Case No. VFA-0294, 26 DOE ¶ 80,197

June 27, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner:Patricia L. Baade

Date of Filing:June 3, 1997

Case Number: VFA-0294

On June 3, 1997, Patricia L. Baade (Appellant) completed the filing of an Appeal from determinations issued on April 3, 1997 and April 23, 1997, by the Department of Energy's Freedom of Information Act/Privacy Act Division and the Office of Inspector General, respectively.(1)These determinations were issued in response to a request for information submitted 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, and the Privacy Act, 5 U.S.C. § 552a, as implemented by the DOE in 10 C.F.R. Part 1008. In this Decision and Order, we will determine whether the DOE must release or identify materials withheld under FOIA Exemption 7(C), 5 U.S.C. §552(b)(7)(C), and conduct a further search for documents responsive to the Appellant's FOIA request.

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.

BACKGROUND

On February 2, 1997, the Appellant submitted a FOIA and Privacy Act request to the FOIA/Privacy Act Division seeking copies of any records pertaining to her that are in the possession of various DOE offices, including the Office of Economic Impact and Diversity (ED) and the Office of Inspector General (OIG).(2) The FOIA/Privacy Act Division requested that ED and OIG respond separately to the Appellant. The FOIA/Privacy Act Division then coordinated a search by the Offices of Personnel, Energy Intelligence, General Counsel and Safeguards and Security. On February 11, 1997, the FOIA/Privacy Act Division sent a letter to the Appellant requesting that she supply identifying information and fill out DOE Form 1800.1 for Privacy Act requests. This is a standard practice of the FOIA/Privacy Act Division which is followed in order to protect the privacy rights of individuals. The Appellant did not respond to that letter. On April 3, 1997, the FOIA/Privacy Act Division issued its determination, stating that the Offices of Personnel, Energy Intelligence, General Counsel and Safeguards and Security could not locate any responsive documents. On April 23, 1997, the OIG issued a separate determination, stating that because the Appellant had not supplied the information requested by the FOIA/Privacy Act Division, OIG treated the Appellant's request as a third-party request. Therefore, it stated,

[t]he Office of Inspector General neither confirms nor denies the existence of records responsive to your request. Lacking an individual's consent, an official acknowledgment of an investigation, 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. Refer to 5 U.S.C. § 552(b)(7)(C).

On June 3, 1997, the Appellant completed the filing of the present Appeal in which she contends that DOE's search for documents was inadequate and that OIG should release to her any responsive documents that it possesses.(3)

ANALYSIS

This Decision and Order will focus on the adequacy of DOE's search for records responsive to the Appellant's request and the propriety of OIG's refusal to confirm or deny the existence of responsive records. As detailed below, we have decided to remand this matter to the Headquarters' FOIA Office to conduct an additional search for responsive records, and we uphold OIG's refusal to confirm or deny the existence of records responsive to the Appellant's request.

I. Adequacy of the Search

We have held that a FOIA request deserves a thorough and conscientious search for responsive documents. When we have found that a search was inadequate, we have consistently remanded the case and ordered a further search for responsive documents. E.g., Native Americans for a Clean Environment, 23 DOE ¶ 80,149 (1993); Marlene R. Flor, 23 DOE ¶ 80,130 (1993); Eugene Maples, 23 DOE ¶ 80,106 (1993). However, the FOIA requires that a search be reasonable, not exhaustive. "The standard of reasonableness that we apply to the agency search procedures does not require absolute exhaustion of files; instead it requires a search reasonably calculated to uncover the sought materials." Miller v. Department of State, 779 F.2d 1378, 1384-85 (8th Cir. 1985).

We first contacted the FOIA/Privacy Act Division to determine how the search had been coordinated. We learned that despite the fact that the Appellant had named five particular offices - the DOE Employee Counseling Services, Office of the Executive Secretariat, "health clinic," Office of the Assistant Secretary for Policy and International Affairs and the FOIA/Privacy Act Division itself as offices she believes possess responsive documents, none of these offices was searched. See Record of Telephone Conversation between Tonya Woods and Dawn Goldstein (May 20, 1997). Further, we have now learned that the Appellant was an employee of the Energy Information Administration (EIA), and that departmental element has not been searched for responsive records. In addition, on the basis of the Appellant's letter to this Office received on June 3, 1997, we now believe that the Chief Financial Officer may possess responsive documents concerning an Equal Employment Opportunity case settlement the Appellant received in approximately 1985. Further, as explained below, it is possible that the Office of Labor/Management and Employee Services may possess responsive documents. We therefore must remand this case to the FOIA/Privacy Act Division in order that these eight offices be searched for responsive documents.(4)

We then contacted the four offices that were searched to determine the extent of the searches performed. We learned that the Office of Safeguards and Security (OSS) had not been aware of the fact that the Appellant was a DOE employee from at least October 1, 1977 until July 15, 1985. OSS informed us that while microfiche records show that OSS had at least formerly possessed records pertaining to the Appellant, it was uncertain whether it had retained these records. It therefore agreed to conduct a new search for respective documents. See Record of Telephone Conversation between Victor Hawkins, OSS, and Dawn Goldstein (May 21, 1997).

The Office of Energy Intelligence (OEI) informed us that it possesses an extensive index of the names of all persons in its files. This index includes records dating from the time the DOE employed the Appellant. OEI informed us that none of the three names the Appellant used in the past or present is listed in its files. See Record of Telephone Conversation between Ed McGinnis, OEI, and Dawn Goldstein (May 22, 1997). We believe that OEI has conducted a reasonable search.

Marilyn Greene of the Office of Personnel informed us that it had not realized that the Appellant had ended her tenure at DOE some twelve years ago. The Appellant's personnel records, including any health insurance records, which were formerly possessed by DOE, are currently the property of the National Personnel Records Center in St. Louis. See Record of Telephone Conversation between Marilyn Greene and Dawn Goldstein (May 22, 1997); Record of Telephone Conversation between Verlette Moore, FOIA/Privacy Act Division, and Dawn Goldstein (June 11, 1997). The Appellant may make a request of the National Personnel Records Center by writing to: 111 Winnebago Street, St. Louis, MO 63118-4199.

Two individuals at the Office of Assistant General Counsel for General Law (OGC), Isiah Smith and Maryann Shebek, were assigned to conduct a search of OGC. After learning from this Office of the age of any possible responsive documents, Isiah Smith informed us that he planned to conduct a further search for documents responsive to the Appellant's request. See Record of Telephone Conversation between Isiah Smith, OGC, and Dawn Goldstein (June 2, 1997). Maryann Shebek informed us that after conducting a new search, records responsive to the Appellant's request had been found. See Record of Telephone Conversation between Maryann Shebek, OGC, and Dawn Goldstein (June 2, 1997). According to Abel Lopez of OGC, his office planned to release those documents to the Appellant in a new determination which would also include the results of Mr. Smith's further search. See Record of Telephone Conversation between Abel Lopez and Dawn Goldstein (June 4, 1997). Ms. Shebek further informed us that Alison Davidow of Labor/Management and Employee Services may also possess responsive records. See Record of Telephone Conversation between Maryann Shebek and Dawn Goldstein (June 2, 1997).

Consequently, we shall direct this matter to the FOIA/Privacy Act Division for further action. Upon receiving the relevant files, the FOIA/Privacy Act Division shall coordinate a new search involving the offices mentioned above for a further or new search. It shall identify all documents responsive to the Appellant's request and either release them or provide adequate justification for withholding any portion of them.(5)

II. OIG's Refusal to Confirm or Deny the Existence of Records(6)

An agency's statement in response to a FOIA request that it will neither confirm nor deny the existence of records is commonly called a "Glomar" response.(7) A Glomar response is justified when the records sought, if they exist, would be exempt from disclosure under the FOIA, and the confirmation of the existence of such records would itself reveal exempt information. See Antonelli v. F.B.I., 721 F.2d 615 (7th Cir. 1983). As detailed below, these circumstances exist here, and OIG correctly refused to admit or deny the existence of records involving the Appellant.

OIG has a consistent policy of refusing to confirm or deny the existence of records in response to a FOIA request when the circumstances described in Keci Corporation, 26 DOE ¶ 80,150 (1997) and William H. Payne, 26 DOE ¶ 80,144 (1996) exist. Thus, first-party requesters (people who request information about themselves) must submit DOE Form 1800.1 and identifying information in order to ensure that individual privacy is protected to the highest degree possible. See Record of Telephone Conversation between Jackie Becker, OIG, and Dawn Goldstein (May 19, 1997). Because the Appellant never provided such information, OIG had no choice but to treat her as a third-party requester.(8) While we would prefer not to do so, in this Decision we therefore must consider the Appeal as though the FOIA request were filed by a third party, not by the subject of the information requesting her own records.

A consistent Glomar response to such FOIA requests is necessary to protect the privacy rights of individuals who have been the subjects of OIG investigations. If OIG had stated that documents responsive to the Appellant's FOIA request exist, but claimed that the documents themselves were exempt from disclosure under Exemption 7(C), it would have revealed the existence of a law enforcement investigation involving the subject of the requested information.(9) If OIG uses Glomar responses only when responsive records do exist and denies the existence of responsive documents when they do not exist, then FOIA requesters could infer that OIG refuses to confirm or deny the existence of enforcement records only when such records actually exist. This could compromise the privacy rights of individuals who may be the subjects of third-party FOIA requests in the future.

We find that OIG was justified in providing a Glomar response to the Appellant's FOIA request because the records sought, if they exist, would be exempt from disclosure to third parties under the FOIA and the confirmation of the existence of such records would itself reveal exempt information. Accordingly, we will deny the portion of the Appeal that relates to OIG's refusal to confirm or deny the existence of enforcement records concerning the subject of the information.

III. Waiver

The Appellant claims that OIG has placed information from her alleged enforcement file into the public domain by disseminating the contents of her alleged OIG file and other information about her to various state and local agencies, as well as to the National Crime Information Center (NCIC) Interstate Identification Index. The Appellant therefore implies that DOE has waived the application of Exemption 7(C) to her alleged file because it has previously disclosed the contents therein.

However, the Appellant has failed to show that IG has taken any such action. The NCIC record that the Appellant sent to us does not include any mention of the topic of her alleged OIG enforcement file, nor does it demonstrate the source of the information contained in it. In addition, the OIG denies categorically that the OIG ever submits reports of any kind to the NCIC. See Record of Telephone Conversation between Jackie Becker, OIG, and Dawn Goldstein (May 19, 1997).

The extent to which the DOE has waived FOIA exemptions depends on the circumstances of the disclosure. Carson v. Department of Justice, 631 F.2d 1008, 1016 n.30 (D.C. Cir. 1980). As found above, the Appellant has not demonstrated that any contents of an alleged OIG file relating to her have been disclosed either by official or unofficial departmental action.(10) Moreover, even if the DOE had released information into the NCIC, this database would not be considered the public domain since the database can only be used only by law enforcement agencies. See Record of Telephone Conversation between Jackie Becker and Dawn Goldstein (May 19, 1997). We therefore reject the Appellant's argument that the DOE has waived Exemption 7(C).

CONCLUSION

We will grant the present Appeal to the extent that we will require that DOE conduct a further search for documents. We will remand this matter to the Headquarters' FOIA/Privacy Act Division for a new determination with instructions to conduct a search for additional documents in other DOE offices. We will deny the portion of the Appeal that relates to OIG's refusal to confirm or deny the existence of enforcement records concerning the subject of the information.

It Is Therefore Ordered That:

(1) The Appeal filed by Patricia L. Baade on June 3, 1997, is hereby granted as set forth in Paragraph (2) below, and is in all other respects denied.

(2) This matter is remanded to the FOIA/Privacy Act Division of the Office of the Executive Secretariat which shall coordinate a search of the following departmental elements for documents responsive to the Appellant's February 3, 1997 FOIA request: DOE Employee Counseling Services, Office of the Executive Secretariat, the Forrestal and Germantown health clinics, Office of the Assistant Secretary for Policy and International Affairs, FOIA/Privacy Act Division, Energy Information Administration, Chief Financial Officer, Office of Labor/Management and Employee Services, Office of Safeguards and Security and the Office of General Counsel. The FOIA/Privacy Act Division of the Office of the Executive Secretariat shall issue a new determination that reflects the results of this additional search.

(3) This is a final order of the Department of Energy of 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 27, 1997

(1) 1/ The Appellant initially filed a submission with the Office of Hearings and Appeals (OHA) on May 12, 1997. The OHA held the submission in abeyance for reasons explained below. We consider the Appeal to have been filed as of our June 3, 1997 receipt of her letter dated May 30, 1997 notifying this Office that she was not appealing the DOE's Privacy Act determinations. We further note that we have accepted the Appeal of the April 3, 1997 determination, despite its lack of timeliness, because of the history of this matter. The DOE's search for documents responsive to the Appellant's FOIA and Privacy Act request had been assigned to different DOE offices which responded to her at different times. The Appellant was entitled to see which, if any, documents she received, before appealing the adequacy of any of the offices' searches.

(2) 2/ In her request, the Appellant referred to certain Central Intelligence Agency (CIA) documents pertaining to her which she believes are in the possession of the DOE. We note that any such documents in the possession of the DOE are subject to the FOIA. However, if the Appellant is requesting documents in the possession of the CIA (or any other federal or local agencies), she will need to make separate requests of those agencies.

(3) 3/ On May 22, 1997, the OHA requested that the Appellant supply the requested identifying information. On June 3, 1997, we received a response from the Appellant, notifying us that she declined to submit the requested information and, further, is only appealing the DOE's determinations under the FOIA, not under the Privacy Act. See Letter from Appellant to Dawn Goldstein, OHA at 3 (June 3, 1997).

We also note that although ED believes it has responded in substance to the Appellant's FOIA request, ED did not describe its response as a FOIA response nor notify the Appellant of her right to appeal its response to this Office. ED has not yet decided whether to make a formal FOIA response. See Records of Telephone Conversations between Tyrone Levi, ED, and Dawn Goldstein (June 3, 1997 and June 17, 1997); Record of Telephone Conversation between Tonya Woods, FOIA/Privacy Act Division and Dawn Goldstein (May 20, 1997). However, according to the Appellant's June 3, 1997 letter to this Office, she is not appealing ED's response.

(4) 4/ There are health units at both the Forrestal and Germantown locations of DOE. We suggest that both health units be searched for the Appellant's records.

(5) 5/ We note that the Appellant has used three names, Patricia L. Baade, Patricia L. Bryant, and P. Lee Baade, and urge the DOE offices to conduct their searches using each of the three names.

(6) 6/ The Appellant has requested that the OIG, rather than the OHA, respond to this portion of her FOIA Appeal. Under DOE regulations, OHA possesses the sole authority to process appeals of FOIA determinations, see 10 C.F.R. § 1004.8(a), with the exception of appeals within the provisions of 10 C.F.R. § 1004.8(f) (concerning classified and similar information). Accordingly, we must deny her request.

(7) 7/ "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 (D.C. Cir. 1976) (agency responded to a request for documents pertaining to a submarine-retrieval ship named the Hughes Glomar Explorer by neither confirming nor denying the existence of any such documents).

(8) 8/ Ms. Becker stated that if an OIG file does exist pertaining to the Appellant, OIG will release the contents of it, to the Appellant only, when DOE Form 1800.1 and the identifying information is submitted. Id.

(9) 9/ Exemption 7(C) of the FOIA, 5 U.S.C.§ 552(b)(7)(C), allows an agency to withhold "records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information . . . (C) 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).

(10) 10/ Unauthorized disclosures, in any event, would not constitute a waiver of exemption by the DOE. Simmons v. Department of Justice, 796 F.2d 709, 712 (4th Cir. 1986).