Case No. VFA-0293, 26 DOE ¶ 80,191

June 6, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Information Focus on Energy, Inc.

Date of Filing: May 6, 1997

Case Number: VFA-0293

On May 6, 1997, Information Focus on Energy, Inc., (IFOE) filed an Appeal from a determination issued on March 31, 1997, by the Ohio Field Office (OFO) of the Department of Energy (DOE). The determination responded to a request for information filed under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Parts 1004 and 1008.

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 which set forth the types of information agencies are not required to release. Under the DOE's regulations, a document exempt from disclosure under the FOIA shall nonetheless be released to the public whenever the DOE determines that disclosure is not contrary to federal law and in the public interest. 10 C.F.R. § 1004.1.

I. Background

On January 6, 1997, OFO received IFOE's request for, inter alia, "[c]opies of all DOE inspector reports for 1996 for the [DOE's] Fernald and Mound Sites. Also, copies of notes and/or written observations by DOE Facility Representatives and Environment, Safety and Health Site Representatives, or their managers, for 1996 at the Fernald and Mound Sites." Letter from Robert M. Keller, President, IFOE, to Freedom of Information Officer, Headquarters, DOE (October 15, 1996).(1)

OFO issued a determination on March 31, 1997, in which it released documents responsive to the appellant's request, but redacted from those documents portions which it described as "personal identifying information of individuals, including names of employees who may have been involved in various work-related incidents and other purely personal information regarding individuals . . . ." Letter from J. Phil Harmic, Manager, OFO, to Robert Keller, IFOE (March 31, 1997). OFO cited Exemption 6 of the FOIA, 5 U.S.C. § 552(b)(6), as the basis for withholding this information.

In its Appeal, IFOE states,

In the March 31 reply, [OFO] supplied copies of material by Facility Representatives for January, 1996, and presumably, by their immediate supervisors. Not supplied was any material indicating how those notes and/or observations were used by [OFO] managers in directing their contractors. Additional material relating to uses of Facility Representative notes and written observations by [OFO] managers is sought under this Appeal.

Appeal at 1. IFOE also contends that the information redacted from the documents it obtained is not exempt from disclosure under the FOIA. Id. at 1-2.

II. Analysis

A. Additional Material Sought by IFOE

Regarding IFOE's request for additional materials in its Appeal, we have generally held that an appellant may not expand the scope of a request on appeal. Energy Research Found., 22 DOE ¶ 80,114 at 80,529-30 (1992); F.A.C.T.S., 26 DOE ¶ 80,132 at 80,578 (1996). In its original request, IFOE only asked for certain "notes and/or written observations." It did not request "material indicating how those notes and/or observations were used" until it filed the present Appeal. Because this additional request clearly represents an expansion of the scope of IFOE's request, this portion of IFOE's Appeal will be denied.(2)

B. The Applicability of FOIA Exemption 6 to the Information Withheld by OFO

There are three documents from which OFO withheld information under Exemption 6. One is entitled "TEAM MEMBER INFORMATION," and lists the names, titles, workplace addresses, work telephone numbers, and home telephone numbers of seven individuals who work for the DOE, a DOE contractor, or other private companies. OFO withheld only the home telephone numbers from this document. Another document, which is four pages long and handwritten, concerns the discovery of radioactively contaminated uniforms of guards at a DOE facility. The document details the actions taken once the contamination was discovered. Only the names of the affected guards were withheld from this document. The third document contains the results of a review of health and safety procedures and policies implemented by OFO. From one page of this document OFO withheld the names of three DOE employees, as well as substantive comments regarding two of the employees.

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).

1. Whether the Records at Issue are Personnel, Medical, or Similar Files

IFOE argues in its Appeal that because Exemption 6 "applies to personnel records, medical records and similar documents," it does not apply to "[d]ocuments which refer to or document performance of duties by Federal employees . . . ." Appeal at 2. However, in Washington Post, the Supreme Court made clear that "information about an individual should not lose the protection of Exemption 6 merely because it is stored by an agency in records other than ?personnel' or ?medical' files." Washington Post, 456 U.S. at 601. The Court concluded that the scope of Exemption 6 extends to any information contained in government records "which applies to a particular individual . . . ." Id. at 602; see also New York Times Co. v. NASA, 920 F.2d 1002 (D.C. Cir. 1990) (en banc) (applying Exemption 6 to tape recording of the last words of the crew of the space shuttle Challenger). In the present case, it is clear that each of the documents at issue contains information that applies to particular individuals. We therefore reject IFOE's assertion that these documents do not fall within the general scope of Exemption 6.

2. Whether the Information at Issue was Properly Withheld Under Exemption 6

The appellant also contends the OFO improperly withheld information under Exemption 6. In order to determine whether information may be withheld under Exemption 6, an agency must undertake a three-step analysis. First, the agency must determine whether a significant privacy interest would be invaded by the disclosure of the record. If no privacy interest is identified, the record may not be withheld pursuant to Exemption 6. Ripskis v. Department of HUD, 746 F.2d 1, 3 (D.C. Cir. 1984). Second, the agency must determine whether release of the document would further the public interest by shedding light on the operations and activities of the Government. See Department of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (1989); Hopkins v. Department of HUD, 929 F.2d 81, 88 (2d Cir. 1991); FLRA v. Department of Treasury Fin. Management Serv., 884 F.2d 1446, 1451 (D.C. Cir. 1989), cert. denied, 110 S. Ct. 864 (1990). Finally, the agency must weigh the privacy interests it has identified against the public interest in order to determine whether the release of the record would constitute a clearly unwarranted invasion of personal privacy. Reporters Committee, 489 U.S. at 762-70.

a. The Privacy Interests

Regarding the home telephone numbers of individuals withheld from IFOE, we find that significant privacy interests of these individuals would be affected by the release of this information. In finding that federal employees have a privacy interest in their home addresses, the Supreme Court has reasoned that "[m]any people simply do not want to be disturbed at home by work-related matters. . . . We are reluctant to disparage the privacy of the home, which is accorded special consideration in our Constitution, laws, and traditions." Department of Defense v. Federal Labor Relations Auth., 510 U.S. 487, 501 (1994) (citations omitted). The Court recognized that "home addresses often are publicly available through sources such as telephone directories and voter registration lists, but ?[i]n an organized society, there are few facts that are not at one time or another divulged to another.'" Id. at 500 (quoting Reporters Committee, 489 U.S. at 763). The same reasoning leads us to conclude here that the individuals whose home telephone numbers were withheld by OFO have an significant interest in preventing the further dissemination of this information.

We next consider the privacy interests of the guards whose names appear in a document regarding the exposure of their uniforms to radiation. In an analogous prior case, we found that the subjects of human radiation experiments had a significant interest in protecting their names from disclosure. Morrison & Foerster, 24 DOE ¶ 80,107 (1994). We noted that the "language of the FOIA clearly indicates that preventing the public disclosure of an individual's medical condition is among the core purposes of Exemption 6." Id. at 80,517 (citing Rural Hous. Alliance v. Department of Agric., 498 F.2d 73, 77 (D.C. Cir. 1974)). In the present case, the document in question does not reveal the specific impact of any radiation exposure on the medical condition of the guards. However, given the potential medical effects of radiation exposure, we conclude that the guards have a substantial privacy interest in the fact that they were or may have been exposed to radiation.

The DOE employees who are referred to in the third document in question also have a privacy interest that would be affected by the disclosure of their identities. The document contains comments addressing their job performance, and the courts have found that employees have substantial privacy interests with respect to such information, even if the information is favorable to an employee. See, e.g., Ripskis, 746 F.2d at 3 (D.C. Cir. 1984).

b. The Public Interest

Having found that significant privacy interests are at stake in all of the information withheld by OFO, we next must determine if these interests are outweighed by the public interest in disclosure of the information. In making this determination, as we note above, we look to whether release of the information would further the public interest by shedding light on the operations and activities of the Government.

First, we find that no public interest would be served by release of the home telephone numbers withheld by OFO, as this information reveals nothing about the operations and activities of the Government. Similarly, we do not see how the disclosure of the names of the guards whose uniforms were contaminated by radiation would provide any information to the public regarding the workings of its Government. Although the fact that the uniforms were contaminated and the actions taken in response are matters of public interest, that information has already been released, and we find that no additional public interest would be served by the release of the names of the guards to whom the uniforms belonged. Thus, with respect to these two documents, we find that there is not a public interest in release of the information sufficient to outweigh the privacy interest at stake.

Finally, we turn to the issue of whether disclosing the identities of the DOE employees in the third document at issue would shed light on the operations and activities of the Government. IFOE argues in its Appeal that withholding the names of these individuals "prevents the public from holding its Federal and contractor employees accountable for actions which may protect or harm the health of employees and members of the public (including themselves)." Appeal at 2.

We agree with the appellant that there is a strong public interest in the operations and activities of the DOE as they affect the health and safety of the public and of DOE and contractor employees, and the document at issue does contain an appraisal of OFO's practices and policies in this area. However, the narrow question we face here is whether identifying individual DOE employees would shed light on those activities. The courts have generally found that where there is proven wrongdoing of a serious and intentional nature by high-level agency employees, the public interest in holding individual employees accountable for their actions outweighs any interest of such employees in shielding their identity. See, e.g., Stern v. Federal Bureau of Investigation, 737 F.2d 84, 94 (D.C. Cir. 1984) (public interest in "malfeasance by [a] senior FBI official . . . is not outweighed by his own interest in personal privacy"). On the other hand, in weighing privacy interests against the public interest in learning about misconduct by lower-level employees, the courts have found that the balance tips in favor of the privacy interest of the employee. Id. at 92 (privacy interest of lower-level employees "culpable only for inadvertence and negligence" outweighs the public interest in their identities). In the present case, two of the three individuals whose identities have been withheld are managers who have some level of responsiblity for implementing OH health and safety policy (the third individual is a general engineer at OH). However, regardless of the level of responsiblity exercised by these individuals, the document does not reveal serious and intentional wrongdoing on their part or even contain allegations of such misconduct. Indeed, it appears from our review of the document that it contains only the opinions of an observer on the health and safety activities of OFO. We therefore conclude that the public interest in the identities of these employees does not outweigh the privacy interests of the employees discussed above.

However, based on our review of the third document, we find that OFO withheld more information than was necessary to conceal the identities of the employees named in that document. Specifically, OFO withheld substantive comments of the author of the document that, by themselves, would not identify the employees in question. Such information appears after the first and second bullet on that page and at the beginning of the last line of material redacted in the document. We will therefore remand this matter to OFO to segregate the information in this document that does not reveal the identities of the three DOE employees, and to release that information or provide a basis other than FOIA Exemption 6 for its withholding.(3) In all other respects, the present Appeal will be denied.

It Is Therefore Ordered That:

(1) The Appeal filed by Information Focus on Energy, Inc., on May 6, 1997, Case Number VFA-0293, is hereby granted as specified in Paragraph (2) below, and is denied in all other respects.

(2) This matter is hereby remanded to the Department of Energy's Ohio Field 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 the provisions of 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 6, 1997

(1) IFOE also requested documents concerning the DOE's Savannah River Site. Copies of the request, which was filed with DOE Headquarters, were forwarded to OFO and the DOE's Savannah River Operations Office.

(2) Concurrent with the filing of IFOE's Appeal, OFO received a request from IFOE for these additional materials. Letter from Lewis Holman, IFOE, to Freedom of Information Officer, OFO (May 3, 1997) (received by OFO on May 6, 1997).

(3) It is possible that this information may be subject to withholding under the deliberative process privilege of FOIA Exemption 5. However, even if the information may be withheld under that Exemption, the information should be released unless OFO "reasonably foresees that disclosure would be harmful to an interest protected" by the Exemption. Memorandum from Attorney General Janet Reno to Heads of Departments and Agencies (October 4, 1993).