered That:

(1) The Freedom of Information Act Appeal filed by Bonita Haynes on April 25, 1997 (Case Number VFA-0290) is hereby granted and remanded to the Office of Inspector General for further processing in accordance with the instructions set forth above and is denied in all other aspects.

(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: May 23, 1997