Case No. VFA-0292, 26 DOE ¶ 80,190

May 29, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Mary Feild Jarvis

Date of Filing: May 2, 1997

Case Number: VFA-0292

On May 2, 1997, Mary Feild Jarvis, Ph.D., of Richland, Washington filed an Appeal from a determination issued on April 24, 1997 by the Richland Operations Office (Richland Operations) of the Department of Energy (DOE). That determination denied in part Dr. Jarvis' request for information submitted pursuant to 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 some of the withheld information.

The FOIA requires that agency records that are held by a covered branch of the federal government, and that have not been made public in an authorized manner, generally be released to the public upon request. 5 U.S.C. § 552(a)(3). In addition to this requirement, the FOIA lists nine exemptions that set forth the types of information that may be withheld at the discretion of the agency. 5 U.S.C. § 552(b)(1)-(b)(9); 10 C.F.R. § 1004.10(b)(1)- (b)(9). The DOE regulations further provide that documents exempt from mandatory disclosure will nonetheless be released to the public if the DOE determines that disclosure is not contrary to federal law and is in the public interest. 10 C.F.R. § 1004.1.

BACKGROUND

On November 26, 1995, Dr. Jarvis, a DOE employee in Richland, Washington, filed a FOIA request with the DOE Office of the Inspector General seeking documents pertaining to one of its investigations. On February 25, 1997, the Office of the Inspector General referred fourteen responsive documents to Richland Operations, as the originating office, for a release determination. Richland Operations issued its determination on April 24, 1997. It released

thirteen of the fourteen documents in full. However, it withheld portions of Document 2, a multi-part item that addresses a possible breach of the standards of ethical conduct by a DOE employee. To the extent it is relevant to this Appeal, Richland Operations withheld portions of an attachment to a letter to the DOE Regional Inspector General from the Richland Operations Office Chief Counsel that is part of Document Two. This two page attachment details the procedural history of the particular ethics concern. It also has a brief sketch of the substance of the concern. From this enclosure, Richland Operations Office deleted the name and routing symbol of the person who reported the concern as well as virtually the entire substance of the concern. The determination letter states that it withheld "names and other personal identifiers" under Exemption 6 of the FOIA, which protects personal privacy. The information withheld, however, goes well beyond the usual meaning of "personal identifiers," which are usually addresses, phone numbers, employee and social security numbers and the like, a definitional matter which has caused some difficulty in processing this Appeal. Dr. Jarvis only appeals the withholdings from this letter attachment in Document 2.

ANALYSIS

Exemption 6 permits an agency to make a discretionary withholding of information that must otherwise be released in response to a FOIA request if the materials are "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); 10 C.F.R. § 1004.10(b)(6). After ensuring that the documents meet the threshold test for types of material covered by Exemption 6, an agency must balance the public interest in disclosure with the privacy interest involved. Department of State v. Ray, 502 U.S. 164, 175 (1991); Department of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 762 (1989) (Reporters Committee); Department of the Air Force v. Rose, 425 U.S. 352, 372 (1976) (Rose); Harold H. Johnson, 21 DOE ¶ 80,148 at 80,640 (1991).

First, we believe that Document 2 meets the Exemption 6 threshold test as of being within the category of "personnel and medical files and similar files." The Supreme Court has taken a spacious view of what falls within this phrase. The Court has made clear that Exemption 6 extends to "detailed Government records on an individual which can be identified as applying to that individual." Department of State v. Washington Post Co., 456 U.S. 595, 602 (1982) (quoting H.R. Rep. No. 89-1497, at 11 (1966), reprinted in 1966 U.S.C.C.A.N. 2418, 2428). See also Annotation, When Are Government Records "Similar Files" Exempt From Disclosure Under Freedom of Information Act Provision (5 USCS § 552(b)(6)) Exempting Certain Personnel, Medical and "Similar Files", 106 A.L.R. Fed. 94, 102 (1992). In this case, the document under consideration deals with an alleged ethical lapse by a particular DOE employee. This easily falls within the Supreme Court's Exemption 6 threshold definition. See Rose, 425 U.S. at 376-80; cf. Schonberger v. National Transp. Safety Bd., 508 F. Supp. 941, 943 (D.D.C. 1981) (material on employee discipline qualifies for Exemption 6 treatment).

In applying the balancing part of the Exemption 6 test, we must examine each type of information withheld, identify any privacy interest involved and weigh that against any public interest in the material as defined by the Supreme Court. In this case, because of the variety of material involved, we must consider Document 2 almost on a paragraph-by-paragraph basis.

First, Richland Operations withheld the name and an identifying address for the person who brought forward the ethics concern. We have not previously dealt with this particular type of name withholding. Nor have we unearthed any court decision dealing with the issue. However, we have consistently withheld the names of people who were sources in Inspector General investigations. Like an ethics concern, those documents involve inquiries into possible violations of legally binding standards of conduct. In those cases, we have found that the sources have a considerable privacy interest in having their identity shielded from disclosure for fear of the possibility of unwanted contacts or harassment. See, e.g., J.B. (Jack) Truher, 26 DOE ¶ 80,154 at 80,675 (1997) (and cases cited therein); Keci Corp., 26 DOE ¶ 80,150 at 80,661 (1997) (and cases cited therein). We find that rationale persuasive in this case as well.

Second, Richland Operations withheld almost the entire content of the substance of the concern. Virtually all of the withheld material consists of neutral recitations of official government activity by government employees, the names of government employees, and the name of one contractor employee. We have examined the unredacted document in detail and are unable to discern any privacy interest in most of the material withheld.

We have consistently found that names, by themselves, reveal nothing private about a person and, therefore, are not the type of information that creates a protectable privacy interest for the purposes of Exemption 6. The News Tribune, 25 DOE ¶ 80,181 at 80,700 (1996). A privacy interest may be created only when an individual's name is linked with some other piece of information "which reveals something personal about an individual." Id. at 80,699. In an Exemption 6 analysis, we must examine any linkage of information involved to determine the extent of any privacy interest. In this case, with the exception of the name of the source, the only links concern place of employment and knowledge of events. So far as government employees are concerned, we find there is no privacy interest involved in this type of linkage. As far as a link of a name with the place of employment, we have said in the past, "[a]bsent unusual circumstances usually directly related to the nature of the job . . . individuals do not have a privacy interest in the fact that the federal government employs them." The Cincinnati Enquirer, 25 DOE ¶ 80,206 at 70,769 (1996). Nor do we find any privacy interest in the knowledge of the facts surrounding the alleged ethics concern. The knowledge of these facts arises entirely from official government business. While there may be some limited circumstances when an agency might, in the course of official duties, acquire knowledge (such as criminal activity which might put that person in some form of jeopardy) for which privacy protection under Exemption 6 might be appropriate, such is not the case here. As a general matter, there simply is no privacy interest in material stating or describing a federal employee's official actions or duties "unless the work somehow reveals something personal or private about the individual . . . or there is some other special circumstance (for example, a reasonable, articulable belief that the person could be subject to harassment. . .)." Id. (citations omitted). See also William H. Payne, 25 DOE ¶ 80,190 at 80,727 (1996). There appears to be little, if any, information of this latter type in the withheld material, and what information that arguably might fall in that category can be sufficiently shielded by a more selective redaction.

Similarly, we find no privacy interest in the name and affiliation of a contractor employee who has direct knowledge of the facts of the potential ethics irregularity. We have recently found no privacy interest involved in the names and service dates of employees of Westinghouse Hanford Company, a DOE contractor. Diane C. Larson, 26 DOE ¶ 80,112 at 80,539-40 (1996). If this more detailed information does not present a privacy concern, it is unlikely in most cases that merely being named as a DOE contractor employee raises a privacy issue. Thus, absent some special consideration not present in this case, the simple information that a particular person works for a specified DOE contractor does not present a privacy interest. In addition, as we found above, in this case we see no privacy interest in knowledge of these official government activities surrounding the potential ethics concern.

Richland Operations states that it withheld the content of the ethics concern and the events surrounding it because it believes that a person knowledgeable about the case could determine who reported the ethics concern unless all the material is withheld. Our review of the document does not lead us inexorably to that conclusion. The enclosure enumerates six DOE employees and one contractor employee who have direct knowledge of the facts of the possible ethics concern. While a privacy concern may arise if there is a small group of people and one could tell from the withheld information which member of the group raised an allegation of misconduct, Anibal L. Taboas, 25 DOE ¶ 80,207 at 80,773 (1996), we do not believe that is the situation here. The withheld information is so general and presented in such a neutral manner, that it seems unlikely that anyone could positively identify the source. In fact, the information in the attachment is so sketchy that someone who does not have direct knowledge of the facts, but who was told quickly about them, easily would have sufficient information to raise the ethics concern. Even if we could limit consideration to actual participants in the underlying activity, the enclosure clearly states that its enumeration of persons is not an exclusive list. Thus the group of people who have direct knowledge of and could have reported the alleged ethics concern necessarily extends beyond the withheld roster in Document 2. Therefore, once the name of the person who reported the concern is excised in those spots where the person is identified as the source of the concern (along with associated phrases), one cannot tell whether or not that name even appears in the enumeration. When one reasonably cannot identify who the reporting person is, then we believe there is no privacy interest involved in the material. Id.; see also Rose, 425 U.S. at 380 (summaries of Air Force Academy disciplinary proceedings should be released after redaction of identifying references); Carlos Blanco, 26 DOE ¶ 80,148 at 80,654 (1996) (substantive information should be released if privacy interest can be protected by redaction).

In considering the other part of the Exemption 6 equation for the only item for which we have definitively identified a privacy interest, the name and words associated with the source of the ethics concern, we are compelled to employ the Supreme Court's very narrow definition of what constitutes a public interest. For the purposes of Exemption 6 under the Supreme Court standard, information advances the public interest only if the information is likely to contribute "'significantly to public understanding of the operations of the government.'" Reporters Committee, 489 U.S. at 775 (quoting 5 U.S.C. § 552(a)(4)(A)(iii)). See also Department of Defense v. Federal Labor Relations Auth., 510 U.S. 487, 494-95 (1994). In this case, we cannot discern in the name (and associated material) any public interest that conforms to the Supreme Court standard. As we have noted in other, similar situations where individuals come forth with information about possible infractions, the release of the name tells nothing about the workings of government; conversely, there is a considerable interest in insuring that people feel free to bring possible wrongdoing to the attention of the proper authorities and that this interest is promoted by protecting identities of those who give the government such information. See Michael A. Grosche, 26 DOE ¶ 80,146 at 80,644 (1996).

The only potential public interest identified by the appellant is her claim that she needs the information to pursue potential litigation enforcing the equal employment laws. She has provided no further details of the alleged wrong-doing. However, as both this Office and the courts have made clear, unsubstantiated allegations of misconduct do not rise to the level of a public interest for the purposes of Exemption 6. See William H. Payne, 26 DOE ¶ 80,161 at 80,703 (1997) (and cases cited therein). Thus, in this case, we find that both the public and privacy interests we identified support withholding the name of the person who brought forward the ethics concern and associated phrases.

Accordingly, we will remand this case to Richland Operations. That Office shall issue a new determination either promptly releasing the non-source information or further explaining its withholding by identifying and explaining any privacy interest(s) for some or all of the withheld material and determine whether the identified interest(s) outweigh the public interest in disclosure. See, e.g., Raytheon Co., 25 DOE ¶ 80,156 at 80,640 (1996).

It Is Therefore Ordered That:

(1) The Freedom of Information Act Appeal of Mary Feild Jarvis, OHA Case No. VFA-0292, is hereby granted as specified in Paragraph (2) below, and is denied in all other respects.

(2) This matter is hereby remanded to the Richland Operations Office, 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 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 29, 1997